Warren E. Burger: We will hear arguments in next in 75-554, Beal Against Doe and Others. Mt. Watkins you may proceed whenever you are ready.
Norman J. Watkins: Mr. Chief Justice and May it please the Court. In 1965, Congress enacted Title IX of the Social Security Act, which is commonly better referred to as Medicaid. The general purpose of that statute was to provide necessary medical services for the indigent, near indigent as maybe determined by the States. It was an optional program on the States. The primary or premium medical judgment of the physician was of course the primary fact to determine which services should be reimbursed and which should not. It was left up to the States whether or not the recipients or the providers would be reimbursed for their services. There are general requirements in the statute that require equality of treatment for the various groups that are covered within a program and there are general descriptions of the types of services that are required. There are five basic categories of services which cover such things as inpatient services, outpatient services, skilled nursing services, physician services and the like. Pennsylvania opted to participate in this program and accordingly drew up a plan, a Medicaid plan, which was submitted to the Department of Health, Education and Welfare and approved by that department. The plan again, consistent with Title XIX places primary reliance on the physician?s judgment as to which services in the covered categories would be necessary and required, as required also by the Federal Statute. Pennsylvania has a Utilization Review Program which reviews the use of services to make sure that unnecessary services are not being dispensed and reimbursed under the program. As part of the program, Pennsylvania covers pregnancy related medical services, including abortion. However, each such service must be medically necessary at the time of its utilization. This is the controversy. This is where the controversy arises in Pennsylvania and, in this case. Pennsylvania?s abortion policy basically requires that at the time abortion service is rendered, it would be medically necessary in the judgment of the physician, that is that the condition for which the abortion is prescribed threatens the health or the life of the mother. There is also a two-doctor concurrence and the requirement that the abortion be performed in J.C.A.H. accredited hospital. Those two requirements were never litigated in earnest in this case and it is quite reasonable with respect to the two-doctor concurrence because that I am told in practice is rather a rubber stamp. In any event?
Harry A. Blackmun: What do you mean, ?It was never litigated in earnest?? Was it litigated at all?
Norman J. Watkins: It was raised. It was challenged in the original complaint Mr. Justice Blackmun. However, the decision of the District Court and the decisions of the Court of Appeals did not discuss these issues and their lack of compliance with respect to Title XIX or the Constitution. The plaintiffs in this case were all pregnant women with pregnancies ranging, I believe, from seven to 17 weeks term. By their own admission, at least some of the plaintiffs in affidavits filed and contained in the joint appendix, some of the women sought their abortion for reasons totally unrelated to health. In fact, the stipulation of counsel filed in this case so states. Accordingly, these women were not able to procure the required certification of medical necessity from the attending physician or two other physicians, and therefore, they were unable to receive the abortion because they were indigent, they were unable to provide the funds to procure the abortion on their own. Thus, this lawsuit was filed challenging these Medicaid Regulations on both statutory basis and on the constitutional basis. This record held that Pennsylvania?s medical necessity requirements applied to abortion does not violate Title XIX, but rather the Court went on quite properly and decided that, under The Constitution, in its view, with one judge dissenting, the regulation violated the Fourteenth Amendment Equal Protection Clause. The Court of Appeals on bunk affectively reversed that holding of the Lower Court and found that Pennsylvania?s Medicaid Regulations as applied to abortion violate Title XIX of the Social Security Act.
Speaker: What did it do about the Constitution?
Norman J. Watkins: It did not go to the constitutional question under this Court?s teaching in Higgins vs. Levine. There are, in my view, at least seven compelling reasons why this holding of the Court of Appeals on bunk must be reversed. First, as the Court was well aware, in 1965, when Title XIX was inactive. Non-therapeutic and I might say at outset that I am using the terms, Non-therapeutic medically unnecessary interchangeably, I do not see any distinction between the two nor the Court of Appeals, nor?
Harry A. Blackmun: Mr. Watkins, are you tying that definition, however, into what was said here in Doe Against Bolton?
Norman J. Watkins: I am Mr. Justice Blackmun.
Harry A. Blackmun: So that you are conceding that medical necessity under the Pennsylvania statute means what was spelled out here in Doe against Bolton?
Norman J. Watkins: Absolutely! And, there is nothing in the record in this case to indicate to the contrary. In fact?
Harry A. Blackmun: Well, that is a substantial concession in your part, is it not?
Norman J. Watkins: Well, it is not a concession at all Mr. Justice Blackmun. The 1970 policy of the Pennsylvanian Medical Society which formed the basis for our regulations, in fact points out that both psychological or physical health reasons certainly should be taken into account by the physician in determining the necessity of an abortion and as well, I might say the physicians in Pennsylvania, like every other state are certainly bound by the pronouncements of this Court and the teachings of this Court. Pennsylvania certainly realizes that it could not restrict the physician?s judgment to any narrower scope than this Court pronounced.
Speaker: I gather from some of your prior remarks, you were equating at almost the abortion on the bound, but I am accepting your concession.
Norman J. Watkins: That is correct.
Speaker: I do not want no misunderstanding about it.
Norman J. Watkins: Let me make perfectly clear, my concession. That is that a physician, in examining a patient, may take psychological, physical, emotional, familial considerations into mind. And, in the light of those considerations, might determine if those factors affect the health of the mother to such an extent as he would deem an abortion necessary. I think, the key in the Bolton language and the key in the voice language is the fact that the physician, using all of these factors, and there are probably more that he should use, must determine if the woman?s health, that is her physical or psychological health, is jeopardized by the condition of pregnancy. That is not to say, obviously, as I believe the plan is to assert that the fact that the family is going to increase makes an abortion medically necessary. If that were the case and if that is what this Court meant then I would say that, what we are really saying is that the only medically unnecessary abortion is when the woman is not pregnant and I do not believe that this Court was reaching that resolve in Voich or Bolton. Certainly?
Speaker: Possibly, this subjective, psychological or emotional problem caused by the expectant mother by her concern about the increase in the family might be such a health problem, such as would lead the physician to certify that an abortion was medically necessary, you would concede that?
Norman J. Watkins: Absolutely. Again, I do not concede these concessions. This is the clear policy of Pennsylvania.
Speaker: Right.
Norman J. Watkins: In fact, until the filing of the respondent?s brief in this case, the use of the term health in Pennsylvania has never even been raised. The fact of the matter is in Pennsylvania it is the physician that determines whether or not an abortion is medically necessary.
Speaker: Apart from the certification by the two other physicians, what physician is this? Is this?
Norman J. Watkins: This would be the physician of the woman?s choice.
Speaker: The woman?s choice?
Norman J. Watkins: That is correct.
Speaker: Could not this lead to physician shopping?
Norman J. Watkins: Very possibly. That is something that we cannot and do not pretend to control. If some physicians have a very, very broad view of medical necessity, that is their judgment. They are physicians. They are licensed to practice medicine. As long as it is legal and as long as their professional organization says that they are practicing medicine within the proper realm, it is not for the common welfare of Pennsylvania. It is not for welfare bureaucrats to tell a physician which abortion is medically necessary and which abortion is not and that is not the portent of this plan.
Speaker: In other words, until the Medical Association or some other such authority might step-in on that kind of an issue, the state accepts with finality the medical opinion?
Norman J. Watkins: This is a trickier question. Obviously as I have said at the outset there is a Utilization Review Program. Now, if a certification of medical necessity came in and from the face of it, and I am telling you now what the department tells me, although again, the record does not contain this because it was never challenged, if on the face of it, it is apparent say that physician never treated this individual then there would be a review, but if there is nothing irregular on the face of it, that is correct. There is no different treatment of an abortion reimbursement request than any other reimbursement request.
Speaker: I take it thought that in the State?s view there would be a substantial number of cases in which a position that would not certify medical necessity, but nevertheless there would be an abortion and the woman would have a constitutional right to obtain that under this Court?s decision?
Norman J. Watkins: That is if this Court analyzes the constitutional problem on the basis of reasonableness which, I think, is the appropriate standard then I would say that these requirements also meet constitutional muster because they are entirely reasonable as a Medical Services Program, a medical services program?
Speaker: We would not want to reargue the?
Norman J. Watkins: The constitutional question?
Speaker: The constitutional issue, but I understood you to mean that there would be cases that a woman would have a constitutional right to get an abortion from somebody, but she could not get a certification of medical necessity?
