Warren E. Burger: We will hear arguments first this morning in Thornburgh against American College of Obstetricians and Gynecologists. Mr. Gordon, I think you may proceed whenever you are ready.
Andrew S. Gordon: Mr. Chief Justice, and may it please the Court, this appeal is from a decision of the Third Circuit, which in reviewing a preliminary injunction ruling struck down numerous provisions of Pennsylvania's Abortion Control Act. The case presents a variety of questions. First, the Court must decide whether an appeal lies from a decision of a Court of Appeals which strikes down state statutes as unconstitutional but which remands for further proceedings on additional constitutional claims. Next, the Court must determine whether the Court of Appeals' substantive rulings were consistent with this Court's recent decisions on the permissible scope of abortion regulation. And finally, even if the Court finds that the Court of Appeals properly applied the law to the limited record before it, the Court must decide whether it was appropriate for the Court of Appeals to finally declare these provisions of state law unconstitutional before the state has been given a fair opportunity to present evidence in defense of the statute.
Harry A. Blackmun: Mr. Gordon, just as a matter of curiosity, is Governor Thornburgh still a party to this litigation?
Andrew S. Gordon: The parties did agree that he should be removed, but the District Court never entered an order on that, so technically I believe he still is a party, but he will be removed as soon as it is returned to the District Court and the District Court issues an order.
Harry A. Blackmun: Well, the case comes up here in a posture with a high official of Pennsylvania as the lead name, and he vetoed all this legislation. It seems a little strange situation.
Andrew S. Gordon: Well, if I may, he vetoed a prior bill. This particular statute he did sign, and he approved this statute. Now, before discussing the question--
Harry A. Blackmun: But you are taking the position he still is a party?
Andrew S. Gordon: --There has been no order of dismissal issued.
Harry A. Blackmun: Even though the parties have agreed that he should go out.
Andrew S. Gordon: Yes. It is our understanding until the Court issues an order dismissing him that he is still a party. Now, before reaching the questions presented to the Court this morning, I would like to sketch very briefly the procedural history of the case, which is relevant to the issues before the Court. The statute was passed in June of 1982, and it was not until October that this lawsuit was filed. About one month later, the plaintiffs filed a motion for preliminary injunction, and they attached to this motion 40 detailed affidavits. On November 18th of 1982, the District Court issued a procedural order to govern the hearing on the motion for preliminary injunction, and as a part of this order, the District Court directed the parties to agree on stipulations, and also prohibited any party from contesting any fact at the hearing unless that party had positive evidence to offer in support of that particular fact. So, stipulations were agreed upon, but they were agreed upon solely for the purposes of the preliminary injunction hearing, and they were largely drawn from the allegations of the complaint and the complainant's affidavits. The District Court with one minor exception denied the preliminary injunction, and after lengthy consideration, the Court of Appeals struck down numerous provisions of Pennsylvania's statute. First, the jurisdictional question. As I said, the question is whether or not an appeal lies to this Court from a decision of a Court of Appeals striking down some provisions of state law but remanding to the District Court for further proceedings on additional constitutional claims. The appeal statute does not expressly require that to be appealable a decision of a court of appeals must finally dispose of all constitutional issues, and in fact--
William J. Brennan, Jr.: You mean 1254 when you say that?
Andrew S. Gordon: --Twelve fifty-four two, that's right. In fact--
William J. Brennan, Jr.: In other words, because Congress didn't say final judgment expressly, the inference is that Congress intended appealability even when there wasn't a final judgment?
Andrew S. Gordon: --I think it certainly permits that conclusion, but that is not our entire argument. We don't base our entire argument on the omission of the word "final".
William J. Brennan, Jr.: Well, to the extent you base your argument on it at all, what does that do with 1254(1), which allows cert, as you know, before or after rendition of a judgment or decree? Wouldn't that be superfluous if you were right?
Andrew S. Gordon: No, I don't believe so; 1254(2) applies to a very narrow class of cases.
William J. Brennan, Jr.: I am talking about 1254(1).
Andrew S. Gordon: Well, I know, and 1254(1) obviously applies to the broader range of cases. I don't think the Court has ever held for cert that there need be a final order. I think it is entirely consistent, and in fact the original version of the statute enacted in 1925 from which 1254(1) and 1254(2) are derived were worded similarly and very broadly. Namely, both of those sections, and more particularly the predecessor of 1254(2), provided for an appeal in any case in a Court of Appeals if the decision was against the constitutionality of the state statute. And certainly the decision under review here satisfies those general requirements. The decision... the case was properly in the Court of Appeals, and the decision was against the constitutionality of the statute.
William J. Brennan, Jr.: Well, I know, but the question is whether there is a final judgment.
Andrew S. Gordon: We don't argue that there is a final judgment in this case.
William J. Brennan, Jr.: But you say it is nonetheless appealable under 1254(2).
Andrew S. Gordon: Yes, we do.
William J. Brennan, Jr.: I am wondering why you can't read 1254(2) as Congress intending the long time requirement of final judgment obtained here and that 1254(1) was simply an exception.
Andrew S. Gordon: Well, we understand--
William J. Brennan, Jr.: Why can't it be read that way?
Andrew S. Gordon: --Well, the absence of the word "final" permits a reading either way, but it is our position that the general rule of finality does not, cannot, and should not be followed when there are particular policies which are relevant to a specific statute, and which support the conclusion that non-final review should be permitted. As to the particular statute involved in this case, namely 1254(2)--
William J. Brennan, Jr.: Yes, but if we have to read 1254(2) as Congress telling us that you couldn't appeal anything here except a final judgment, that controls us, doesn't it?
Andrew S. Gordon: --I am not sure that I understand your question. If you interpret it as requiring a--
William J. Brennan, Jr.: A final judgment, then-- --That is the end of it. --that is the end of it.
Andrew S. Gordon: --Then we request that the Court grant certiorari in this case. That is our alternative argument. As I was saying, in this particular statute, Congress was concerned about the effect on federal-state relations, which comes about when a federal court strikes down a state statute, and while the power to declare state statutes unconstitutional obviously is necessary if we are to preserve the federalist system, Congress believed that states should be entitled to enforce their laws absent this Court's decision of unconstitutionality. This policy--
William J. Brennan, Jr.: Getting back, if I may, since I had to interrupt, now, as I understand it, there are apparently several provisions of this Pennsylvania statute still before the District Court, are there not?
Andrew S. Gordon: --That's right.
William J. Brennan, Jr.: And as to the five... there are five here, are there not?
Andrew S. Gordon: Yes.
William J. Brennan, Jr.: And as to those five, did not the stipulation of facts expressly reserve the right to make a record in the District Court so that our holdings could be, I gather, changed by subsequent factual developments?
Andrew S. Gordon: That was certainly the intention at the time when that stipulation was entered into.
William J. Brennan, Jr.: Why should we treat with these important questions now? Where do we actually get a true final judgment out of the District Court before we address them?
Andrew S. Gordon: Well, the problem is that the Court of Appeals issued a final judgment as to these particular statutes in this case. There is no other way to interpret their decision other than it being a final declaration as to these provisions that we have brought before the Court this morning that they are unconstitutional, that they cannot be enforced, and that there is nothing that we could prove on remand or should be able to prove on remand that would change that result, so that is the difference.
Byron R. White: Well, would you be satisfied if we simply said the Court of Appeals erred in entering a final Judgment on those issues? It should have just said the injunction was not an abuse of discretion?
Andrew S. Gordon: No, we wouldn't be satisfied with that.
Byron R. White: I wouldn't think you would be. So why are you making this argument? 0 [Generallaughter.]
Andrew S. Gordon: Well, let me tell you why. I don't think that would really get us anywhere for this reason. Plainly, if the Court of Appeals held that the statutes are unconstitutional, they would have if they applied the proper standard of review at the time found that there was a likelihood of success on the part of the appellees on the merits, and it is our position that that conclusion was plainly incorrect.
Byron R. White: So you would have attempted to come here anyway if the Court of Appeals had just said the preliminary injunction was all right?
Andrew S. Gordon: Well, I am not certain that we would have.
Byron R. White: Well, if you wouldn't, why should we do anything more than affirm them as to the preliminary injunction?
Andrew S. Gordon: Well, the difference is this, first of all, that that isn't what they did, and it is clear, I would think, that if that is all this Court does, then it would be an exercise in futility for us to go back to the District Court anyhow, because no District Judge is going to be able to look beyond the fact that the Court of Appeals reached the merits, and feels rather strongly, to say the least, that these provisions are unconstitutional. As I was saying, this policy--
Sandra Day O'Connor: Mr. Gordon, for which of the statutes at issue here is there in your view a need for additional factual record before a final adjudication on constitutionality is proper?
Andrew S. Gordon: --Let me say that it is our position based upon the appellee's apparent conception that they have no additional evidence to offer that the Court may reach the merits and uphold these statutes based on this record. If the Court disagrees with our position on the merits--
Sandra Day O'Connor: Well, you take the position then that no additional factual record is necessary for the final decision on any of these statutes and their validity?
Andrew S. Gordon: --We take the position that the Court may uphold these statutes based on this record. However, if the Court concludes that the Court of Appeals properly applied the law to the limited record before it in finding that there were problems with the statute, then we have evidence to offer on most of the provisions. I would say probably the one exception is the second position requirement, where the only contest is whether or not you can read this particular statute as including an exception for an emergency. I don't think there is any additional evidence we have to offer on that provision, but on the others, I think there are additional justifications by way of facts that we can offer if the Court deems that necessary.
