Warren E. Burger: The case is submitted. We'll hear arguments next in Williams against Zbaraz and the two consolidated cases. Mr. Wenzel, you may proceed whenever you're ready.
William A. Wenzel, III: Mr. Chief Justice and may it please the Court. I'm appearing here today on behalf of Jeffrey C. Miller, the acting Director of the Illinois Department of Public Aid. Director Miller, the defendant below, appeals the ruling of the District Court which invalidated Illinois Public Act 80-1091 as violative of the equal protection of the laws for women who are seeking medically necessary abortions, but not abortions which were necessary to preserve their lives. The issue today before the Court is two-fold. First, there is the equal protection issue, whether or not the State may validly limit abortion funding under its medical assistance programs to instances where the mother's life would be preserved taking into account the State's interest in fetal life and also taking into account the State's willingness to fund alternative treatments to abortion. The second issue really should be discussed first, because it certainly shapes and clarifies equal protection issue, that issue is, what is the State's obligations under Title XIX of the Social Security Act? A short background would be appropriate to bring these issues into focus. The Illinois Generally Assembly in December of 1977 enacted on a Public Act P80-1091 in response to two federal initiatives. Earlier that year, this Court had issued it's rulings in the cases of Maher versus Roe, Beal versus Doe and Poelker versus Doe. Those cases stand for the proposition that indigent pregnant women have no constitutional right, nor statutory entitlement to a nontherapeutic abortion. Earlier, United States Congress, as was explored in a case that just preceded us, had enacted the first version of the Federal Hyde Amendment. The Federal Hyde Amendment limited abortion funding under the Medicaid Act, except where an abortion was necessary to avoid the endangerment of the woman's life.
Potter Stewart: Mr. Wenzel, just a -- let me see if I understand the appropriate statutory context to this case. When Title XIX was originally enacted, the criminal laws of many, if not most States, made the performance of an abortion a serious offense. And I suppose that nobody could have argued back in those days in 1965 when Title XIX was enacted by the Congress that Title XIX authorized or directed the States, let alone authorized them to pay for therapeutic abortions. Is that it?
William A. Wenzel, III: That -- that is correct.
Potter Stewart: And then came along this decision -- this Court's decisions in Roe and Doe, Bolton and thereafter, I suppose it was clear that Title XIX, this is prior to any Hyde Amendment, authorized and directed the States to cooperatively finance such therapeutic abortion.
William A. Wenzel, III: We do not take that position of --
Potter Stewart: You do not.
William A. Wenzel, III: -- interpretation of Title XIX.
Potter Stewart: But then clearly, you do take the position that after the Hyde Amendment, a State is not required to.
William A. Wenzel, III: That is correct. Our view of Title --
Potter Stewart: Now, which -- which of your position in that intermediate period? After -- after this Court's decisions in Doe and before the Hyde Amendment.
William A. Wenzel, III: After Roe versus Wade.
Potter Stewart: Yes, Roe against Wade and Doe against --
William A. Wenzel, III: The States were operating under a discretionary authority to fund abortions whether they'd be medically necessary or elective abortions or not fund such abortions. According to the primary test under Title XIX, that is whether there was a reasonable standard for establishing eligibility or the scope of medical assistance under the Act.
Potter Stewart: Your position is at Title XIX itself, prior to the Hyde Amendment didn't put any requirement on the States with respect to therapeutic abortions. Is that right?
William A. Wenzel, III: That is correct Your Honor. Now, what the Hyde Amendment did --
Warren E. Burger: How about the -- how about the abortions relating to the -- that would involve the health of the mother?
William A. Wenzel, III: What I was going to say I guess is a followup to Mr. Justice Stewart's question --
Warren E. Burger: That's what I meant, when I talked about therapeutic abortions.
William A. Wenzel, III: If it means what -- it depends on what we mean by a therapeutic abortion. I would take the -- we're taking the position here today that if by therapeutic abortion we mean simply health impairing, but not necessary to preserve life --
Warren E. Burger: And that's what I meant.
William A. Wenzel, III: -- that the State would have been free to exclude funding for such abortions because that is in our -- in our view of things, consistent with Section 1396a (a) (17), the reasonable standards language. But if by a therapeutic abortion, we mean an abortion which is necessary to preserve life or to avoid a threat of death, then I would say that any State that had such a total prohibition on the funding of abortions in 1974 for example, would not be able to meet the statutory tests set out in Section 1396a (a) (17). The Hyde Amendment effectively strips dates of the discretion to fund non-Hyde Amendment abortions.