Norman J. Watkins: There may be those cases. I cannot?
Speaker: Unless there is, this case ? this case?
Norman J. Watkins: No, no that is?
Speaker: you are talking about that segment referred to by my brother White, a woman who would have a constitutional right to have an abortion performed, but who no reasonable qualified physician could certify that it was necessary for her health?
Norman J. Watkins: That is correct.
Speaker: Unless there is such a segment. This case?
Norman J. Watkins: That is absolutely correct. In fact, that is the situation these plaintiffs were in. They were unable to obtain that certification of medical necessity.
Speaker: General Watkins, before you leave that point, the Court of Appeals listed five things, five conditions that had to be met, one of five conditions before an abortion would be performed. It seems to me they described the right to an abortion in Pennsylvania is narrower than you describe it. Are you describing a non-therapeutic abortion in the same terms that the Court of Appeals found?
Norman J. Watkins: I believe so. In other words, when I say it is the bottom line of those regulations other than the Physical Deformity Provision. The bottom line is whether or not the pregnancy creates a condition that jeopardizes, threatens the health or life of the mother.
Speaker: I see.
Norman J. Watkins: And, my point is that when the physician examines the mother, he of course applies these course teachings in Voich and Bolton to determine whether or not there is a health threatening condition. Anything to the contrary would clearly violate the holdings in these cases.
Speaker: Does that made clear to the physicians in Pennsylvania?
Norman J. Watkins: Well, I assume that it is by virtue of the fact that the Pennsylvania Medical Society, which I assume represents a good segment of them, issued the policy statement from which we adopted these regulations and in fact, contained in the brief, in the section, statutes involved, there is a hypothetical that the medical society used to point out that psychological and emotional as well as physical considerations may well be taken into account. I might add that that is?
Speaker: That is in the record?
Norman J. Watkins: That is not in the record, Your Honor. That is in the statutes involved in section of my brief. I think it was in fact a published medical society physician. Returning to the other reasons why I feel that the Court of Appeals? opinion must be reversed and I will try to move more rapidly. As I pointed out a non-therapeutic abortion in 31 States, at least in 1965 was in fact illegal. It is difficult for me to imagine that Congress would have mandated and we got to keep that in mind that the plaintiffs, the respondents in this case are arguing that not only this Title XIX allows reimbursement for non-therapeutic abortions, but in fact it requires it. It is difficult for me to conceive that Congress would have required States to fund a procedure that was in fact illegal on the vast majority of them. Secondly, Title XIX itself makes no mention whatsoever of abortion. Couple that with the fact that, every time save one, every time that Congress has addressed this issue, it has in one way or another expressed its clear displeasure with non-therapeutic abortions. The save one is the possible removal of the prohibition against funding of abortions as a family planning device, but there has never been an affirmative expression or approval by Congress of non-therapeutic abortions or funding thereof. Next and fourth I believe this is, every other circuit Court that I am aware of that has addressed this issue has gone contrary to the certain circuit on this point. Fifth, Pennsylvania?s medical necessity requirement and I have already eluted to this, is entirely reasonable. There can be nothing more reasonable in my view than in a medical services program relying on the judgment of the physician to determine which services are reasonable, which services are necessary and which services are not. Sixth, the Lower Court?s reasoning which basically relies on two points is faulty. First, the Court held that the medical necessity requirement interferes with the judgment of the physician. Well, we have discussed this already. But again, I will reiterate it. So there is no confusion about Pennsylvania?s position.
Speaker: You regard that as somewhat a contradiction in terms?
Norman J. Watkins: I certainly do. The Lower Court?s holding in fact, I found a little bit curious in the sense that it says that we interfere with the physician?s choice of non-therapeutic abortion. To me, that is a contradiction. Physicians, exercising their medical judgment, do not choose non-therapeutic services. The exercise of medical judgment a fortiori to me, is that when the physician determines service is necessary he is determining that it is necessary for medical reasons.
Potter Stewart: Well, some physicians perform professional services for purely cosmetic reasons?
Norman J. Watkins: Absolutely. Pennsylvania does not pay for those as part of its Medicaid program.
Potter Stewart: No, but in other words, why is it a contradiction in terms? They do other things besides therapeutic??
Norman J. Watkins: That is correct, but it would seem to me that a nose repair let us say for purely cosmetic reasons would not be a therapeutic procedure. It would be a medical service. This is no question that the physician will be required to perform it.
Potter Stewart: Properly and legitimately performed by a physician.
Norman J. Watkins: No question about it and a physician probably would be required to perform it, but that does not make it medically necessary. In other words, when the physician examines this individual, his diagnosis would not be, ?You need to repair your nose.? The physician, in that instance that you raise Mr. Justice Stewart, is really a technician. He is performing a service requested by the patient. The motivational factor is probably the key in this case. Who requests the service? Is it the physician that requests the abortion? If it is, we pay. Is it the woman that requests the abortion? If it is, then we want to know from the physician, despite this request, in your judgment, is this procedure necessary? That is why I say the Court?s holding in the first instance is probably a contradiction in terms, at least to my mind. I have yet been unable to understand the distinction between non-therapeutic and medically unnecessary. Secondly, the Court held that our medical necessity requirement violates the general broad equality positions of Title XIX. Now, I have examined that reasoning very closely and all that can be set forth is that they have pointed to no instance in Pennsylvania where the medical necessity requirement is not applied and in fact, if the Lower Court?s opinion is to stand, what will be created is a situation where the woman who requires an abortion for non-medical reasons will be treated differently than all other medical assistance recipients in Pennsylvania because she will be entitled to reimbursement for a procedure non-medically necessary where no others would. The final reason that I am convinced that the Lower Court?s opinion must be reversed is the fact that respondents themselves have conceded that a medical necessity requirement is in fact permissible under Title XIX. I have addressed this in my reply brief. Unfortunately, I was informed this morning that my opposing counsel has not yet received it, I furnished him a copy. I am not certain what the problem was there, the service was made. The problem with this position of the respondents is first, that it is a little late. They have never questioned the use of the term health in Pennsylvania before. There has been no discussion of it in either of the opinions below. The fact of the matter is and we have discussed this quite line, Pennsylvania, as early as 1970, recognized that, and in fact, has no intention to interfere with the exercise of that physician?s judgment. We just want to make sure. We want to ensure that that step is not omitted. It is a medical services program, therefore, we want the physician to tell us that these services are required not the woman. Now, there had been some fairly sophisticated definitions and syllogisms urged upon this court by an Amicus and the respondents. One, being that it is the condition of pregnancy that determines whether a service is medically necessary. I would submit to you first that Pennsylvania does not fund conditions. It funds services and again, it is the physician.
Harry A. Blackmun: But it does fund pregnancy at some time, does not it?
Norman J. Watkins: No question about it. Yes, yes Mr. Justice Blackmun.
Harry A. Blackmun: And, is it not a pretty good argument that does fund conditions?
Norman J. Watkins: No, I will only say that the condition of pregnancy, for instance, one physician may treat pregnancy with a series of services A, B and C. Pennsylvania pays for those. Another physician may treat pregnancy with services D, E and F. We pay for the services. The physician determines what the condition requires.
Harry A. Blackmun: Well, I do not think you have answered my observations. Go ahead.
Norman J. Watkins: I am sorry Mr. Justice Blackmun. The argument can be made and has been made. I do not see the tie-in quite frankly. The second step of this rationale is that medical necessity must be defined as that type of procedure, that procedure which is a safe and efficacious response to the problem. First, what is the problem? Is the problem medical or is it economic or social? In this case, these plaintiffs had an economic, social, educational problem. They did not have a medical problem. That is the first problem with that definition. If the problem is medical, again, Pennsylvania pays.
William H. Rehnquist: Well, by hypothesis though these people have gone to some doctor, have they not, who would perform an abortion on them? I mean, they have not gone to a midwife?
Norman J. Watkins: Well no, a temporary restraining order was issued.
William H. Rehnquist: Well, is it not the gist of their complaint that they can find a doctor who would perform an abortion, but that Pennsylvania would not pay for it under the circumstances that they are performing?