Sandra Day O'Connor: Do you take the position that abstention is appropriate as to any of the statutes to allow the state courts to interpret them?
Andrew S. Gordon: I am not sure that it would be feasible. Pennsylvania has no particular certification procedure that we could use to get a ruling on the interpretation of these statutes, so I am not sure that extension would be a feasible alternative, and frankly, I don't understand abstention to be the proper course when the statutes can clearly be interpreted in a constitutional manner, and that certainly is our argument.
William J. Brennan, Jr.: May I ask, Mr. Gordon, did I correctly understand that the reservation to make a further factual showing may be triggered by either party?
Andrew S. Gordon: At the District Court level?
William J. Brennan, Jr.: Yes.
Andrew S. Gordon: Absolutely. In fact, it was done in this case. There was a reservation.
William J. Brennan, Jr.: Well, I am speaking as to the five provisions before us. You have a stipulation as I understood it that expressly reserved the right to make a record in the District Court as to the five issue you have before us. Is that right?
Andrew S. Gordon: As to those and all of the issues that were involved, yes.
William J. Brennan, Jr.: Yes, and that reservation may be triggered without regard to what the Court may think by either party to the stipulation?
Andrew S. Gordon: That was certainly our understanding when we entered into it. The difference at this level is that based upon the Court of Appeals decision, the appellees take the position they have nothing additional to offer, so there has been a change since we entered into that stipulation. Now, just to finish up the jurisdictional point, it is our position that this interest that Congress recognized in the appeals statute is as surely damaged by an interim decision such as this one as it is by a final one, and it requires that cases such as this one be appealed. We request the Court to take jurisdiction over this appeal. The Court has recognized that a woman in appropriate circumstances is entitled to have an abortion free from state regulation. But at the same time the Court has held repeatedly that there is a permissible role for the states to play in ensuring the protection of maternal health and life. In passing the statute under review here, the Pennsylvania legislature attempted to strike the balance which this Court has mandated in its decisions. In some respects, based upon subsequent decisions of this Court, the legislature misstepped, and so we conceded the invalidity of several provisions of the Act while we were still in the Court of Appeals. But as to the provisions that we have brought to the Court this morning, the legislature clearly showed a proper regard for the rules which this Court has prescribed. For example, the Pennsylvania statute provides that a second physician should be present at abortions performed after viability. Now, it is common ground among the parties that the state may require that a second physician be present, and the parties also agree that there must be an exception to this requirement if an emergency prevents the attendance of a second physician. We differ only on whether this statute contains such an exception. In our view, a view shared by Chief Judge Sikes below, the statute clearly provides for such an exception. It is a complete defense to any charge brought under the section of which the second physician requirement is a part that the abortion was necessary to preserve maternal life or health. This exception is plain. It is far plainer than the one which was found by the Court to be acceptable in the Ashcroft case, and so this provision clearly should be upheld. Next, the informed consent requirement. The notion that patients are entitled to relevant information before submitting to a course of medical treatment is well accepted in the law. This doctrine of informed consent has been developed by the courts and the legislatures--
John Paul Stevens: Mr. Gordon, it would help me a little bit if in your argument you would identify the sections you are talking about as you go along. I caught up on the other one, but it--
Andrew S. Gordon: --Okay. The informed consent provision is Section 3205 of Pennsylvania statute. As I mentioned, the doctrine of informed consent has been developed by the courts and the legislatures to protect the patient, and the Court has recognized that this requirement may be extended to the abortion procedure, that women are entitled to know what will be done, the consequences of their choice, and the alternatives to abortion. In fact, the Court has indicated more recently in the Affrin case and by way of a summary affirmance regarding Pennsylvania's prior statute that a state permissibly may set forth general requirements, categories of information which must be given to a woman to ensure her informed consent, and there is a very real need for this type of statute. The Pennsylvania legislature specifically found and the evidence revealed that women, despite existing requirements for informed consent, are not always being provided with relevant information, and it has been reported that some clinics encourage women to undergo abortion by withholding information which might cause them to bear the child to term. The Pennsylvania statute does not put words in the mouth of the counselor or the physician, and it describes only in general terms the information which should be offered. It contains no parade of horribles, no statements of dubious validity, and it gives doctors and counselors the room they need to tailor the exchange to the needs of each individual patient. These requirements hardly erect an unconstitutional obstacle to abortion. Next, the reporting requirements which are found in Section 3214 of Pennsylvania's statute. These reports which are described in the statute are easily completed, and there has been no showing that the minimal effort required to complete these forms translates into a restriction on abortions. The reporting of data on abortions plainly serves important health interests by advancing the study of this medical procedure, and there is no serious contest over the relevance of this information, much of which already is reported to federal officials. Of course, if this information is to be of any value in research, it must be available to researchers who are studying this problem. And the statute adequately protects confidentiality by deleting the names of the patient and the doctor and providing severe penalties for unauthorized disclosure. Next, Pennsylvania in Section 3206 of the statute has provisions which require minors to obtain parental consent or judicial approval for abortions. Pennsylvania's statute clearly satisfies the general requirements which this Court has prescribed in this area. Now, appellees argued in the Court of Appeals that the statute is too general, and that it must be augmented by procedural rules. In the absence of such rules, the Court of Appeals accepted this argument and enjoined the statute. Since that time, rules have been issued, and yet appellees continue their attack on the statute, an attack which in some respects is similar to the one they presented below, and in other respects has shifted focus to take account of the new rules. But the essential question whether this statute is constitutional is still a live question. The specific inquiries have been altered somewhat by these new rules, but certainly the Court faces no insurmountable obstacle in addressing the appellee's facial complaints. All that is required in the way of procedure for a provision like this is that the minor be provided with an effective opportunity to obtain judicial approval, and these rules and the statute together provide as adequately as they can for quick, confidential proceedings. They do not, as the appellees suggest, permit parental involvement in every case. The state courts are given authority to appoint counsel, to appoint a guardian, but are left with their traditional discretion in these matters. This statute is plainly constitutional. It is an important provision, and it should be permitted to go into effect immediately. The final provision of Pennsylvania's statute which is before the Court involves the choice of abortion technique or method which must he used during abortions performed after viability. This statute provides limited protection to the viable fetus. It requires that after viability the doctor used the abortion technique which is least risky to the fetus unless that technique would pose a significantly greater risk to the life or the health of the woman. We do not argue that the state may require that a woman sacrifice her life or health to preserve the chances for survival of the fetus, and in our view this statute, by using the phrase "significantly greater risk", does no more than use a term which is familiar to physicians and researchers in this field, namely, a difference in relative risk that is statistically or scientifically meaningful. In all research, statistical experts, medical researchers recognize that even under the best of circumstances, under the best design test, there may be differences in relative risk which are not scientifically or medically meaningful, and this statute does no more than recognize this common understanding. For these reasons and those outlined at greater length in our brief, the conclusions of the Court of Appeals were plainly incorrect, and they should be reversed. But even if the Court decides that the Court of Appeals properly applied the law to the limited record before it, it was inappropriate for the Court finally to declare these provisions of state law unconstitutional before the state has been given a fair opportunity to present evidence in support of the statute. At the very least, the decision should be vacated and any order limited to a preliminary injunction. I would like to reserve the remainder of my time for rebuttal. Thank you.
Warren E. Burger: Very well. Ms. Kolbert?
Kathryn Kolbert: Mr. Chief Justice, and may it please the Court, on at least 12 occasions since 1973 this Court has been called upon to define the scope of a woman's fundamental right to choose abortion. Only two years ago this Court decided Akron and Ashcroft, and forcefully reaffirmed the landmark case of Roe versus Wade. If this Court reaches the merits, the parties agree that the sound constitutional principles in Akron and Roe and all of the cases following it are controlling. Before addressing the merits, however, I will first address the question of this Court's jurisdiction. Appellants concede that this case is interlocutory, that it arose as an appeal from the ruling on a preliminary injunction. Appellants also concede in their briefs that finality has always been the prerequisite to the mandatory appeal jurisdiction of this Court under Section 1254(2). With no support and precedent, the Commonwealth asked the Court to reject a rule that has been an integral part of appeal practice throughout this century. Although Congress has narrowed the scope of the appeal statutes several times in the last 60 years, it has never modified Section 1254(2) to disturb the finality requirement. If there is a need to change this finality rule, Congress can and will do so.
William H. Rehnquist: Well, does 1254(2) by itself speak in terms of finality?
Kathryn Kolbert: Your Honor, it does not, but in 1891, in a case called MacLeish versus Roth, this Court found that the absence of the word "finality" did not mean that finality was not required. This Court applied the finality rule to appeal statutes, and Congress knew that when passing this Section 240 which was the predecessor to Section 1254(2). Since that time, this Court has specifically applied finality to the Section 1254(2) and this Court has never retreated from those rulings. The importance of the finality rule is really very well demonstrated by this case. Given its piecemeal nature, it is very possible that this case could come before the Court at least twice and possibly three to four times if appellant's argument is to hold weight.
Warren E. Burger: Would it then have been enough if the Court of Appeals had said because of possible doubts about constitutionality it would simply enter the preliminary injunction and let events take their normal course?
Kathryn Kolbert: Your Honor, we believe that the Court of Appeals could have easily done what it did, which is reach facial constitutionality of the five provisions which it held unconstitutional, because as a matter of law the District Court had applied both the wrong standard and there was no possible way to construe the statutes in a constitutional manner, but yes, we were before the Court of Appeals asking for the vacation of denial of the preliminary injunction, and that would have been fine for us at that time.