Speaker: You mean --
Speaker: No, they can -- they can do it and pay it for themselves.
William A. Wenzel, III: It strips days of the discretion to fund them within the context of the Medicaid program. It lets them totally free.
Speaker: Congress -- Congress couldn't take that power away from a State, could it constitutionally?
William A. Wenzel, III: I'd -- making a distinction between stripping States of the discretion of doing something or funding something within the context of the medical assistance program, that is the joint cooperative program and what States do outside of that cooperative program within their own State-authorized and State-funded programs. Illinois in addition to the Medicaid program has two wholly State-authorized and State-funded programs, a program for general assistance, for -- program for aid to the medical indigent.
William H. Rehnquist: When you say joint assistance, you mean then partial reimbursement from the Federal Government?
William A. Wenzel, III: That is -- that is correct Mr. Justice Rehnquist.
Speaker: Just to be perfectly clear, Illinois is perfectly free to fund to abortions if it wants to, isn't it?
William A. Wenzel, III: Under its own programs, with its State, with its own funds, correct.
Speaker: They're going to pay for it.
William A. Wenzel, III: If it's willing to pay for them.
Potter Stewart: But -- but your position is that it's prohibited from doing so under the federal program.
William A. Wenzel, III: That is correct.
Speaker: Well, what in (Voice Overlap) --
William A. Wenzel, III: Which does not affect, though it's --
Speaker: What -- what in the Hyde Amendment prohibits that? All it does is the Government won't put any money on them, isn't that all (Inaudible)?
William A. Wenzel, III: Well, our -- our position rests with the analysis of the impact to the Hyde Amendment on -- on Title XIX itself as -- as the First Circuit in Preterm versus Dukakis and the Second -- Seventh Circuit.
Speaker: All that would any requirement of the State doing -- but it didn't say the State wasn't perfectly (Voice Overlap) --
William A. Wenzel, III: I -- I think the -- the argument has to be made that the Hyde Amendment has a substantive impact on Title XIX. There's a substantive impact on Title XIX by modifying the State's discretion to fund or not fund abortions. If it didn't have any substantive impact, then what it would be doing is altering impliedly the State's right to receive federal reimbursement, but there's no -- no evidence of that either in the language of the Hyde Amendment or in any of the debates in Congress -- that it would -- Congress intended to require States as a condition of participation in Title XIX, to fund non-Hyde Amendment abortions.
Speaker: I understand that but the Hyde Amendment itself is merely a refusal to -- to have any part of a particular annual appropriation of any part of that money be spent to reimburse the State for -- for its funding of abortion isn't that right?
William A. Wenzel, III: We -- we view the debates of Congress as having use an appropriation vehicle, but that they were clear -- the intent was clear that what they were doing is engaging in substantive legislation.
Speaker: Well, would you think that substantive legislation would survive this during the following year? There were no such writer to the appropriation bill?
William A. Wenzel, III: No, Your Honor. They would -- they would either --
Speaker: Or either one year --
William A. Wenzel, III: -- they have to come up but they --
Speaker: One year piece of a legislation issue.
William A. Wenzel, III: But in this particular case, this Court in prior decisions, has looked to see whether Congress has successively admit that the same sort of writer and when that sort of pattern of Congress's intent is -- is present then, it strengthens the conclusion that they intended to engage in substantive legislation.
Thurgood Marshall: Well, you can get any money for tuberculosis or mental health, right?
William A. Wenzel, III: That is --
Thurgood Marshall: And let you do have facilities, but that in –- in Illinois, don't you?
William A. Wenzel, III: Yes, we do Your Honor.
Thurgood Marshall: Well, could you setup a facility for abortion, for the same way?
William A. Wenzel, III: Yes, we could.
Thurgood Marshall: And pay for it yourself?
William A. Wenzel, III: Yes, we could do that Mr. Justice Marshall.
Warren E. Burger: Well, just to be -- be sure. I'm not sure what this page about or discussion about State's rights, sir. Prior to 1973, the State of Illinois through its legislature could have amended the law so as to achieve the same status for abortions as the opinion of this Court did, could they not?