Norman J. Watkins: Well, Mr. Justice Rehnquist, they cannot find a doctor that would say the abortion is medically necessary to preserve or to stave off if it affected their health. They certainly can find a doctor who would perform the abortion just as I could certainly find a doctor to perform cosmetic surgery on them. The distinction is that one is a consumer service, albeit a medical. The other, is a medical prescription for treatment.
Speaker: Related to health?
Norman J. Watkins: Related to health? That is what Pennsylvania intends to fund with its limited Medicaid resources and if this Court would reverse the Lower Court that is what Pennsylvania will be permitted to fund.
Speaker: General Watkins, in Pennsylvania is it lawful for anyone, except the doctor, to perform an abortion?
Norman J. Watkins: I do not believe that it is, but I am not a hundred percent certain of it.
Speaker: Well, it is not a consumer service that just anybody can perform?
Norman J. Watkins: That is correct, it is a medical service, but the distinction to me is very real and very clear. That is, if I go to a physician because I am dissatisfied with my appearance, I know that I have to go to a physician because I cannot get that service anywhere else. So it is a medical service, no question about that, but the physician is not telling me that I need that service to preserve my health. I am telling the physician I want it because my social life had an in-pass.
Speaker: Well, but I take it when a pregnant person goes to the doctor, sooner or later, she is going to require some kind of service by that doctor or some other doctor?
Norman J. Watkins: That is correct.
Speaker: There is medical treatment that is necessary.
Norman J. Watkins: That is correct.
Speaker: She can make one choice, she gets reimbursed, another choice, she does not?
Norman J. Watkins: If she makes one choice, she does not get reimbursed. If the physician makes the choice, she gets reimbursed. The problem is?
Speaker: Not when she makes the choice, if the physician makes a choice for an acceptable reason?
Norman J. Watkins: No, well, Pennsylvania does not place a premium on a physician?s choice of abortion for non-medical reasons. The reason to me is entirely reasonable. Physicians are trained in the skill of diagnosing medical needs. Pennsylvania places a premium on that. Pennsylvania does not place a premium on the physician?s recommendations of how to provide a better economic or social environment for that particular family. That is entirely reasonable in my view. Thus, if the physician, at any stage in the pregnancy says abortion is necessary, it is paid for or any other service, it is paid for. In fact, if the woman came in and demanded delivery services before the physician said they were necessary, they would not be paid for either. Is the question, who is requesting the service, who determines whether it is necessary? The problem with the Lower Court?s analysis is that if it is extrapolated, it would be very difficult to cap it. If you determine that it is a condition that determines medical necessity, you really have taken the physician out of it. You have taken the physician out of the program thus Pennsylvania can list 30 or 40 conditions and that is it, any service that any physician will perform for that condition, be it an accurate dispensation of services or not, Pennsylvania must be required to pay. We consider that error and we request this Court to reverse the opinion of the Third Circuit. Thank you!
Speaker: Mr. General, let me ask one other question. It just crossed my mind. Supposing during child birth, a doctor determined that it would be desirable for a patient having a particular kind of anesthesia, but that was not really necessary. She could get to deliver the child without that particular anesthesia, but it is more expensive. Would she be reimbursed for that?
Norman J. Watkins: If the physician?
Speaker: Is it necessary for it be reimbursement?
Norman J. Watkins: We give the physician broad discretion as Mr. Justice Blackmun brought out of me initially in this argument. If the physician thinks that it is advisable in his view.
Speaker: But not medically necessary. That is my question.
Norman J. Watkins: Then, it would not be paid for. As a practical matter there would be no way of?
Speaker: As a practical matter it would be paid for, but?
Norman J. Watkins: Probably there would be no way of marshalling it because the physician would not say that it is not medically necessary. If the physician came out and said, ?I applied this most expensive anesthesia although it was not medically necessary,? it would not be reimbursed.
Speaker: In other words, if he said, ?I advised her that it was not necessary, but she insisted upon it as a matter of choice? then you would not pay for it?
Norman J. Watkins: Absolutely. That is correct. Thank you!
Speaker: Very well Mr. Watkins. Mr. Crosby.
Judd F. Crosby: Mr. Chief Justice and May it please the Court. The Court has today before it in Title XIX, what the Second Circuit has otherwise described as a long and complicated statute. Given the complexity of the statute, respondents submit that the statute is certainly capable of various judicial approaches. The approach which respondents presented to the Court in our brief attempts to take an account the traditional roles of all the participants necessary for the delivery of medical services to the indigent, that is the State, the provider of services and the recipient of the services. Keeping that distinction in mind, as we go through the argument, I think, it is important to keep in mind the distinction between state attempts to eliminate a broad condition and state attempts to limit a physician?s choice of alternative treatments for a given condition because as we see with the situation of pregnancy and the alternative treatments for that condition that the realm of the physician?s discretion which my brother at the bar, Mr. Watkins suggested he was not trying to interfere with, is in fact being interfered with. What respondents have done is looked to Section 1396-AA-17 of the Act which requires mandates upon the States that they include reasonable standards for determining the extent of medical assistance and that those standards must be consistent with the purposes of the Act. What respondents extrapolate from that language is that the State must have some rational reason when they begin to eliminate services from coverage under the Medicaid Program.
Speaker: Mr. Cosby, I am confused about one preliminary matter and I should have asked Mr. Watkins maybe. Do we have today funding for these abortions that your clients want?
Judd F. Crosby: My clients, of course Your Honor, the 11 respondents have already received their abortions pursuant to the temporary restraining order back in 1973. The State instituted a temporary revised policy where they eliminated the distinctions between medically necessary and other abortions and that is in effect today.
Speaker: As a result of this injunction and this litigation?
Judd F. Crosby: Well yes, the Third Circuit's declaratory judgment.
Speaker: But are funds available?
Judd F. Crosby: To the best of my knowledge Your Honor, yes.
Speaker: What in the light of the Hyde Amendments are the funds available?
Judd F. Crosby: Yes Your Honor.
Speaker: I want to be sure we have a live controversy here.
Judd F. Crosby: I think we do. I do not think if we are talking about the mootness issue in terms of the Hyde Amendment, I do not think, given the fact that it was enjoined and is still enjoined, that it is still the State Policy, the old State Policy, but for the temporary revised policy that we would be functioning under. Continuing then, what respondents assert is that we must look at what interests the State might suggest are being furthered by their Restrictive Medicaid Abortion Policy which is consistent with what the Lower Court did. Initially we have looked to a fiscal interest and respondents submit as the Lower Court found that given the cost of prenatal, obstetrical and post partum care that there is simply no fiscal interest being furthered by the State?s Restrictive Medicaid Abortion Policy.
William H. Rehnquist: Are you arguing the Constitutional question or the statutory question?
Judd F. Crosby: Only the Statutory question Mr. Justice Rehnquist.
William H. Rehnquist: And why do you look to these particular interests in arguing the statutory question?
Judd F. Crosby: I think that the fiscal interest, for example, Congress was concerned about the State?s concern for its limited financial resources to distribute limited Medicaid resources and that is why we would submit that the State could, in some cases, rely on the saving of money as an interest to eliminate particular services.
William H. Rehnquist: Well, do you not have to start from the other end though and show why the 1965 Act of Congress prevents Pennsylvania from doing this unless it can show these interests you are talking about?
Judd F. Crosby: I think Your Honor, if you are talking about a standard for inclusion then what we are saying is what the attorney for the State said in his argument that is that he is going to look to the physician?s discretion to the extent that a particular service is within the legitimate practice of medicine within the State then it is included because of the emphasis that the Statute puts on physician?s discretion. Now, that works for the best interest of the recipient.
William H. Rehnquist: When you say the Statute, you mean the Pennsylvanian Statute?
Judd F. Crosby: No Your Honor, the Social Security Act.
William H. Rehnquist: What is your authority for that last statement?
Judd F. Crosby: The emphasis that the statute places on the physician?s discretion is found in several places as we have analyzed in our brief. First, we look to the simplicity of the Administration and the best interest requirements, specific statutory requirements and say that within those two provisions is found the notion that the recipient?s best interest can only be furthered when the doctor is making the decision as to alternative treatments for a given condition. That to the extent of the State becomes involved in those medical determinations as this Court realized in Doe v. Bolton that the best interests of the recipients are not being served. We had also pointed to the precedent of, excuse me not the precedent, but the Lower Court decisions in Row v Ferguson, in Row v Norton indicating that the statute places great emphasis on physician?s discretion and also we point to page 8 of the brief for the State where they agree that the Statute places great emphasis on physicians.