Warren E. Burger: Undoubtedly when lawyers go in to get a TRO or even at the preliminary injunction stage they aren't ready always to litigate constitutionality on a complex matter, are they?
Kathryn Kolbert: No, and we were not, Your Honor. This case came up before the Akron and Ashcroft cases were decided. We believed that this Court was... at that time that the Court was about to rule very conclusively on these matters, and had asked for a preliminary injunction until this Court ruled on those cases and the Court of Appeals could then... at that point it was in the District Court, but then the Court of Appeals held the matter until this Court ruled and could apply the rulings of these courts on this question.
Byron R. White: Did you urge the Court of Appeals to rule finally on the constitutionality?
Kathryn Kolbert: Yes and no, Your Honor. The first time that we were before the Court of Appeals, we urged them to await this Court's rulings in Akron and Ashcroft. On the second time that we appeared before them, we did feel that the rulings in Akron and Ashcroft were conclusive as to the facial validity of several of the provisions.
Byron R. White: Well, if there is no appellate jurisdiction, that doesn't mean there wouldn't be jurisdiction by certiorari.
Kathryn Kolbert: That is correct, Your Honor. However, the policies that underlie the finality rule, that is, the policies of minimizing the docket of the Court and the policy against piecemeal review would also apply.
Byron R. White: We have never held that finality is required in certiorari jurisdiction.
Kathryn Kolbert: No, Your Honor, but there are some requirements of certiorari jurisdiction which are not met here. There is no conflict in the circuits in these matters. Although it is a significant issue, it will be before this Court on mandatory--
Byron R. White: That has been enough to get certiorari here in many, many cases.
Kathryn Kolbert: --That is correct, Your Honor. However, in this case, there is no doubt the case will return to the Court under its mandatory appeal jurisdiction when the matter has been finally resolved. We are not saying the Court should never hear these questions, only when--
Byron R. White: But at least we would have to determine to deny certiorari.
Kathryn Kolbert: --This Court would only have to determine--
Byron R. White: Well, they ask us to treat it as certiorari, if there is no appellate jurisdiction, so we would have to deny.
Kathryn Kolbert: --You would have to deny certiorari. That is correct. In the event--
John Paul Stevens: Ms. Kolbert, in the reply brief that your opponent filed, they point out the Walters case where it came up on a preliminary injunction. Do you have any comment on the applicability of that case?
Kathryn Kolbert: --Your Honor, this Court has long distinguished Section 1254(2) from Section 1252, which was the Walters case, and in fact 1252 does contain explicit language that allows both appeals from final orders and appeals from interlocutory orders. We believe that the appeal provisions have been treated differently, basically because in the Walters situation there was an appeal from a finding that a federal statute was unconstitutional. In the event that the Court reaches the merits, I would like to address the post-viability provisions that are before the Court, and then discuss the reporting and informed consent provisions. Appellees rely on our briefs for the parental consent and the second doctor requirements. Pennsylvania makes it a felony to perform a post-viability abortion unless it is necessary to protect a woman's life or health. This prohibition is not at issue here. What is at issue is additional standards, additional standard of care requirements and choice of abortion methods that are imposed on a very small class of women who have life or health-threatening problems that force the termination of pregnancy at this late stage. Post-viability abortions are extremely rare. They are performed on women who desperately want to have their children, but unfortunately due to some kind of underlying medical disease or pregnancy-related disease are forced to terminate the pregnancy. Under threat of criminal sanction, the Pennsylvania statute requires two things. First, it requires the physician to use the standard of care that he would use as if the fetus were to be born prematurely rather than being aborted, regardless of the consequences to the woman's health. Second, the physician must use the abortion technique most likely to result in a live born fetus unless that technique would cause a significantly greater medical risk to the woman. Now, as found by the Court of Appeals, the significantly greater language on its face directly intrudes upon the ability of a physician to give his primary allegiance to his patient, that is, the woman, and forces the physician to trade off the woman's best medical care in order to only marginally increase the chance of fetal survival. The Commonwealth concedes that such a trade-off is impermissible, but they ask this Court to delete the word "significantly" in order to cure the constitutional problems. To do that, to delete the word "significantly", this Court would be forced to rewrite the statute, and we do not believe that the Court can do that. But the statute, even if the word "significantly" were deleted, contains other problems. It requires doctors to compare risks of differing abortion methods that are impossible to compare. For example, a physician could use a prostaglandin method or a saline method on a woman who had diabetes or who had hypertension or combined, which is frequently the case. Each method carries approximately the same risk of mortality in a mathematical sense. The prostaglandin method, however, will increase the risk of stroke, and the saline method would increase the risk of uncontrolled diabetes. What the doctor is required to do here is to compare those two risks, to say is the risk of stroke a significantly greater medical risk than the risk of uncontrolled diabetes, and it is that comparison that is impossible to make, especially without consulting his patient as to which risk she is likely or wanting to accept. The question then becomes as a result of the statutory language, the vague language, and the impossibility of the judgment that the doctor is required to make what is going to happen. It is our belief that criminal sanctions are likely to produce one of two results. Either the physician will not provide medical care in these circumstances for fear of criminal liability or the doctor will use the technique which is the most fetal saving to the detriment of women's health, and it is that problem, putting the doctor making these judgments, that is problematic. Moreover, and I think this is an important point, the prostaglandin method or the saline, in choosing between the two methods, although the prostaglandin method is a little less fetal toxic than the saline method, that does not change the fact that both methods are extremely likely to cause the death of a fetus. So that to inject that criteria as a critical factor in deciding which method to use makes no medical sense and therefore puts the... and puts the physician into threat of criminal sanction. Like the statute found... also like the statute found invalid under the Colautti decision, the standard of care requirement which is independent of the choice of method requirement contains no life or health exception. It therefore compels the physician to treat a woman already suffering from serious health problems as if she were perfectly healthy. For example, steroids often given to women in the late stages of pregnancy when they go into very premature labor in order to increase fetal lung capacity and improve the chance or the likelihood of fetal survival, this kind of treatment is contraindicated to women who suffer severe diseases, and in fact would be contraindicated for many of the women who are needing this kind of treatment, who are needing the abortion in the first instance. The statute, however, has no exception for the life or health of the mother, and therefore requires the physician to provide medical care in a manner that is contrary to his best judgment. For these reasons, the standard of care and the choice of method requirements must be found unconstitutional. Turning to the reporting requirements, the reporting requirements contained in the Pennsylvania Act are unprecedented in their scope. They under pain of criminal sanction again require physicians to report over 40 different types of information, including the basis of the physician's own medical judgment about each individual woman who obtains an abortion. In addition to the separate reports that must be filed, these reports must be open for public inspection and copying, particularly in this area where public disclosure is likely to result in an increase of violence, intimidation, and harassment directed against providers of abortion services, and thereby chilling the exercise of constitutional rights both to the woman and the physician. The reporting requirements cannot withstand scrutiny. These reports go way beyond those found constitutional by this Court in Danforth, recordkeeping requirements that were characterized there as approaching impermissible limits. Given these burdens, the Commonwealth must show that there is a compelling state interest to justify the reporting requirements. This they haven't done and they cannot do. In fact, the Pennsylvania Department of Health's past practice has shown that patient care may suffer if abortion providers and women are subjected to increased levels of harassment. Indeed, when required to justify the reporting requirements and the public disclosure requirements of another section of this Act that was before the District Court on remand, the Commonwealth did not assert a public health interest at all. Rather, they argued that such disclosure was justified because it advanced first amendment rights of protestors. Even the Centers for Disease Control which in their briefs the Commonwealth acknowledges to be the leading public agency in the collection of health data is able to use aggregate reports that adequately protect the confidentiality of both the doctors and the women involved.
Lewis F. Powell, Jr.: May I ask a question? Have any malpractice suits made use of information in these public reports?
Kathryn Kolbert: Your Honor, the reports have not yet become public. As a result of the Court of Appeals injunction on these provisions and a subsequent injunction by the District Court as to other provisions, the reports have not become public, and earlier Pennsylvania law which I may say satisfied the CDC requirements for health data kept the reports totally confidential. So, to my knowledge, in Pennsylvania no malpractice claims have been used. There have, however, been a number of cases around the country where women's identities have been disclosed through reports, either in hospitals or through information that has been collected by opponents of abortion outside abortion clinics. For example, opponents have taken pictures of women entering clinics, copied down license plate numbers, and tried to track down individual women. As a result of that, there have been many suits that have been brought, not many, but several suits that have been brought to try to sue the opponents of abortion for those practices.
John Paul Stevens: You say these reports have not been made public. I assume they aren't even being... they probably aren't even being kept, are they, with the injunction in effect?