William A. Wenzel, III: Yes, sir.
Warren E. Burger: And they could have either paid for all of them or paid for none of them, could they not, the State legislature?
William A. Wenzel, III: The State could have independent from its State Medicaid program, either paid for all or paid for none. But if the law for example had been amended in 1970, at that point in time, Illinois is participating in Title XIX. And as I answered the question of Mr. Justice White, I do not believe it would've been reasonable or consistent with the mandates under Title XIX for Illinois to exclude life preserving or life threatening abortions. Essentially, this dispute is a result of a footnote in the Court's ruling in Beal versus Doe, it said that serious questions would be raised if the Court – if the States intended to exclude medically necessary care and the Court in that opinion also made reference to the definition of medical necessity in Doe versus Bolton which said that an abortion is necessary when a physician exercising his professional judgment in light of all factors whether they'd be physical, emotional, psychological, economic, familial age, all of those factors. If they're relevant to health, the doctor should be giving that leeway. That is an appropriate standard within the context of litigation dealing with criminal sanctions. We feel that it is wholly inappropriate to impose that the District Court did below the Doe versus Bolton definition with medical necessity. What that does in effect is to transform the Medicaid program into a program run and controlled by providers as opposed to being run and controlled by the State. The State under Medicaid has discretion as we pointed out. Illinois has exercised that discretion, has made exclusions beyond merely abortions. We do not pay for several services of categories in particular procedures. We do not pay for infertility and sterility procedures. We do not pay for transsexual surgery. We -- imposed durational limitation requirements on inpatient care. Illinois view this -- participation in Medicaid as providing adequate, non-comprehensive care to the indigent and I think that that is crucial in helping to frame the constitutional question. Congress by repealing in 1972, the requirement that the States achieve a goal of comprehensive medical care by 1975, left intact the original intent, which was merely to provide adequate care. When Illinois excludes medically necessary abortions and will only fund abortions necessary for preservation of life, it is exercising the discretion that Congress vested in it to make these sort of choices.
Byron R. White: Even though -- even though some – even in a great many cases absent in abortion, there would be a serious health risk to the potential mother.
William A. Wenzel, III: The reasonableness of Illinois's exclusion here, I think hinges and part upon the availability of alternative forms of treatment under one hand, and that the type of abortions under, using the Doe versus Bolton standard, that plaintiffs are seeking to have funded is -- are so -- the -- the definition are so elastic that basically sweeps into its compass, all elective abortions. There is nothing to prevent physician from utilizing the Doe versus Bolton definition of medical necessity. In singling out the factor for example of age and saying that that is relevant to health and for then authorizing what would be an abortion that this Court said was not required to be funded under Maher or under Beal or Poelker.
Thurgood Marshall: Which was –- I understand you that without the Hyde Amendment, Illinois wouldn't do that. It wouldn't find that's abortion, are you saying that?
William A. Wenzel, III: No. No, Your Honor. I don't – I'm afraid I don't understand the question. We --
Thurgood Marshall: I mean to understand --
William A. Wenzel, III: -- would --
Thurgood Marshall: -- you on that (Inaudible)
William A. Wenzel, III: Without regard to the Hyde Amendment --
Thurgood Marshall: Right.
William A. Wenzel, III: I would – I have described what Illinois's obligations would be, not with Illinois has actually chosen, but what Illinois's obligations would be under Title XIX alone, without the Hyde Amendment in it.
Potter Stewart: And -- and your position is that just as a matter of statutory of federal law and preemptive federal law, that Illinois would have been quite free to enact this legislation in the absence of any Hyde Amendment?
William A. Wenzel, III: That is correct.
Potter Stewart: That's your position.
William A. Wenzel, III: As long as we didn't take that final step and unreasonably exclude funding for all abortions because I don't believe the State or any State could justify allowing maternal deaths. The --
John Paul Stevens: Mr. Wenzel, I wonder if – I just like to test that for a moment. If there is a choice that has to be made, when it's terribly difficult situation or either the fetus or the mother has to die, would you say it was irrational for the State to say the choice should be made in favor of the fetus?
William A. Wenzel, III: That's a very hard case and I'm not sure that it ever would actually come down to that --
John Paul Stevens: Is that the issue in the -- in the case as just been argued?