Speaker: What if the State excluded appendectomy?
Judd F. Crosby: If the State excluded appendectomy Your Honor, it would have to be analyzed in terms of those interests. I think that may be out there somewhere in the future case. I think that there are specific provisions, for instance, the H.E.W. regulations which prohibited an exclusion based on diagnosis type of illness or condition.
Speaker: What are the precise statutory tests? Is it as the government?s Amicus brief says, whether or not the State?s program establishes reasonable standards for determining the extent of medical assistance under the plan which are consistent with the objectives of Title XIX? Is that the positive standard?
Judd F. Crosby: Yes Your Honor, to the extent that what that means is if a particular service is within the legitimate practice of medicine that standard says it should be included. Now, we do not admit that everything?
Speaker: We have a statutory preliminary lead here, at least we have a statutory question?
Judd F. Crosby: Correct.
Speaker: Whether or not what the State has done here is consistent with Title XIX and it is such an inquiry, it is quite important, I think to find out what statutory language we are talking about and have I correctly quoted the applicable statutory language?
Judd F. Crosby: 1396-AA-17, Your Honor. The State must include reasonable standards to determine the extent of medical assistance which are consistent with the objectives of the Act.
Speaker: Right, those are the dispositive words?
Judd F. Crosby: Yes Your Honor.
Speaker: (Inaudible)
Judd F. Crosby: Correct Your Honor. What we are saying basically is that what that means is that given the particular service is within a legitimate practice of medicine then the State is going to have to show some specific interest that is being furthered by their exclusion of that acceptable practice and this is particularly important when the State is not eliminating broad conditions as the Lower Court recognized. It is particularly important when the State is directly interfering with choice of the physician.
Speaker: Does the record show that doctors would have performed these abortions in these people here?
Judd F. Crosby: Yes Your Honor. If they are going to be reimbursed, they would have, the stipulation in the affidavit of Attorney R. Stanton and Waldwick (ph), I believe it is page 31 of the appendix.
Speaker: Even though it was not medically required?
Judd F. Crosby: No the physicians refused to perform the abortion and that is why the temporary restraining order had to be issued. They refused because the services were not going to be reimbursed by the State.
Speaker: But my point was they would have done it if they had been paid?
Judd F. Crosby: Correct.
Speaker: Even though, medically, it was not required, is the record clear on that?
Judd F. Crosby: I believe so, Your Honor, the stipulation.
Speaker: Mr. Crosby, does 1396 indicate that the statutory objective of meeting the cause of necessary medical assistance?
Judd F. Crosby: No, Your Honor, specifically 1396-AA-17 does not address the question of medical necessity.
Speaker: I did not ask about A-17, I asked about 1396, anywhere in 1396?
Judd F. Crosby: They talk about, there is some language for instance in the purpose clause, the initial clause talking about?
Speaker: Saying what the purpose of the?
Judd F. Crosby: Correct.
Speaker: Alright, what would that say?
Judd F. Crosby: It refers to, if I could recall the exact language, it is necessary medical care in defining the class of persons who would be eligible.
Speaker: Do you not think that is rather relevant statutory language as to what the Social Security Act is trying to do?
Judd F. Crosby: Certainly Your Honor.
Speaker: Well, is that any different in what Pennsylvania, at least claims that its program provides for?
Judd F. Crosby: Yes Your Honor, because respondents submit that that language, what that means. For instance, on the appendectomy example that Mr. Justice Rehnquist used that if the state, perhaps the better example would be the one?
Speaker: The state has not excluded appendectomy. Does it claim that it is excluded things for abortions that are not medically necessary?
Judd F. Crosby: Correct Your Honor. What we say
Speaker: And the department that administers the Act says that this is what the Act aims at, namely just necessary medical services and that Pennsylvania?s program is consistent with the Act?
Judd F. Crosby: What we submit Your Honor is that the State could look to considerations of medical necessity in certain cases, especially when eliminating broad conditions. Normally, when they are doing that, it is going to be accompanied by the interest?
Speaker: Well, anyway that language is in the Act and it is relevant and does bear on the case?
Judd F. Crosby: It does on the case so far Your Honor. What respondents are saying is that, under a particular issue before the Court today, the State?s overall interest in terms of saving money, preserving maternal health and safety, they are not going to be defeated by affirming the Circuit Court?s decision. Proceeding to the second interest, which is I just mentioned, was maternal health and safety, I would refer the Court to an article not mentioned in respondent?s brief which is the morbidity and mortality report of H.E.W., volume 24, number 3, dated January 18, 1975 simply substantiating the notion that abortion services in any trimester are safer in terms of mortality and morbidity than child birth and I would also refer the Court a statement to that effect in the affidavit of Doctor Douglas Thomas in the appendix of page 36-A. The final potential?
Speaker: Before you go on, let me return to the appendectomy. There was a period in medical factor says these things go and appendectomies were a fad and doctors were doing it, surgeons were doing it in preventive way, so that you do not have an attack of appendicitis while you are out on a hunting trip or some such thing. Now, suppose you have an appendectomy which is performed that where was no medically indicated acute condition or necessity for it, but for which a surgeon could be found to perform it. Do you think Pennsylvania should pay for an elective appendectomy which is not medically indicated?
Judd F. Crosby: In a situation like that Your Honor, given the utilization review, we would submit, no. We would distinguish that situation very clearly from a situation where a woman is pregnant and as the question of Mr. Justice Stevens brought out and Mr. Watkins agreed that when a woman is pregnant, she requires medical services and the only question is are the medical services going to be resolved in termination of the pregnancy or they are going to be addressed to the woman?s condition, a childbirth? So again, in terms of that medical necessity thing, I will bring out quickly this time that we are talking about a condition that does require medical services and that is distinguishable, I think from your situation. Clearly, if the woman is not pregnant then we are not maintaining to the State would have to reimburse for the abortion services.
Speaker: Mr. Crosby can I just interrupt? I am still troubled by the same problem I think that Mr. Justice Rehnquist was concerned about. You are arguing about state interests that are not necessarily served here. You argue the physical interest and maternal health interest, but neither of those is an argument made by your opponent. We would basically have a statutory question and you have not met any of the seven points he makes. I assume you are going to meet those rather than arguing what sounds to me like a constitutional arrangement?
Judd F. Crosby: Two points then Your Honor. I think, it is very important, given the section of the Act that we are going under to understand that what we submit the State is putting up a smokescreen almost in terms of the language and medical necessity and they cannot as we are to the brief that medical necessity in a vacuum. It is not sufficient under the Act. That is normally medical necessity consideration for furthering other interests such as fiscal interest. I can, very quickly at this time perhaps diverge from a normal pattern here and get back and take a quick look that some of the considerations that Mr. Watkins raised. For example, he talked about the illegality of abortions in 1965. I would refer the Court, in terms of legislative history, to the House report number 213, the 89th Congress, 1965, page 24. Now, that house report was talking about Title XVIII Medicare, but as many other Courts have recognized, the legislative history can be read somewhat correctively and there, they specifically stated that in terms of the extent of services that they intended to include new services as they were adopted in the future, indicating the breadth of what Congress intended in 1965. I would also refer the Court to the drug example of the Lower Court. When they were talking about (Inaudible) new drugs became marketable that they could not read the statute as requiring them to be prohibited. Also, I would suggest that in 1972, not 1965, when Congress amended the Social Security Act to include family planning services that they were aware at that time the H.E.W considered abortion to be part of comprehensive system of family planning services. There again, when they were specific using the term family planning services, indication of their intent to include abortion and finally I would refer the Court to the case of the United States versus Southeast Underwriter?s Association a 322 U.S. 533 where the Court realized the expansive nature of the Sherman Antitrust Act and that is exactly what we are saying is involved here in terms of allowing for new services as they are developed in the future, meaning of course, whether or not they are legally developed in the future or medically developed in the future as they become an accepted legitimate professional service.
William H. Rehnquist: When you say allowing Mr. Crosby, for what you mean really, is requiring it?