Kathryn Kolbert: The reports at issue here are not being kept. The reports under Section 3207 and 3214F which were the subject of the lower court proceedings after remand which involved corporate identification and the number of abortions performed per trimester are being kept but they are under order to be no public disclosure. The reporting requirements, as I said, therefore must be held invalid, and I would like to turn quickly to the informed consent requirements in the Act. The Court of Appeals decision finding the informed consent provisions of the Pennsylvania law unconstitutional must be affirmed. To do so, the Court need only apply the Akron decision. During the course of this litigation, after the Court decided the Akron decision, the Commonwealth conceded the unconstitutionality of both the 24-hour waiting period and the doctor only counseling requirements which are contained in Section 3205, the very provision that is before this Court. Because the section is not severable, like the ordinance in Akron, the entire informed consent provisions must fall. The specific informational requirements, however, are invalid in their own right for the same two equally decisive reasons that this Court condemned the Akron ordinance. First, the information is designed not to inform a woman but to persuade her to withhold her consent altogether. And second, the statute prohibits the physician from specifically tailoring the informed consent dialogue to the needs of the patient. Now, counsel for the appellants this morning said, well, the doctor is free to tailor the information. The statute does not say that anywhere within it, and that under the ruling in Akron is an equally decisive reason for striking down these provisions. This statute requires--
Lewis F. Powell, Jr.: May I ask before you go on, is the physician required to advise the woman that the father will support the child?
Kathryn Kolbert: --Yes, he is, Your Honor. It is either the physician or a counselor, a designated agent. That appears in the second set of requirements in the Act.
Lewis F. Powell, Jr.: In view of statistics as to the number of unwed mothers that have children, what does an unwed mother understand when she is told that the father of the child will support--
Kathryn Kolbert: Your Honor, it is our view that to tell the woman that the father is liable for support, given the national crisis in the collection of child support enforcement orders that Congress has recognized, and the difficulty in the collecting of support may in many cases be misleading, but in addition to inform that, to use... to provide that information to certain women, such as a rape victim who must be informed that her assailant is liable for the support of her child if she carries the pregnancy to term can be extremely cruel and traumatic in that situation, and may force her to relive that trauma. It is those very situations that that information may not be appropriate at different times. It is our view that the statute must allow the physician to tailor the information to the specific needs of this patient, and he can't do that, or the counselor can't do that given the mandates of the provision. The statute, as I said, is both cruel and inaccurate in some situations, and misleading, and also requires the provision of irrelevant information which can harm the health of the woman in certain instances. Let me give you another example. Informing a woman that there are unforeseeable risks to an abortion is an inaccurate statement given that abortion is the most studied medical procedure in American medicine today, and can only be intended by the legislature to arouse unwarranted fears of the woman. In addition, it is irrelevant to provide information such that medical assistance payments are available or information that the state strongly urges the woman to contact particular agencies and consult private social agencies that are run by opponents of abortion in situations where the woman needs the abortion in order to protect her life. In those circumstances not only is it irrelevant, but it could be harmful to the woman's health, and the facts in the record do show that. Accordingly, the informed consent provisions must be held in invalid. In conclusion, the Pennsylvania Act constitutionally infringes on the rights of women in consultation with their physicians to make critical decisions about abortion and to interfere with women's ability to control their own lives and health. It has been argued to this Court that the controversy surrounding the abortion issues requires a retreat from the principles both espoused by this Court in Rowe and reaffirmed most recently in Akron, yet it is precisely this controversy that compels a clear and unwaivering dedication to those sound and fundamental principles. This Court's steadfast adherence to Rowe and Akron is the only way to guarantee the protection of the cherished individual liberties at stake. Accordingly, FOE has asked this Court to dismiss this case for lack of jurisdiction, or in the alternative to affirm the ruling of the Court of Appeals.
Warren E. Burger: Do you have anything further, counsel?
Andrew S. Gordon: No, Your Honor, I have nothing further.
Warren E. Burger: Thank you, counsel. The case is submitted.


Warren E. Burger: We'll hear argument next in Mennonite Board of Missions versus Adams. Mr. Cohen, I think you may proceed whenever you are ready.
William J. Cohen: Mr. Chief Justice, may it please the Court. This is an appeal from the Indiana Court of Appeals. This case presents the question of whether the Indiana tax sale statutes which were in effect at the time this case arose violate due process in equal protection. It is the position of the Mennonite Board of Missions that the Indiana tax sale statutes violate due process because they only provide for constructive notice to a mortgagee of record. The statutes only provided for notice by posting at the courthouse and publication in a newspaper. This case arose as a quiet title action filed by the Appellee, Richard C. Adams. Mr. Adams had purchased the property at 1829 Stevens Avenue in Elkhart at a tax sale on August 8, 1977. Prior to the tax sale, Jean Moore owned the property in fee simple. The Mennonite Board of Missions had a mortgage on that property. The most significant fact in this case is that the Mennonite Board of Missions mortgage was recorded. It was a matter of public record. It was found in the Elkhart County recorder's office in Volume 388, page 693 of the Elkhart County records. The name and address of the Mennonite Board of Missions was thus a matter of public record. Under the terms of that mortgage Moore was required to pay the property taxes. She failed to pay those taxes.
Harry A. Blackmun: Does the record show why?
William J. Cohen: No, it does not, Justice Blackmun, as to why she did not pay the taxes. But she was, despite not paying the taxes, she was paying that mortgage each month to the Mennonite Board of Missions, which I think is also a very significant point. Under Indiana law if the taxes aren't paid on property for more than 15 months, the county auditor will compile a list of delinquent property tax... properties. And, in this case, they would then send notice under Indiana law to the legal title owner. Indiana law does not provide any mailed notice to an owner of the property. It is the position of the Mennonite Board of Missions that due process requires, at a minimum, mailed notice to a mortgagee of record. Had there been notice mailed to the Mennonite Board of Missions, in this case, I submit to this Court that the Mennonite Board of Missions would have paid the taxes. That's demonstrated by the fact that soon after they learned that the property had actually been sold for delinquent taxes, they immediately tendered to the trial court the statutory amount due to redeem their property.
William H. Rehnquist: Mr. Cohen, is there any provision of Indiana law that assures that by inspecting the record of the mortgage, the place at which it has been recorded, whichever, a person would be able to apprise themselves of the present address of the mortgagee as well as the name of the mortgagee?
William J. Cohen: The mortgage was filed in the county records in Goshen. The county auditor's office is in the same city. Their name and address was on the mortgage. More importantly, the Mennonite Board of Missions offices have been located in Elkhart County for over 50 years. The--
William H. Rehnquist: You're advocating a principle of request, sending mailed notice to any mortgagee of records, I take it. Now what I'm trying to find out is if there might not be situations in which there hasn't been a recorded mortgage... where the present address of the mortgagee was not available from the recording data.
William J. Cohen: --Justice Rehnquist, if the mortgage was not recorded, I do not believe that the county auditor would be forced to search titles and give notice to anybody. If the mortgage wasn't recorded, they couldn't have sent notice.
William H. Rehnquist: No, but-- --The question-- --What if the mortgage had been recorded, but the mortgage either didn't show the mortgagee's address or the mortgagee had moved.
William J. Cohen: That is a question that is not applicable to this case, but that would be something that would be a fact question that would possibly relieve the county auditor from sending notice... actual notice. But I do believe that if the mortgage was recorded in your given hypothetical, then it would be incumbent upon the county auditor to send notice to the last known address. In this case--
William H. Rehnquist: Would he be entitled to treat the mortgage... the address shown on the mortgage as the last known address even if it turned out, in fact, to be the third last known address?
William J. Cohen: --Yes, I believe he would unless the county auditor knew that the mortgagor... or rather the mortgagee had actually moved. If the facts could be shown that the county auditor knew that the mortgagee's address had changed and the county auditor knew that, I think it would be incumbent upon the county auditor to send notice under those circumstances.
Sandra Day O'Connor: Does the record show the contents of the notice that was published in this case?
William J. Cohen: No, it does not, Justice O'Connor. But we are not questioning the form of published notice given in this case itself. We're saying, however, that published--
Sandra Day O'Connor: What is in... what is contained in that published form of notice?
William J. Cohen: --Under Indiana law, the statutes provide that the name of the owner of the property will be listed, an address, if possible, but it does not require a specific street address. The legal title should be in the notice, and that's--
Sandra Day O'Connor: And the mortgagee's name or not?
William J. Cohen: --There is no present... there is no requirement under the Indiana law in effect at the time this case arose to send mailed notice at all to a mortgagee. That is--
Sandra Day O'Connor: Yes, but I'm just asking about the published notice, what it contained.
William J. Cohen: --Okay. It would contain the name of the legal title owner. It would not contain the name of the mortgagee. In this particular case, the published records of Elkhart County demonstrate that although the county auditor sent notice to Moore, she never picked up the certified mailing, that the property was then sold to Adams, but significantly, Moore continued to pay the property... to pay the money due and owing under the mortgage to the Mennonite Board of Missions. Indiana law provides for a two-year period of time to redeem the property following the sale at... by a county official. The Indiana statutes provide for giving notice to the legal title owner prior to the expiration of the redemption period. But there was absolutely no provision in Indiana law at the time this case arose to notify a mortgagee of record that the redemption period is about to expire. Under Indiana law, once the redemption period expires the tax deed purchaser, in this case Adams, obtains a fee simple absolute, free and clear of any prior lien or encumbrance. In this case we submit to this Court that the fact that the notice was only constructive and, by posting and publication initially to the Mennonite Board of Missions, in conjunction with the fact that there was absolutely no notice given at all to the Mennonite Board of Missions prior to the expiration of the redemption period, results in the Mennonite Board of Missions having their prior reported mortgage taken from them by state action with inadequate notice and without any compensation at all.
Harry A. Blackmun: Just a question of procedure. You stated the title in fee simple blossomed in the purchaser at the tax sale after the expiration period. Does he nevertheless have to go into court on a quiet title action?