Judd F. Crosby: Correct Your Honor. What Mr. Watkins raised in terms of the lack of specific language in Title XIX, respondents would submit that, as we have pointed out before, that the Second Circuit described it as the long and complicated statute and they did not really have mentioned any specific service and there is no reason to have expected them to specifically refer to abortion services. However, we would also submit, in terms of the specificity argument, that again, the term family planning services when it was added to the Act in 1972, it is narrow enough in terms of what the Congress was attempting to accomplish through family planning services, that is to permit indigent women to limit and/or space their children, that the very alternatives available to the doctor to meet that purpose, for the woman, the alternatives are so narrow, that Congress must have meant for the States to include all those alternatives.
Speaker: Mr. Crosby, let me just, perhaps you have answered in your brief, but I am just trying to be sure I understand. Is it your position that an abortion on demand is ?necessary? within the applicable standard or that the State may not impose the standard of necessity?
Judd F. Crosby: The latter.
Speaker: And so it may not impose the standard. Then in my example about anesthesia where the patient wants a more expensive anesthesia than the doctor could in good conscience say it was necessary, is she entitled to it?
Judd F. Crosby: I would submit, Your Honor, no. I assume that the doctor is making that determination because of alternative anesthetics available. What we are saying is when the doctor and the woman are faced with condition of pregnancy; they have two alternatives, childbirth services or abortion services. And in that context, neither service can be considered more or less necessary than the other service. So it is distinguishable from a situation where a doctor, for very obvious reasons, might say something that is not medically necessary. And we do admit that the State can consider notions of medical necessity again such as the example we used in our brief which was the physical examination. They could say physical examinations; the State will determine are not medically necessary. Now, some doctors may disagree with that, but to the extent that they say that and use that to exclude that service, they are also saying that the money that we are going to save by not providing those services can be addressed to more urgent needs. But when the state says medical necessity, in terms of the issue before the Court today, there is no moneysaving. There is no one else to be serving. There is no interest to be furthered when they say medical necessity at the time of utilization of the service. Turning quickly to the family planning services argument, again, trying to be brief, focusing in on the H.E.W regulations, respondents submit that the regulation contained in the 45-CFR-249-10-A-5 namely that H.E.W. requires that the services provided must be sufficient in amount, scope and duration to reasonable achieve their purpose. And, what we are saying here as I indicated before, the specific Congressional purpose of the family planning services was to permit the indigent woman to limit or space her children. That goal is so narrow that if you eliminate what has been professionally accepted as a part of a comprehensive system of family planning services, namely contraceptive, abortion, sterilization and treatment for infertility, that the State?s discretion becomes much more narrow and in fact, they cannot restrict the services of any of those four major components of a comprehensive system of family planning services. Secondly, as to the categorically needy individuals, we focus on the H.E.W. requirement that the State cannot arbitrarily deny or reduce the amount, scope or duration of the service because of the type of illness or condition. What we submit for the categorically needy women that to the extent that a woman?s previous family planning services did not work, that is a method of contraception failed and she is now pregnant, she is totally being excluded by the State?s restrictive policy and secondly, for those women who never sought family planning services until they became pregnant, she too. We have two classes of individuals who are totally being excluded by the State?s policy. Returning quickly to the medical necessity issue, our position here is that, again, medical necessity in a vacuum that is where the State cannot show some other interest that is going to be furthered is not permitted under the Act because the Act requires a rational connection between the exclusion and the furthering of some legitimate state purpose.
Speaker: Mr. Crosby, are you going to enter the cosmetic point on which the State put reliance on?
Judd F. Crosby: Your Honor, I think the cosmetic point is disposed off simply by saying as Mr. Watkins indicated that at the point where doctors, it is not a doctor?s decision. In other words, the doctor does not address to him or herself to a twisted nose. Nothing else is going to happen. The person will continue to have a twisted nose, unlike the pregnancy example, where the State has admitted in their argument that the condition of pregnancy requires medical services and that there is no reason, especially given this Court?s announcements in..
Speaker: Those are medically required in this case.
Judd F. Crosby: Correct. Yes and I agree with that, Your Honor.
Speaker: And you see no connection?
Judd F. Crosby: I see the connection to the extent that they are trying to use that example to limit the abortions that they will cover under the Medicaid Program by saying that it has to be necessary at the time of utilization and this is why I referred to it earlier as a smokescreen in terms of the requirement of medical necessity. The State has no legitimate reason, especially given the Court?s position in Row v. Wade and Doe v. Bolton to assert that an abortion service is any more or less necessary or childbirth services is any more or less necessary than the other.
Speaker: It is because once a woman is pregnant it is clear that the services of the physicians are going to be medically necessary, either by reason of miscarriage or a live birth or an abortion?
Judd F. Crosby: Correct Your Honor and that this statute has to be interpreted in terms of what the State can do under the guides of medical necessity with that in mind.
Speaker: Does the fact that the medical services are necessary mean that any particular medical service, namely an abortion, is in that category?
Judd F. Crosby: Depending on how we look at medical necessity Your Honor, what we are saying at that point is a particular service that is an alternative treatment for a condition, that at that point when the state begins to draw the guidelines as they have, that they are impermissibly interfering with that physician?s discretion. Now, if you are out of the area of what you are talking about?
Speaker: How do they interfere with the physician?s discretion when the State suggested that the physician informs the State that it is medically necessary for the protection of health or life, that the State does not challenge that? It is the affirmative policy of the State to reimburse for those services.
Judd F. Crosby: I could never hear that before today, Your Honor.
Speaker: I think it is considered State?s program.
Judd F. Crosby: I would point out that many of the things that we heard today, I was hearing for the first time in terms of what the State?s program will cover. I would submit to the Court that if the State?s program was as all encompassing as it was presented to the Court today that I would see no reason why they had contested the temporary restraining order in the first instance. Clearly, there are grave restrictions. They did not admit that any of the women, any of the respondents were entitled to an abortion. They fought reimbursement for the abortion in every single case. I would submit in terms of the issue of necessity as it relates back to the Court?s announcement in Doe v. Bolton that in fact under that analysis the only abortion services that could be classified as unnecessary would be those where the woman was not pregnant or where the abortion services were not going to operate to the best interests of the woman. That is where perhaps she did not consent or was not aware about what was going on in terms of medical services.
William H. Rehnquist: Well, do we have a live case here? How about the particular plaintiff that filed this action in the District Court? Would they meet the Pennsylvania requirements or would they not?
Judd F. Crosby: I do not believe they would have Your Honor.
William H. Rehnquist: Well, then I take it that the State was justified on the terms that now argued in contesting the temporary restraining order. It may have not done it on those grounds, but certainly it was justified if policy would have been as now announced would have been infringed by the temporary restraining order?
Judd F. Crosby: Correct Mr. Justice.
William H. Rehnquist: Are you not arguing that the State is required to reimburse for every abortion on demand? Is that what your argument comes down to?
Judd F. Crosby: I do not believe so, Your Honor. Keep in mind that under the medical assistance program, no one is guaranteed services. In other words, the State does not ensure that I, as a potential recipient, am going to have a doctor. They cannot ensure that the doctor or doctors in my community are even going to participate. So we are not in that sense talking about abortion on demand. The final point is that respondents are still talking about services performed by physicians to the extent that?
Speaker: Let us change the question to elective abortion then and perhaps, that is a little less loaded.
Judd F. Crosby: So called elective abortion, Your Honor.
Speaker: When elective abortions are used, the State must pay for it.
Judd F. Crosby: What we say Your Honor is that under the statute there is no distinction between elective abortion and any other abortion.
Speaker: Well then your answer to my question must be affirmative, is it not?
Judd F. Crosby: Except in the two ways that we singled out. It is still the decision for the patient in consultation with the doctor?
Speaker: But you do not have an elective abortion unless the woman elects. That is what sets this chain of events in motion, is it not? If she does not elect there are no problems.
Judd F. Crosby: I could conceive Your Honor of a physician where the patient did not elect to have the abortion, but because of very obvious factors to the doctor, that he would advise the patient to go through with an abortion and they can include many, many factors that the Court recognized. It could be four years into the future that the existence of the unwanted child is just going to totally disrupt the woman?s existence. So we are still saying that it is a joint decision.
Speaker: Mr. Crosby, you indicate that the necessity issue should be decided against the background of some state interest according to necessity. Would you say that a State?s interest in saving the lives of the unborn fetus is totally illegitimate?