William J. Cohen: He does, Justice Blackmun. But the statute provides that if notice were given to the legal title owner and that is then prima facie evidence that the tax sale was conducted in an improper manner. We do not represent Jean Moore. Our interests are not the same as hers. We could not represent her for that reason. We do not dispute the fact that there was notice sent to Moore under the statute, although she never picked up the notice, but--
Harry A. Blackmun: Anyway, he'd have to go in and get his title cleared up?
William J. Cohen: --Yes, but--
Harry A. Blackmun: And this is when your people got the notice.
William J. Cohen: --That was the first time they actually learned that the property had been sold for taxes. Just--
Harry A. Blackmun: What does an ordinary bank mortgagee do in Indiana?
William J. Cohen: --Well, Justice Blackmun, I'm not really sure what an ordinary bank would do in Indiana. I'm sure that many banks would vary their type of arrangements of looking after their particular loan. However, the Mennonite Board of Missions is not a professional money-lending institution. It's a charitable religious organization, a branch of the Mennonite Church. They were not in the business of making money. They loaned money--
Harry A. Blackmun: But they went into the business in this case?
William J. Cohen: --Much to their chagrin, at this time. However--
Warren E. Burger: Part of the response to Justice Blackmun's question, indeed, that in many cases banks and insurance companies that have numerous mortgages that they are holding arrange... make arrangements to see that all of the legal publications are sent to them and checked by someone. That's inherent in the notice by publication system, is it not?
William J. Cohen: --I think notice by posting and publication to a bank or to the Mennonite Board of Missions, each, under Indiana law would be unconstitutional. This Court--
Warren E. Burger: Even if the bank sees the notice?
William J. Cohen: --Not if the bank actually saw the notice, Your Honor, no. If the bank actually had actual notice, had seen the publication, we have a different case.
Warren E. Burger: Well, this is not inherence, and part of the system of lending on secured loans with mortgages or trusts, that there's an obligation on the part of the holder of the mortgage to keep in touch with the situation.
William J. Cohen: I think the Mennonite Board of Missions did exactly that in this case. They did the one most important thing they could do to protect their interests. They recorded it, and it was a matter of public record. It was notice to the Elkhart county auditor of what their interest was. It was notice to the whole world of what their interest was. There was no requirement under Indiana law that they do anything else. A professional--
Warren E. Burger: There are no requirements for a bank or an insurance company to keep a close check on possible foreclosures or additional liens against their security, but they do it as a matter of prudence.
William J. Cohen: --They have, perhaps, the resources and the sophistication to do that, but the Mennonite Board of Missions as a charitable organization was not accustomed to doing something like that nor did the law require that they do that. They did everything, I submit, Mr. Chief Justice, that the law required them to do under the circumstances. Mr. Cohen, was your client's interest in the property totally destroyed by the fact of the tax sale purchase alone, or is... to follow up on Justice Blackman's question, was there yet to be another proceeding whereby the tax sale purchaser confirmed his title? His... our interest was finally adjudicated in the quiet title action itself but the adjudication was a foregone conclusion, is what I meant to say to Mr. Justice Blackmun. That is, under Indiana law, once the tax deed purchaser obtained his tax deed from the county auditor after the expiration of the redemption period, under Indiana law he had the property free and clear.
William H. Rehnquist: So, it isn't simply a question of having to pay a penalty plus the amount the tax sale purchaser paid by the time your client had notice?
William J. Cohen: That's correct. By the time our client obtained actual notice of the tax sale itself it... the redemption period expired and they were never given an opportunity.
William H. Rehnquist: How long was the redemption period?
William J. Cohen: The redemption period is two years when the property is purchased by a private individual as in this case.
William H. Rehnquist: You mean, that for two years this property had been sold for taxes and your client had a mortgage on it, but had no knowledge of the fact that it had been sold for taxes?
William J. Cohen: That's correct, Justice Rehnquist. In the meantime, the mortgagor, Moore, continued to pay them each month on the mortgage.
Byron R. White: And was in possession?
William J. Cohen: And was in possession of the property. There was no attack on that property, so to speak, by the State of Indiana. The only situation that happened was posting and publication in a newspaper to the Mennonite Board of Missions.
William H. Rehnquist: I think most mortgagees in the agreement between the mortgagor and the mortgagee have an agreement whereby the mortgagor has to pay taxes, and the mortgagee his some overseeing by virtue of an escrow fund, doesn't it?
William J. Cohen: As far as what type of sophisticated mortgage transaction there may be in the case you mentioned as far as escrowing the money, that is not what happened in this case. The Mennonites are trusting people. When they had the mortgage with Moore, and Moore was required to pay the taxes, they believed she would do it. And she continued to pay the--
William H. Rehnquist: Well do you think that's really the basis for a constitutional argument? To say that you trusted someone to do it and, therefore, you're not bound by any constructive service or third party notice statutes at all?
William J. Cohen: --Under the facts of this case I do believe that's correct, Mr. Justice Rehnquist, because I think the focus of this Court really should be on what the state did, or really what the state failed to do. That is, the state failed to send adequate notice in this case.
John Paul Stevens: May I ask... there was no notice before either the tax sale or the expiration of the redemption period. In your view would notice be adequate if either one of those was given?
William J. Cohen: Had there been mailed notice to the Mennonite Board of Missions, yes. In fact, as this case was pending... as it worked its way up the appellate level in the State of Indiana, the Indiana legislature actually amended the tax sale statutes, and they now provide for the very type of notice that we are requesting here.
Harry A. Blackmun: Was that because of this litigation?
William J. Cohen: I submit that that's in all likelihood true, Justice Blackmun. I think it's a legislative recognition by the Indiana legislature that the system that was in effect was simply unconstitutional, that it was not difficult or burdensome for a county auditor to look at the public records and send notice.
Byron R. White: How prevalent are the statutes requiring notice to mortgagees?
William J. Cohen: Are you talking about nationwide, Justice White?
Byron R. White: Yes.
William J. Cohen: There is a Yale Law Review article cited in the brief and it is a 1975 article. In that brief it talks about 21 states that only provide for notice by posting and publication, and I might add the author urges those legislatures to amend those statutes.
Byron R. White: How about the remaining case of states?
William J. Cohen: Of those 21 there... since that law review article--
Byron R. White: I know, but how about the other states besides the 21?
William J. Cohen: --Most states do provide for notice by mail to owners of property.
Byron R. White: Well, your inference is that all the other states besides the 21, correct?
William J. Cohen: I can't... I cannot affirmatively tell you that. I do not know.
Byron R. White: Well, if not, the number would be more than 21.
William J. Cohen: It may well be the remaining 29 do, Justice White, but I do not know for sure. I cannot tell you at this point. But I think--
Harry A. Blackmun: Mr. Cohen, I suppose it's totally irrelevant but was Mrs. Moore a member of the church?
William J. Cohen: --No, she was not a member of the Mennonite Church, and this was an arms-length transaction between the parties. She was not the agent of the Mennonite Board of Missions nor was she the caretaker for the Mennonite Board of Missions in this particular case. It was an arms-length transaction and, in this case, there is inadequate notice to the Mennonite Board of Missions. As Mrs.--
Warren E. Burger: In this recording of the mortgage deed, is an address given for the Mennonite Board of Missions to which notice could be sent?
William J. Cohen: --Okay. In the mortgage that was recorded in Elkhart it lists the Mennonite Board of Missions. The specific street address is not listed, Justice... Mr. Chief Justice.
Warren E. Burger: In a small community, how would one go about finding out the... where to locate the Mennonite Board of Missions?
William J. Cohen: I submit, Mr. Chief Justice, in Elkhart County, the Mennonite Board of Missions are well-known.
Warren E. Burger: Well I'm... that's why I pointedly did not pick Elkhart. We don't decide constitutional questions just for Elkhart, Indiana. The generality is of some importance. Now, let us say in Fairfax County, Virginia, or anywhere out in the rural Virginia, how would you go about finding the Mennonite Board of Missions?
William J. Cohen: I'm not sure I quite understand your question.
Warren E. Burger: How could you find out if you wanted... suppose you wanted to join the church? Let's make it something to their interests. How would you go about finding them?
William J. Cohen: In Fairfax, Virginia? You might call Elkhart, Indiana and find out. [Laughter]
Warren E. Burger: Well I'm... some people might be that much interested in it to make such a call, but a great many might not be.
William J. Cohen: But, confining ourselves to the specific facts of this case, this Court has said that adequate notice under due process is notice reasonably calculated to inform interested persons of a pending action to provide them an opportunity to appear and assert their rights. In this particular case, under the Indiana statute in effect at the time this case arose, notice by posting and publication is simply inadequate, that it would be a very relative, easy matter for the Elkhart County auditor to have sent notice by mail. This Court has set forth the balancing test of what should be looked at as far as what due process is accorded in a given situation. In this case, the private interest at stake is the permanent loss of the Mennonite Board of Missions' mortgage without any adequate notice of the initial tax sale.
Thurgood Marshall: Doesn't the Mennonite Board obey the condition of the mortgage that you annually send us the receipt for your taxes?
William J. Cohen: They did not have anything like that.
Thurgood Marshall: I say, couldn't they have done that.
William J. Cohen: They could have, Justice Marshall, but again, I think what private individuals may do is not the focus of this case. What the Mennonites or a bank could have done is not the focus. The focus--
Thurgood Marshall: Why not?
William J. Cohen: --Because constitutionally I believe the focus should be on what the state did.