Judd F. Crosby: I would submit Your Honor that legitimate statutory purposes have to be defined in context of the Constitution to the extent that that interest is unconstitutional.
Speaker: Well, it is not a compelling interest under the rule but is it not totally illegitimate interest that should be entirely ignored?
Judd F. Crosby: To the same degree as in Row Your Honor. That interest could be asserted after the point of viability.
Speaker: For that, there is not interest whatsoever, you would say? Did you have to take that position?
Judd F. Crosby: Correct.
Speaker: I think you do and that would be your position?
Judd F. Crosby: Yes that would be our position Your Honor because again, the interests have to be interpreted.
Speaker: For the first trimester there is absolutely no State interest whatsoever in saving the life of the unborn?
Judd F. Crosby: Correct. Thank you very much.
Warren E. Burger: Do you have to hang further, Mr. Watkins?
Norman J. Watkins: Three points, Mr. Chief Justice and May it please the Court. First, the reason that my brother opponent is hearing a lot of this for the first time is of course he has raised a lot of it for the first time at this late date. I might point out in answer to Mr. Justice Rehnquist?s question we do have a lot of controversy because the plaintiffs themselves admitted and I am quoting from page 1 and 2 of my reply brief. ?In a stipulation filed with the Court, continuance of the pregnancy did not threaten the health or life of the mother,? referring to some of the plaintiffs of this case. So there is no question, but that the plaintiffs in this case were seeking an elective, non-medically necessary abortion, however that term is defined. Obviously, these stipulations were of plaintiff?s counsel. There can be no question at this point that we have a live controversy. Secondly, counsel asserts that family planning services requirement of Title XIX is broad enough to cover abortions. It may well be. The question is not whether it is broad enough to cover abortions, the question is does it mandate abortions? In fact, I would inform the Court that H.E.W. which by the way has taken a position supporting the Commonwealth through the Solicitor General, in this case, H.E.W. will not reimburse abortions as a family planning device logically because the reimbursement rate is quite high. It is 90% for that family planning device and it is substantially lower in the other portion of the Act. Respondents are arguing that pregnancy requires medical services and I quote my opponent, ?And the only question is whether or not the pregnancy is going to be terminated.? That is not the only question. The question is whether or not the services are sought by the physician or sought by the patient. Whether or not they are elective or whether or not they are medically required. If they are the latter, we pay. If they are the former, we do not and this is consistent throughout the entire program with the exception of family planning which is by definition a preventive medical care program.
Thurgood Marshall: On behalf of a lot of proposition to operate on anybody, if it did not come to end?
Norman J. Watkins: That is correct Mr. Justice Marshall.
Thurgood Marshall: I do not understand your point.
Norman J. Watkins: The point is that a pregnant woman going to a physician for examination of pregnancy, she has the option, clearly, to say, ?I want to terminate this pregnancy.?
Thurgood Marshall: Or go through childbirth?
Norman J. Watkins: Or go through the childbirth, but the physician?
Thurgood Marshall: And both are medical?
Norman J. Watkins: That is correct.
Thurgood Marshall: That is why she went to the physician.
Norman J. Watkins: That is correct, but the physician under Pennsylvania?s Medicaid Program, has the option of choosing all the pregnancy related services that he in his medical judgment determine, are necessary for the preservation of that woman?s health. In this case, the physicians and the plaintiffs by their own admission did not need an abortion for the preservation of their health.
Speaker: But Mr. Watkins, how do you respond to his argument that the whole purpose of the medical necessity requirement is fiscal and in order to avoid the unnecessary expenditure of funds and then here the abortion would be the less expensive of all the alternatives?
Thurgood Marshall: Well, first, I would say that we are bound by the equality requirements that I have mentioned at the outset of my argument and that if we made an exception in the abortion case because abortions happen to be cheaper than full-term delivery services, that we would be violating those very provisions of the Act. We must have a consistent program and consistency in this case, is medical necessity.
William H. Rehnquist: Mr. Watkins, let me ask you one other question about the liveness of the controversy. The stipulation you refer to certainly shows you have a controversy between lawyers on both sides. I still have a reservation in my mind as whether you have this controversy between the clients. Did you try this case in the District Court?
Norman J. Watkins: No, I did not Mr. Justice Rehnquist. However, the plaintiffs in this case filed affidavits of their own in which they at least in and I pointed out in my footnote of my main brief, at least two of them affirmatively stated that they did not seek abortions for health reasons.
William H. Rehnquist: Why would a plaintiff who wanted to obtain an abortion funded with Federal and State funds affirmatively state that she could not meet one of the qualifications?
Norman J. Watkins: I can only assume one I assume it was true and two I assume that?
William H. Rehnquist: She wanted to test the situation?
Norman J. Watkins: She wanted to test the statutory and the constitutional fabric of her contention. But, first and foremost, I certainly hope it was true.
Speaker: Perhaps, it would be more accurate to say that she did not give the legal questions any thought one way or the other, but that her attorneys did?
Norman J. Watkins: That I could not say Your Honor. All we could do is deal with the facts as they are put before us and here the facts are very clear. Thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: 293, Robert Eli Stanley, appellant, versus Georgia. Mr. Sparks, you may continue with your argument.
J. Robert Sparks: Mr. Chief Justice and Honorable Justices. At the recess yesterday afternoon, I was just completing my response to a question by -- questions by Justice Douglas, excuse me not Douglas, Brennan as to the evidence of scienter and I have practically completed my summary of the circumstances which we feel justified the jury to find that this defendant knew of the obscene nature of the matter. I just want to elaborate any one --
Byron R. White: You aren't arguing that, are you that he knew it was obscene? You're just arguing that he knew the contents of the film?
J. Robert Sparks: That's right, the contents of the film, that he knew the contents of the film, they are of the obscene nature of the film. That is the way the Georgia statute reads that, I believe. I just want to point out two things in relation to his statement and I will move on to something else. In his unsworn statement, he attempted to explain his possession of the films in a manner consistent with lack of knowledge of the contents and I submit that it was unreasonable explanation, some point unreasonable in two respects. First, he said that a friend brought films by and left them with him saying that he wanted the appellant to view the films. I submit that it's somewhat unreasonable that films would have exchanged hands without some explanation on the part of the unknown friend, or some query on the part of the appellant as to what kind of films are they, particularly the small eight millimeter films in the can with a homemade label. I feel quite sure that if anyone came to me and said I've got some films I want you to see, I'd say, “What are they? Films of your fishing trip, or your family or --
Byron R. White: What if you asked him and said, “They are films about girls.”?
J. Robert Sparks: Then I think you --
Byron R. White: (Inaudible) and would you know, or would you have any real clue, that they were obscene films?
J. Robert Sparks: I think that would warrant further inquiry, Justice White.
Byron R. White: That may be, but what evidence is there that there was ever any further inquiry or further investigation as to what the films were about?
J. Robert Sparks: There is no -- there is no evidence because, of course, this was an unsworn statement and the state was not allowed to cross-examine or go into it without his consent unless he voluntarily submitted himself to cross-examination.
Byron R. White: Well, the state has the burden of proof, doesn't it?
J. Robert Sparks: Sir?
Byron R. White: The state has the burden of proof, doesn't it?
J. Robert Sparks: Yes sir, the state has the burden of proof, Your Honor. But I think this is both federal and state law as I recall from my days as an Assistant U.S. Attorney, that where the defense goes ahead with the an affirmative defense, then not the burden of proof but the burden of reason -- of making a reasonable explanation shifts to the defendant and that leads me to my next point and that is that if he did not identify his friend. He did not -- he neither produced him nor identified him by name.
William J. Brennan, Jr.: In that statement, he also said, “I never the saw the film before today and never had shown them to anyone, so help me.”
J. Robert Sparks: Yes, sir, that is true. And I want to point in that connection before passing this subject, the case of Smith versus California which this Court decided and which the defendant was convicted for the offense of bare possession of matters under California ordinance which had no element of scienter is interpreted by the California Supreme Court and the Court said in an opinion by Mr. Justice Brennan, we might observe that it has been sometimes since the law viewed itself as impotent to explore the actual state of a man's mind, eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was well aware of what a book contained despite his denial and I submit that those quoted words are a pretty analogous to the facts in this case. We are relying on the circumstances. We have no direct evidence that he saw, that he knew what the films were but we submit that all the circumstances, the impending party, the films concealed, the title “Young Blood” is rather inadequate explanation.
William J. Brennan, Jr.: I'm really interested, how does that title suggest anything? I don't get this “Young Blood.” What's that suggest? Or is it my age? I don't know.
J. Robert Sparks: Well, I think it suggests sex, Your Honor. We normally associate sex with young blood, with young people.
William J. Brennan, Jr.: I guess it is my age.
J. Robert Sparks: I want to pass on to another point. I gathered yesterday from the questions asked my worthy adversary, Mr. Asinof, that this Court has not yet viewed the contents of the film, which were transmitted to this Court by the direction of the Georgia Supreme Court. I wish to most respectfully and humbly urge this Court to view the films before ruling on the case.
Abe Fortas: Do you think we have to view the film if there are -- do you think we have to view the film if there are constitutional bases that don't relate to the subject matter of the film for disposing of this case such as the question of mere possession or the search and seizure question?
J. Robert Sparks: Your Honor, I --
Abe Fortas: Why would you want us to view the film?
J. Robert Sparks: I was fixing -- that was going to be my very next statement as to the legal reason why I feel that the films should be viewed.
Abe Fortas: Even if we think that you can dispose of this case, it must dispose of the case on the possession ground, or the search and seizure Fourth Amendment ground?
J. Robert Sparks: Yes, sir. I do for this reason.
Abe Fortas: Alright, tell me why.
J. Robert Sparks: This Court or the majority of this Court has consistently held in obscenity cases from Roth on through Jacobellis, Mishkin, Ginsberg, Memoirs, even Redrup I believe and the last Ginsberg in 1968 that obscenity is not protected by the First Amendment to the Constitution. And if the Court views these films and finds that they are not only -- they are not borderline obscenity but a hard-core pornography --
Abe Fortas: You mean, if this is obscene -- if this obscene, we should not reach the Fourth Amendment question?
J. Robert Sparks: You should not reach the First Amendment question.
Abe Fortas: The Fourth Amendment question, search and seizure.
J. Robert Sparks: Oh! No, sir, but I'm not saying that. I think as a matter of fact, I am not absolutely certain Justice Stewart that the search and seizure. The question is actually before this Court.
Abe Fortas: I'm Fortas. This is Stewart.
J. Robert Sparks: Oh! Mr. Fortas, excuse me, I'm sorry. Search and seizure is not an appealable question. The Court noted probable jurisdiction without restricting the question to the only appealable question which is the constitutionality of the Georgia's search and seizure, I mean the constitutionality of the Georgia Obscenity Act. And the same thing happened in the Mishkin case and the Court dismissed. They said that the search and seizure question was properly briefed by both parties but then are declined to pass on it and said that probable jurisdiction had been erroneously noted as far as that's concerned. However, I do feel that the Court would have to pass on the search and seizure question but right now, I'm addressing myself to the constitutionality of the Georgia statute.
Abe Fortas: Well, I understand, but I want to be clear on one matter with respect to your position.
J. Robert Sparks: Yes, sir.
Abe Fortas: Now, here are some allegedly obscene films. I haven't seen them but if I should decide that this case must be reversed on the possession point, or on the search and seizure point, Fourth Amendment point, I would not consider it as presently advised, I would not consider it necessary to endure a sight of motion picture films whatever their content may be and do you consider that -- do you disagree with that present thought of mine?
J. Robert Sparks: I disagree with it Your Honor, so far as the First Amendment.
Abe Fortas: I'm not talking about the First Amendment, I'm talking about the two points and I'm talking about, namely the possession and the manner of seizure which the Fourth Amendment points.
J. Robert Sparks: Well, Your Honor I feel that the possession is the First Amendment. And maybe the possession is the First Amendment point, in the sense but not in the sense that you're talking about I take it. I'm talking about the --
J. Robert Sparks: The appellant is asking this Court to declare a mere possession count as a mere possession with scienter count unconstitutional.
Abe Fortas: But if we should conclude that a statute making mere possession, a criminal offense is unconstitutional under First Amendment, regardless of the nature of the films then obviously, it wouldn't be necessary for us to see the films, would it?
J. Robert Sparks: Your Honor I take the reverse position. And I've said that you should see the films and if they are hard-core pornography and outside the protection of the First Amendment as this Court has held in Roth and a whole series of cases, then it would not be necessary for the Court --
Abe Fortas: I know but I say assuming that, we felt assuming that I should conclude that so far as I'm concerned, mere possession cannot be punished as a crime regardless of how obscene the film might be, then it would follow that it there'd be no point in seeing the film, isn't that right? I mean, that seems to me to follow as a matter of course. Now, I know your position is that if the film is obscene, mere possession can be punished. But I say that if I disagreed with that, then obviously, it would not be necessary for me endure a sight of this film. I'm not characterizing it as obscene.I don't know whether it is or not but it probably is not one of the greatest works of art that's ever been struck by the hand of man.
J. Robert Sparks: That's an understatement, Your Honor.
Speaker: And you real, isn't it, that appropriately some of these questions might be judicially resolved?
J. Robert Sparks: Yes sir, that's correct. That's what I mean.
Speaker: (Inaudible) I hope you're going to address yourself to the constitutionality of this statute: mere possession, without any purpose to exhibit, sell, or display?
J. Robert Sparks: Yes, sir, that's going to be my next point. To the best of my knowledge in research and I believe my --
Hugo L. Black: May I ask you before you do that?
J. Robert Sparks: Yes, sir.
Hugo L. Black: As I read the record, it seems to me that the only time it's established by evidence that the picture has been displayed in Atlanta, of course when it was displayed in the prosecuting attorney's office to a group of people, is that right?
J. Robert Sparks: That is the only evidence that it has been displayed in Atlanta. I recall that Your Honor asked me --
Byron R. White: Didn't the police look at it where they found it?
J. Robert Sparks: Yes sir, you're right. Thank you.
Byron R. White: Thank you.
J. Robert Sparks: They looked at it in the appellant's home and yesterday, Justice Black, you asked me about the -- what the expert photographer said. He said that the films are badly scratched, and dirty. They are not in new condition at all. That's where mistakenly said that they had seen extensive use. One reel rolled backward and never rewound after showing the film. And he says, “Yes, sir, they obviously have been shown before.”
Thurgood Marshall: But where in the record when you said there were shown in Georgia before? It doesn't say it at all. It says they were shown at some place before.
J. Robert Sparks: That's true, sir, Your Honor. We didn't have any eyewitness who watched this appellant show the films.
Byron R. White: And the undisputed evidence was that the appellant had barely come into possession of these films that very day.
J. Robert Sparks: That was not the evidence, Your Honor. It was in the form of an unsworn statement.
Byron R. White: Well, you've been talking about it, though, as the basis for much of your argument.
J. Robert Sparks: Yes, sir, under Georgia law, the court -- the jury can pay what attention to it wants to.It can either disregard it or --
Byron R. White: Well, are you suggesting that we should disregard that statement entirely?
J. Robert Sparks: I'm suggesting that the Court should consider it, and consider its deficiencies.
Byron R. White: Well, if we do then we know that he had barely come into possession of the films?”
J. Robert Sparks: Well, I don't -- I'm not saying that the Court should believe it all in its entirety because the natural thing for him to have done was that was that if that was true, they have brought the person in court or at least named him, so that the prosecution could've brought him into Court. I have only a couple of minutes left and I haven't even addressed myself to the --
Thurgood Marshall: Do you really need to bring him court? Or you would've arrested him, wouldn't you? Because he would've admitted that he had possession of these films.
J. Robert Sparks: It's entirely possibly unless he denied. He might have said, “No, sir. I don't know Bob Stanley, never say him before, and certainly, I didn't give him any films.” Then we would have made a state's witness out of him to and proven that the defendant made a false statement in his unsworn statement. On the question of which Justice Harlan asked me to address myself to the constitutionality of the possession statute, I really see no reason why a possession statute are making hard-core pornography obscene cannot be constitutionally enacted by state. States have many possession statutes and the Court knows them as well as that of possession of stolen goods, possession of concealed weapons without being -- without having licenses for them, possession of narcotics, possession of dangerous drugs, possession of burglary tools. The federal government has many possession statutes, possession of a car, transported or stolen car transported in interstate commerce, possession of money taken in an FDIC bank robbery, many possession statutes. And even during prohibition days, possession of -- bare possession of intoxicating liquors of any type was an offense. And I see no reason for the possession of hard-core pornography should not be made an offense and I know of no case which -- I think this is a case of first impression before this Court. I have not been able to find a case exactly in point. Now, in the Smith case, which this Court admittedly reversed, but only because there was no scienter, it seems to me that the opinion which I've quoted from once before indicates or implies that had the California ordinance had the element of scienter in it that it would've been constitutional because Mr. Justice Brennan said this. We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller quoting “for carrying an obscene book in stock.”