Warren E. Burger: This country has gone for about almost two hundred years now with notice by publication in many areas, affecting important rights. You speak of it as though this is something written in the Constitution or implied.
William J. Cohen: Mr. Chief Justice, I think that this is something that has been determined by this Court in Mullane... in the Mullane case and has been determined by--
Warren E. Burger: Yes, but not in this precise context.
William J. Cohen: --The--
Warren E. Burger: If it had been, you wouldn't have to be here.
William J. Cohen: --That is correct, Mr. Chief Justice. But the comparison with the facts of this case as to what happened in Mullane, there... I submit to this Court, this case falls squarely within Mullane, that this case cannot really be distinguished from Mullane. And on that basis, I submit that this Court would have to reverse the Indiana Court of Appeals. And this case, I submit, Mr. Chief Justice, also falls squarely within the case decided by this Court, the City... Walker versus City of Hutchinson cases. In that case this Court said that notice by publication only of a condemnation action where the owner of the property's name and address were a matter of public record is unconstitutional. And similarly this Court in City... Schroeder versus City of New York did the same thing. In that case it was another condemnation action and the owner's name and address was a matter of public record and this Court held the New York statute in that case unconstitutional for the same reason. That is, there was not adequate notice given where the name and address is known, that due process requires at a minimum notice by mail. This Court recently, just last term, in Green v. Lindsey reaffirmed those well-entrenched principles established in Mullane. The Green v. Lindsey case involved the Kentucky forceful entry and detainer act. In that case the procedure utilized by Kentucky is more likely intended to reach a tenant. The case involved an eviction of a tenant and in the Kentucky statutes it first provided for personal service by the sheriff. There was absolutely no requirement of personal service in this case. If the tenant was not home that case provided for posting on the door of the tenant's apartment. I submit to this Court that posting on the property or an intrusion on the property by the state is far more likely or reasonably calculated to inform a person of an eviction action than is the form of notice chosen by Indiana in this case. There have been other states that have considered virtually the same question as raised in this case. In the State of Arizona, the Arizona Supreme Court, back in 1954, determined that the sale of property by posting... rather publication... only violated due process as established by this Court in the Mullane case and in the Schroeder case. The State of Florida has ruled the same way. The State of Kansas and the State of Michigan, the State of Missouri and the State of New Jersey are all--
Harry A. Blackmun: Are all of those under the Federal Constitution or under state constitutions?
William J. Cohen: --The... all of those cases interpreted this Court's rulings in Mullane and in Schroeder and in Walker and all talked about the Federal Constitution and not state constitutional questions. Although the New Jersey court referred to its state constitution, it did indicate that their decision was based upon the Federal Constitution. If there are no further questions at this time, I'd like to reserve a few moments for possible rebuttal.
Warren E. Burger: Mr. Miller.
Robert W. Miller: Mr. Chief Justice, may it please the Court. I believe the beginning point is to determine whether or not this is a property right. And we concede that the Mennonite Board of Missions' interest in this real estate is a "property right". But I think the first place to begin is that the Court should understand and determine under Indiana law that a mortgagee is not an owner of any property. The Furnish case which is a case in Indiana where the supreme court reiterated the decision that it made in Mennonite Board versus Adams, I quote, "that a mortgagee is not an owner as well established by Indiana law, and further, a mortgagee has not title to the land mortgaged. " Now that is mentioned because, in a due process question as such as is before the Court, Court... case law indicates that there is a balancing test.
Harry A. Blackmun: So, if we were in a title state it wouldn't make a difference?
Robert W. Miller: The question wouldn't be any different? I don't know. I only know in Indiana there is no interest in real estate. Arizona, the last case, as I call it, is the only case, I submit, at least that I can find, that has answered the question as to whether a mortgagee requires notice by mail in the 50 jurisdictions, excluding Puerto Rico and others.
Harry A. Blackmun: And yet the loss is just as great, whether it's non-ownership or--
Robert W. Miller: Well, let me--
Harry A. Blackmun: --or estate or a title one.
Robert W. Miller: --Let me answer it this way. I'll get to that and some of the questions that were asked earlier. The question is, is a mortgage a significant property interest? One thing the Court should note for the balancing test that comes next is that in Indiana it's no... it's not one of the bundle of sticks that I learned about. It's a lien. Now within... balance the interests of--
Byron R. White: But you started out by saying it was a property right.
Robert W. Miller: --Well, my reading indicates that whether it is an interest in real estate or a "property right" as used in the Constitution wouldn't make any difference. This Court has many times said a property right is something that's not real property.
Byron R. White: But a property right isn't an interest in property?
Robert W. Miller: It is.
Byron R. White: And it's owned by the mortgagee? No, it's-- --It belongs to the mortgagee? It's his right? I'll put it that way, is it his right? Or its rights or--
Robert W. Miller: I don't think I understand the question. In Indiana a mortgagee has no interest in real property. It does not have legal interest, equitable interest, none of the bundle of sticks. What it has is a "property right" to have a lien on a piece of property that at a future date it may be able to sell to satisfy an obligation. If this Court would determine that it's not a significant interest in property, it would be a finding of... to affirm the Court of Appeals. In the... if the Court determines that it is a property right, the next question is, we have to balance the interests.
Sandra Day O'Connor: --Do you think this Court's previous holdings give an indication that we would regard a mortgage interest as so insignificant as to not come within the kinds of interests that we have protected--
Robert W. Miller: Oh, no.
Sandra Day O'Connor: --under a Mullane type doctrine?
Robert W. Miller: Anticipating the question, I believe it is. I concede it's a property right. My brief concedes that it's a property right. I wanted the Court to know that it's not an interest in real property because that comes to play in the balancing test as between the interests of the state and the interests of the mortgage company. I think if a person is an owner there's a greater interest in the balancing as between the state's interests and the owner of the real estate. a legal or equitable owner.
Warren E. Burger: I'm going to assume that Indiana has a lien law comparable to all other states so that a mechanic or a laborer who performs some services or furnishes materials could file a lien on the property.
Robert W. Miller: Yes.
Warren E. Burger: Now that's certainly a property right, isn't it?
Robert W. Miller: Yes. Now--
Warren E. Burger: But is it essentially an Indiana law the same as the mortgage lienor's... mortgagees lien rights? Each has a lien.
Robert W. Miller: --Each has a lien. Now, in some states, it may be that an interest in a mortgage is an equitable interest in the real estate. I want the Court to know that in Indiana it is not. The second question, and I think my opponent didn't make it clear... my research indicates that this Court has never determined that notice by publication is not constitutionally sufficient for an owner of real estate sold at a tax sale or a tax deed. There are extremely good reasons as to why notice by publication is or would be sufficient. There is only one state, and that is Arizona, that I can find that indicates that notice by mail is required to a mortgage holder or a lien holder, and that is, Laz. The law review article that was mentioned as 84 Yale Law Journal indicated at the time of the writing there were 21 states whose statutes say that notice by publication to the owner of the real estate is constitutionally sufficient. In my research, it indicates that 33 states indicate that notice to a mortgage holder is only done by publication. Of the other states, 33, just publication, to a mortgage holder. And I must say to the Court, I've given the benefit of the doubts, and some of them are very confusing. New York, for example, I understand reading it, has an alternate method. They can either go publication or they can go actual notice to the owner. Texas, I don't understand at all. I've put that in one of the other states. Now the question has never been briefed or argued before this Court, whether notice by publication to divest a land owner of his interests in real estate if he doesn't pay his taxes, has never been decided. The... and there are courts who have decided that it is permissible to give notice mere... by mere publication to divest a land owner of his interests in real estate by not paying his taxes, that's Coleman v. Sheeve. And that's the district court of... it's in the District of Columbia in the Court of Appeals in 1976. In the Township of Montville... that's an Arizona... excuse me, a New Jersey case, four to three determined that notice by publication is insufficient constitutionally under the the Mullane test. The dissent in that case cited a number of reasons why, as to owners, that notice by publication would be sufficient. He mentions that real estate taxes are a life blood of municipal government. And it... the case is an extremely good case, and the judge at the end of that indicates that realizing the due process notice requirement he would follow Mullane in all cases where there is a significant interest of property and he would carve out an exception for taxes. People, owners know they're due. It's a just system. There's notice. Everyone knows. But I'm not here to argue that today. We've skipped... I called that the missing link... we've skipped that. This Court has never heard, as far as I know, the argument... at least made a decision, I understand they may have heard the argument, but they've never made that... rendered that opinion.
John Paul Stevens: May I ask you, Mr. Miller, does the dissent in the New Jersey case, which I have not read, or maybe you have if an argument ready, what is the state interest in not giving notice? I suppose the state... you say it's a life blood... taxation is the life blood of the state, and they need the money. Wouldn't it be to their interest to give notice to as many people who might possibly--
Robert W. Miller: Well--
John Paul Stevens: --pay up?