William J. Brennan, Jr.: For sale.
J. Robert Sparks: That is the --
William J. Brennan, Jr.: For sale. What' bookseller mean?
J. Robert Sparks: Yes, sir. But, Your Honor, the California ordinance did not have any element of carrying it in stock for sale. It just said possession, absolute liability, absolute criminal liability.
William J. Brennan, Jr.: But that case did involve a bookseller.
J. Robert Sparks: It did involve a bookseller.
William J. Brennan, Jr.: It did involve a prosecution for having books for sale, didn't it?
J. Robert Sparks: And I cannot see, honestly, where the First Amendment grounds hit this particular case. This man is not a bookseller. He was suspected of being a bookmaker rather than a bookseller. Now, he was not intending to sell these films so far as the available evidence indicates. The general public was not deprived of the right to look at the films. The Georgia Supreme Court, in distinguishing this case from the Marcus case, said as much in its opinion. It said that the Marcus case on the search warrant Marcus versus Search Warrant. It said that that case involves freedom of the press and freedom of speech. This case does not and I don't think this case involves under the facts of this case. This is just an individual. He is not being deprived of his right, though the public I should say is not being deprived of the right to view his films. I see I have the red light. If I might just --
Speaker: (Inaudible)
J. Robert Sparks: I might just say this if I might be allowed one more sentence. I feel that that is -- in the possession statute is necessary for effective law enforcement from the very type of evidentiary problems which have been pointed out by questions from this Court. If you catch a man with the pornographic material, how are you going to prove that he has read or he has looked at it, or that he intends to sell it? You can stop pornography at its source and I earnestly submit that this is the hardest type of hard-core pornography that this Court have ever had before. Thank you very much.
Earl Warren: Mr. Asinof.
Wesley R. Asinof: May it please the Court. With respect to Smith versus California, that prosecution involved a bookseller under an ordinance providing or referring to booksellers. Consequently, the sale -- we're dealing with a person now who is in the business of selling books.
Byron R. White: Give me your view of how you would argue the possession point, accepting the fact that the Court has said that that obscenity is not protected by the First Amendment.
Wesley R. Asinof: In the Roth case where that principle was established, we find that the Roth case was a question of distribution and in an instance where an individual who is possessing something that will admittedly say as pornographic, the Constitution does not protect him from the distribution and this is followed in the Redrup case.
Byron R. White: Now, but the case that the obscenity isn't in the First Amendment.
Wesley R. Asinof: That's correct. But the case was dealing with a question of the distribution.
Byron R. White: You mean obscenity in the course of distribution is not protected? And obscenity in possession is protected?
Wesley R. Asinof: That's correct. The case does not hold that bare possession or mere possession was not protected. The Court said in Roth that obscenity was not protected but they were --
Byron R. White: Well, the material doesn't change any, so what is the critical fact?
Wesley R. Asinof: The critical fact is --
Byron R. White: The material whether it's distributed or not is the same and it is either is or isn't protected by the First Amendment so what is different between possession and distribution?
Wesley R. Asinof: Because --
Byron R. White: What should you really focus on?
Wesley R. Asinof: Well, in the distribution, you're dealing with a question of furnishing it to others and the mere possession in your own privacy of your own home where no one else has seen it. There's no evidence that anyone has or no one else is intended to come into contact with it, I say that no case holds that it is not protected, that an individual cannot take a picture of his whole obscenity and for posterity for himself if he so chooses, because to do so, to prohibit a person from possessing it would in itself violate First Amendment rights. Because --
Speaker: What are you saying to your adversary's argument that the state constitutionally says, “We'll nip this business in the bud,” the person that is to say that given hard-core pornography or whatever you want to call it. What do you say about it?
Wesley R. Asinof: That in itself -- that in itself would be a violation of the First Amendment. To say that a person could not write what he wants in his own diary let's say, that he's going to keep for his own personal future in his own drawer not to be shown to any other persons, we say that the First Amendment is an absolute amendment that gives the man the freedom of the press and the freedom the press carries with it, the freedom of motion picture films.
Speaker: Well, the Court has held, at least the majority has held that it is not an absolute right in obscenity field.
Wesley R. Asinof: But that was held in the Roth case, if Your Honor please, and the Roth case involves.
Speaker: That starts from that premise.
Wesley R. Asinof: That's right.
Speaker: But your adversary is saying is that the state can legitimately, again, on the premise that what's involved here meets the Roth test.
Wesley R. Asinof: Then we come in to the Redrup case.
Speaker: (Inaudible)
Wesley R. Asinof: Well then we come in to the Redrup case which was decided since Roth and this Court last year in Redrup and the other cases that went with it reversed on the theory and on the principle, that there had been -- that this was not a case involving one of the three elements, either distribution to minors, distribution to persons who are unwilling to see it, or pandering as was held in Ginsberg. Now, if we accept Redrup as being the law, then of course we must take Redrup and Roth together as they both hold and say that obscenity insofar as it's mere possession and bare possession, to use that expression, the bare possession is concerned, would be protected by the First Amendment, because there you are not intruding upon the privacy or the rights of others to be free from this stuff. Now, in the finding -- one thing I would like to answer my opponent with respect to, he says that the state court found that the state statute did not remove the element of scienter. Now, the rule as I understand it is that this Court will accept an interpretation placed upon a state court as to a non-federal ground. But as to a federal constitutional ground, this Court is not precluded by virtue of a holding of a state court on a constitutional issue from reversing that state court because this is the final arbiter. This court is the one that must decide the federal ground. Now, secondly, in the brief of the appellee on page 45, he cites the case of Rainwater versus Florida which was decided by this Court during the last term. The Rainwater versus Florida case was one that originated in the state court. There was a federal search warrant issued under the Wagering Tax Act (Inaudible) certain items from the defendant's possession and they prosecuted them in the state courts. This Court remanded that under the theory of Grosso and Marchetti, remanded it back to the state court for further proceedings not inconsistent with Grosso and Marchetti. This is identical to the case we have here. The state says in its brief that there the prosecution, the state court, was the end-result of the issuance of the federal search warrant. That's what we have in this case. This prosecution for obscenity was the end-result of the issuance of the federal search warrant which actually under the Rainwater versus Florida doctrine was inadmissible as having been unconstitutionally obtained. Now, --
Abe Fortas: To get back to this possession point, under the state law, if -- assuming that possession were a crime, mere possession was a crime and not brought by the First Amendment, could the state get at a search warrant to search your own library on the basis of an affidavit that would say that you have in that library a copy of James Joyce's Ulysses, and a copy of this book and that book, and that there was a -- and therefore, they get out a search warrant to examine your entire library?
Wesley R. Asinof: I would not think so. I would not think -- I think that the Constitution, the Fourth Amendment says that the warrant shall particularly describe the articles to be seized.
Abe Fortas: In other words that they'd have to name the specific book?
Wesley R. Asinof: That is -- that is my view of that Amendment. Now, one point was raised by my adversary. He says that the evidence in the case indicated that one reel of film had been wound backwards or was scratched and that that would indicate that someone had previously viewed that film. But it would not show and we submit to this Court that that fact alone could not and would not show that this defendant or this appellant had ever viewed them. Now, in conclusion, I would like to state that since my opponent has -- or my adversary has suggested to this Court that this Court view the film, he has in effect stated that that how does this Court know that they are obscene without viewing them. Now, that is our very position in this case. We say that with respect to the appellant. The same position holds true. If he has never viewed the films, he would not obviously know that they're obscene because without viewing them, you cannot learn of its obscenity and that is the point that we have in this case. We say that since the evidence doesn't show that he ever viewed the films that therefore there's no evidence that he knew, or could have known that they were obscene.
Earl Warren: Very well.