Robert W. Miller: --The answer to that is yes and no. The practical answer is, I think, a state is interested in getting the money. The state is also interested in doing it as cheaply and as efficiently as possible. I can, unfortunately... you see, I believe that the state should give notice to owners by mail. It makes a lot of sense. I've read cases that frankly the other side has some arguments. The only good one I could find is in the dissent in the Montville... Montville, New Jersey case, where the judge just says it's a just concept that you own it, you know you're supposed to pay the taxes. The length of time in New Jersey was four years. And after four years, you don't pay your taxes, you're putting a burden on the other taxpayers. The state's not getting your money like it should. If you don't pay it, you ought to know it, with exceptions, unless you're incompetent or something else. And it is just fair. And why should... notice to owners? Well, that's the next question. Is it notice to all those that have an interest in the property? The Laz case in Arizona... their decision was based upon a statute that says you give notice to persons with an interest in the lot. And the supreme court in Arizona decided, well, an interest means not only the owner but the mortgage lien holders, judgement lien holders, lists pendents notice. In the Arizona dissent, they found in Arizona that that could cause a lot of problems. Does the Elkhart County recorder or any recorder drive to the county seat, drive to the courthouse and check the judgment dockets for judgment liens? A person who doesn't pay his mortgage, one would think, doesn't pay his bills. One would think he'd get sued. One would think would have judgments against him. One would think those are liens on the real estate, so the possible work for mortgage companies and I don't want to... I'm trying to get to the issue of the mortgage, the lien holder. To the owner it makes a lot of sense. It's easy. There are... and I'm not really here to argue... owners. There are some reasonable reasons why it shouldn't be necessary.
John Paul Stevens: Even in the case of mortgages, it occurs to me that, although of course 70 or 80 percent of the mortgages are held by big institutions, when interest rates get real high as they have been in the last few years, there are a lot of purchase money mortgages held by individuals on second mortgage interests and the like and I suppose that's the area in which there's the possibility of this sort of thing happening.
Robert W. Miller: Yes, there is. And I think it's happening, and I think there is that possibility. And I guess all I can say is that you better protect yourself and you better draw up the instrument or you have the attorney or yourself draw it up to protect yourself. But to have trust in the person that is going to do it, to ignore the payment of taxes for five years, I don't know if that's constitutionally protected or should be. I think the issue is... is that was this notice reasonably calculated, Mullane test, if we get that far. But... and I think we have to... was it reasonably the notice, reasonably calculated under all the circumstances to apprise a lien holder of what action was going to be taken in giving that lien holder an opportunity to object, and in this case opportunity to pay the taxes if it chose. Now, I submit that the Court of Appeals in this case said it quite well. And that is, the Court of Appeals in this case, the Adams case, had its reasons in terms of was it reasonably calculated. It says it is understandable while actual... why actual notice has not been extended to mortgagees. Most mortgagees are in the business of lending money and as professional money lenders, prudence requires them to be aware of the conditions involving their collateral. They can be expected to protect their interests by keeping records of the mortgagor's discharge of his obligations. In a footnote it goes on to say the Mennonite Board of Missions may not be a professional money lender but it freely chose to enter an area of sophisticated financial investment and thereby necessarily chose to incur the risk inherent therein. And I agree with that. I also point out in Texaco Inc. v. Short, an Indiana case that was decided last year, the dissent in that case, by Justice Brenner at page 801, in a lawyers' edition. Court... "The Court", that is the majority, "would appear to treat property owners as businessmen of whom we do indeed expect the greatest attentiveness to regulatory obligations in the conduct of their business affairs. " The Board... and I take umbrage at some of the things that, a, do not appear in the record, but Elkhart County's population of 150 thousand people... I honestly didn't know where to get a hold of the Mennonite Board of Missions. I think that's all irrelevant. It is not in the record. They chose to do it. They held the mortgage. It wasn't a free mortgage. It was seven percent. As I recall it was in '73. I think that was a reasonably marketable mortgage in '73. It may have been under the market slightly. It was an arm-length... arms-length transaction. She was a woman, I think. I've never met the individual. And she was paying her mortgage. Why she stopped, I don't know. But we publish... or the state published notice to a... to the people that held the mortgages. And as it was stated in Mathews v. Eldridge, the Social Security disability case, decided in this Court in 1971, talking about due process and notice, and it says all that is necessary is that the procedures be tailored in light of the decision to be made to the capacities and circumstances of those who are to be heard. Now the question is would a letter have done it better. In this case, no, which I'll bring out in a moment. But notice by publication, I think the Chief Justice indicated that most institutions have employees, people. I think that's the Nelson v. the City of New York, decided in 1956, in this case. And that's where the notice of a tax sale to the owner went to the bookkeeper.
Byron R. White: Wouldn't you think that most of the professional moneylenders, big institutions whom you say can take care... whom you say can take care of themselves, would take care of themselves in a way that there would never be an occasion to have a tax sale or send out any notice. They would follow... they would know when there... at least if they use some mechanisms, they would know... they would make sure that the taxes are paid. So the classic cases in which, the universe of cases in which you're going to have to have a foreclosure or send out a notice are going to be reduced to a lot of people mostly who don't take care of themselves, and don't know enough to take care of themselves.
Robert W. Miller: Well, I... can agree with that. In part I do. I do.
Byron R. White: I would suppose you have to--
Robert W. Miller: Well, in part I do, because it's obviously true in part, but two answers: One, I think the question before the Court is, what's the constitutionally necessary minimum; and, two, in Mullane--
Byron R. White: --In argument I would think you'd be making the same argument if they never published anything.
Robert W. Miller: --No, I think--
Byron R. White: No notice, no publication.
Robert W. Miller: --No--
Byron R. White: Mortgagees can take care of themselves.
Robert W. Miller: --No... no, because in--
Byron R. White: Well, you know that nonprofessionals aren't going to go look... go get any notice from publication.
Robert W. Miller: --No, and I don't rest my argument on the fact that they would take care of themselves. I'm saying to the Court that there was in fact notice. There was notice by publication. The question you have to ask yourself--
Byron R. White: Not actual notice, just notice.
Robert W. Miller: --It was not actual. The question is--
Warren E. Burger: Wasn't that published notice for the purpose of attracting a lot people to come in and bid?
Robert W. Miller: --It's one of the reasons.
Warren E. Burger: One? Isn't that the primary reason in terms of getting... trying to liquidate the indebtedness, whether it's a tax sale or a mortgage sale. Whoever has the money due is trying to get it back so there's a real purpose... the publication is not a matter of form. It's a matter of substance, and there are people who are scanning the published notices every day in the week and every city in this county and deciding whether they want to go in and bid.
Robert W. Miller: Right.
Warren E. Burger: But it serves a real purpose.
Robert W. Miller: It does, and I--
Byron R. White: It doesn't serve the purpose of giving notice to the mortgagees.
Robert W. Miller: --Well it's not in the record, but that is not so... at least... in my experiences, is the banks always check and have people... or at savings and loans... they always check and have people to check those. Because at times computers make mistakes, people make mistakes.
Byron R. White: They want to know when the sale is so they can bid.
Robert W. Miller: I submit that notice by publication is notice to the people in that county to protect themselves.
Sandra Day O'Connor: Okay. Do you concede that notice by mail would be more effective for the mortgagees?
Robert W. Miller: In a... where the post office name and address of the mortgagee is in the system yes, it would be. Now it depends, Justice, on each system. The Elkhart County auditor... there's the Elkhart County recorder. Those are not necessarily the same office, but... which I think is irrelevant. But one of the problems, also, is how does the Court define mortgagee? Is that lien holder, which can cover a number of problem areas with counties and states notifying all lien holders. But the question that the Court, I believe one of them, has to decide is wasn't notice by publication reasonably calculated under the circumstances... the circumstances, I allege, as a mortgage company who chose to enter into a field of giving a mortgage and making a profit if not on the books but still a seven percent interest on the money as a... balancing it with the interests of the state. The fact that they decided to enter into this field and even... in this case, even if the Court would determine that it's not reasonably calculated without hearing the arguments as to maybe why notice to publication to owners is all that is necessary. I would point out... this is the, I believe, the most important argument I can make here under Mullane. The brief of my Appellant, at page 27, has a footnote that indicates as follows: Indiana code 32-821 "requires the name and addresses of the mortgagee be on their recorded mortgage. " That is not quite right. That statute validates mortgages if they do not have the "full name and post office address of the mortgagee as required by other older Indiana law. " "And I quote, full name and post office address. " The Joint Appendix in this case at page 45 has the address of the Mennonite Board of Missions as follows, Mennonite Board of Missions, a Corporation of Wayne County in the State of Ohio. That is not a post office address. That is not a mailing address. And I submit--
William H. Rehnquist: Where is that in the Joint Appendix?
Robert W. Miller: --Page 45, where the mortgage of the Mennonite Board of Missions is set out.
William H. Rehnquist: I find that it appears to be some sort of a brief on page 45... is it this tan--
Robert W. Miller: Yes, the tan Joint Appendix.
Warren E. Burger: --Where is it now?
Robert W. Miller: Page 45.
William H. Rehnquist: I think your... this seems to be a section of arguments. Could you check your own page 45 and--
Robert W. Miller: I have mortgage and--
William H. Rehnquist: --I think... at least some of us up here don't seem to have the same numbering or perhaps the same document.
Robert W. Miller: --I can only tell you that I got my Joint Appendix from the other counsel. His page now says 67--
Speaker: It's on page 67.
Robert W. Miller: --His page is 67. I don't know why mine is 45. He gave me the Joint Appendix. Page 67, the Court will find... I'll read from the actual mortgage, "The address, Mennonite Board of Missions a Corporation, of Wayne County, in the State of Ohio. " There is no other address in this record or in that auditor's office or in that recorder's office of any other address other than Mennonite Board of Missions of Wayne County, State of Ohio.
William H. Rehnquist: So if the tax collector had gone to this particular mortgage but gone no further, they really... he really would have had no mailing address by which to mail?
Robert W. Miller: Correct. Unless he either was a Mennonite and happened to belong to that church and knew what the Mennonite Board of Missions is. That is something, it is not the Mennonite Church. And if he knew that that organization that may be in Elkhart County is not... is the same organization that is in Ohio.
Byron R. White: Is this an alternate ground for affirming?
Robert W. Miller: This would be an alternate ground to affirm under Mullane. Mullane is... all it says is clear as a bell to the beneficiaries, if post office names and addresses weren't there, they don't have to do it. Mullane says, "where the names and post office addresses of those affected by the proceedings are at hand the reason disappears. " In the Mullane case, the trustee had on its books the names and addresses of the income beneficiaries. I agree that if these are all the same people, and if we wanted to go outside the normal course of the auditor and/or the recorder, that we could have gotten a letter to them. A letter to Wayne County, Ohio was not going to get to the Mennonite Board of Missions.
Harry A. Blackmun: Well now, why do you say that? Suppose you had addressed an envelope--
Robert W. Miller: Because I did, but that's--
Harry A. Blackmun: --To the Mennonite Board of Missions, County Seat, Wayne County, Indiana... whatever it is... why do you think it might not well find its way?
Robert W. Miller: --Well for two reasons. One, it's my understanding of the postal regulations that mail will only be addressed... delivered to a postal address, either a box or an address, and secondly, from personal knowledge that I don't think has any business in this case. The question of names and post office address is not present in this case.
Byron R. White: Well we get mail directed to Judge Zilch, care of the Department of Justice, Washington, D.C., but it comes here.
Robert W. Miller: Presumably that's the wrong place. I notice the address of this Court is simply The Supreme Court, Washington, D.C., with the zip.
Thurgood Marshall: We also get mail directly addressed that gets here a month later.
Robert W. Miller: Well, back to the point. My--
John Paul Stevens: Actually, I guess the Court of Appeals of the Indiana Court didn't really rely on the difficulty in finding the mortgagee, did it?
Robert W. Miller: --No, it determined that notice by publication--
John Paul Stevens: It wasn't necessary.
Robert W. Miller: --It wasn't... notice by publication is necessary. Notice by mail is not. Their ground was it was reasonably calculated because they entered into a sophisticated area of financing. They're on notice. The notice is supposed to be... depending on if it was a person on welfare, that's one thing. This was supposed to be a businessman. They chose to enter into the field. Those are all the reasons.
John Paul Stevens: May I ask you if the new Indiana statute requires that the mortgagee designate his address when he records his mortgage?
Robert W. Miller: No, it does not.
John Paul Stevens: But it nevertheless requires mailed notice.
Robert W. Miller: No, it does not, either.
John Paul Stevens: Oh, I--
Robert W. Miller: I take umbrage with my opponent. I don't know why they changed it but what they did is add a provision and that provision says that if the mortgagee will pay up to ten dollars, two to the auditor, and provide his name and post office address, that when the auditor sends out those little notices that your taxes... your property is about to be sold for taxes, he'll send one to the lien holder also. But the lien holder has the affirmative duty under the statute to provide that name and address to the auditor.
Byron R. White: --And ten dollars?
Robert W. Miller: Up to. That's the statute.
Byron R. White: Oh, so--
Robert W. Miller: It's a very cheap state.
Byron R. White: --But he has to... does he have to pay the--
Robert W. Miller: Oh, yes, the mortgagee has to pay--
Byron R. White: --Well, when he gets the notice or before?
Robert W. Miller: --No.
Byron R. White: Whenever he takes mortgage he writes a check to the auditor and says--
Robert W. Miller: No.
Byron R. White: --In the event taxes aren't paid please notify me.
Robert W. Miller: No. When... see, the mortgagee... and again, the cases that... or the footnote that I referred to in the brief mentions Indiana case law. The procedure in Indiana is this. A mortgagee takes his mortgage to the recorder's office and records it for public record. The statute now says that if he wants to receive notices that the taxes are delinquent and that there's about to be a sale, he must go to the auditor and pay a fee.
Byron R. White: Right then?
Robert W. Miller: Right then. And notify the auditor of his name and address and pay whatever... the statute says the auditor can set a fee, the county auditor can set a fee, but not more than ten dollars.
Byron R. White: I see.
Robert W. Miller: And he provides the name and address, his name and address, and then, if the taxes are not paid for 15 months and the notice goes out that there's going to be a sale, the auditor is required to send not only a certified letter to the owner--
Byron R. White: Every county may be different on the fee?
Robert W. Miller: --The statute in my memory says... the state statute says the county shall determine the fee to be charged but not more than--
Byron R. White: Yes. Do you know what the fee is in this county?
Robert W. Miller: --In Elkhart?
Byron R. White: Yes.
Robert W. Miller: I have no idea.
William H. Rehnquist: Have they got around to determining it if it's a new statute?
Robert W. Miller: I'm sorry.
William H. Rehnquist: Have they got around to determining it in Elkhart County, if it's... or you just don't know.
Robert W. Miller: I have no idea. I hold no mortgages. I've never had the opportunity to use it. That statute is used in my research in some of the... some of the other states. The Appellant in this case has indicated in his brief and, again in that same footnote, that the law of the State of Indiana is that a deed and mortgage is taken to the auditor. The law in the State in Indiana is, is that a deed, before it be recorded, is taken to the auditor and placed on there are the words to be entered for taxation, or words to that effect. The auditor writes down who owns the property and their address and... so that the county knows, that are going to be taxed. As to mortgages, the statute says and only says, that before the auditor makes that endorsement on the deed, he may require a tax identification number, and I emphasize may, on other instruments including mortgages that divest a person of a mortgage. That sounds a little complicated, but Indiana has a law that if you have a mortgage on a piece of property, you pay less property taxes because you have that mortgage. There is no requirement to take the mortgage to the auditor's office. In other words, there's no way for an auditor under the Indiana scheme of things to have a name and post office address. But in this case there was no post office address. There was notice that was reasonably calculated in the general scheme of things and I reasonably submit under Mullane, even if the Court felt that all these mortgage holders should get notice that Mullane and all of the cases afterwards... in the case of Laz versus Arizona, they made a point that Laz versus Arizona requires a letter to a mortgage holder that the taxes, or the property's going to be sold, or it's going to be deeded. But even in Laz, it says that's only to the mortgage or the lien holders whose names and post office addresses are in the public record without inquiry. They're open and available, as was said in Mullane. This Court held in Mullane that the--
Warren E. Burger: Your time is up, counselor.
Robert W. Miller: --Thank you.
Warren E. Burger: Do you have anything further, Mr. Cohen?
William J. Cohen: Yes, Mr. Chief Justice.
Lewis F. Powell, Jr.: Mr. Cohen, does the record show who prepared this mortgage?
William J. Cohen: Yes, it does, Justice Powell. The mortgage was actually prepared by Edna Carpenter who worked for the Mennonite Board of Missions. It was not prepared by an attorney. However, with respect to Mr. Miller's point as to no post office address actually being on the mortgage itself. I submit that there was no difficulty for Mr. Adams in this case to send the Elkhart County sheriff directly to the Mennonite Board of Missions offices, which were located for over 50 years in Elkhart.
William H. Rehnquist: Well, but the county seat is in Goshen, isn't it?
William J. Cohen: Yes, it is. Yes, it is, Justice Rehnquist.
William H. Rehnquist: How is it from... and is the sheriff in Goshen?
William J. Cohen: The sheriff has an office in Goshen and in Elkhart. And the county... the county recorder's... well, some of the records are in Elkhart and in Goshen, both.
William H. Rehnquist: What's the... what's the population of Goshen and of Elkhart, roughly?
William J. Cohen: Elkhart's about 42 thousand, Goshen is about 15, 20 thousand.
Lewis F. Powell, Jr.: Thank you. Mr. Cohen, the mortgage also provided that Mrs. Moore would pay the insurance on the house.
William J. Cohen: Yes.
Lewis F. Powell, Jr.: Do you know whether that was continued after she defaulted on taxes?
William J. Cohen: It was my understanding that she continued to pay everything and unbeknownst to the Mennonite Board of Missions, she did not pay the taxes right after the period of time to redeem the property expired. She was asked to leave the property and she went to the Mennonite Board of Missions and informed them that she was in trouble. The first time that they learned there was problem was from her at that time. With respect to a question that was asked by Mr. Stevens, Justice Stevens. In this case, the only interest of the state is for the collection and payment of taxes and that if mailed notice was sent to mortgagees that would actually further the states interest of collecting taxes. In the brief, I cite an Indiana case where the mortgagor and there were... the mortgagor and the mortgagee, one or the other... their property was listed for sale for delinquent taxes and the county auditor mailed notice to... after the tax sale, mailed notice to the mortgagee, informed them that the property had been sold for delinquent taxes. The mortgagee promptly paid the tax and, in investigating what happened as far as why the taxes hadn't been paid, learned that the property taxes... the payment had not gone onto a computer list and had it gone onto the computer list, it would have never made the tax sales in the first place. So the mailing of notice would actually assist the state in notifying mortgagees who are likely to pay the taxes and in all likelihood would pay the taxes. And it would further the state's interest of collecting the taxes as soon as possible and in a fast and expeditious manner.
Sandra Day O'Connor: Well it is hard to understand how that would have helped the board in this case with no address, and I don't think our cases have gone so far as to require county sheriffs to go out personally and look for locations.
William J. Cohen: Mullane says, Justice O'Connor, if the name is a matter of public knowledge or if easily ascertainable.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday the 4th of April at 10:00.