William A. Wenzel, III: The physician always has two patients that he's looking out for in pregnancy. I suppose there had been instances where in the third trimester, where there is a crisis situation, the physician must make a choice between saving the life of the woman or saving the fetus. But with --
John Paul Stevens: But let's say the State makes a choice. The State passed a law and says that in all those cases, the choice shall be made in favor of the fetus. Would that be irrational?
William A. Wenzel, III: I believe that maybe, Your Honor. Yes.
John Paul Stevens: Well, maybe or would be. Anything -- maybe.
William A. Wenzel, III: It -- it would be irrational, Your Honor. But what we have here --
John Paul Stevens: I think that's precisely the State interest on which the United States relies in the previous case.
Potter Stewart: Do you mean irrational and my Brother Rehnquist's sense of a – if you thought the other way, you belong to an insane asylum?
William A. Wenzel, III: If there – I'm sure that the numbers of the Illinois general assembly were aware that there were hard choices, but I think that we would never come down to that either-or situation because of the State's willingness to fund alternatives, number one. And that the State's interest in fetal life does not -- does not thereby necessarily denigrate the State's interest in maternal health. The State hopes by its policy to promote both of those interests. If I -- if there were no other questions, I would like to reserve some time for rebuttal.
Warren E. Burger: Very well, Mr. Wenzel. Mr. Rosenblum.
Victor G. Rosenblum: Mr. Chief Justice and may it please the Court. I represent the intervenors in both cases, but I am addressing myself to the Zbaraz case this morning and in the course of the limited time that I have, I hope to be able to address the nature of the right to privacy within the context of the Constitution and whether the Hyde Amendment infringes on that right especially through penalty analysis and I hope also to be able to address the appropriations issue which raises another theory of constitutional issue for this Court, that at a minimum would counsel restraint. With regard to the nature of the right to privacy, may I point out that the Court's use of the term, “a child birth” in the Maher decision was used interchangeably with the language of normal childbirth. So for example, at -- at page 474 of the U.S. Reports in -- in Maher, the Court had said that it implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. It is our position that the – that at least to that time that the use of childbirth and normal childbirth when used by the Court interchangeably and that in any event the -- the Court's ruling was with regard to their being no limitation on the authority of the State to make a value judgment favoring childbirth. Similarly, with regard to the -- the Maher test of the – the Maher test is – as we understand, was a test that used three words as the standard. The words of unduly, burdensome, interference, an adverb, an adjective and a noun and we would take the position that with all respect that the adverb is not violated, that the adjective is not violated and that the noun standing alone is not violated either, that there is indeed, no interference by the State or by Congress here with the defined right to privacy.
William H. Rehnquist: Mr. Rosenblum, let me post here the same question as I asked one of the earlier counsel about the Stanley versus Georgia and Reidel cases, which were decided within two or three years of each other. One held that there was a right to – and read in your own living room obscene material, anything else that you could get a hold of. Two or three years later, the same Court held that although you have that right, the Government could prevent shipment for that purpose and prevent you in effect, from getting a hold of some types of that literature.
Victor G. Rosenblum: We'd like the position, Mr. Justice Rehnquist, that that is the very essence of the difference between the Court's ruling in Roe and the Court's ruling in Maher and that – but it is --
William H. Rehnquist: But wasn't the Court's ruling in Roe based on privacy?
Victor G. Rosenblum: Yes -- no, the Court's -- the Court's ruling in Roe was indeed based upon privacy and that ruling in -- in Maher was based upon entitlement and there is a vast sea of difference between the issue of -- of privacy in Roe as it bears upon the exercise of a prohibition on the part of the State and the privacy issue as it bears upon the matter of entitlement, for there was indeed an impingement upon privacy as the Court found in Roe because there was prohibition in the case of Maher and in the present case. There is no prohibition upon the woman's right. There is no denial of a benefit on a basis that infringes the right to privacy in any way. There's no pledge of allegiance or statement of beliefs that's required to keep a job. There's no switching of political party or legions that is required in this instance. There is no fining, there is no retaliation. The woman is completely free to procure an abortion without recrimination of any kind and free to advocate abortion to the fullest that she may wish. And finally, there is no coercion in any sense of belief. There is in the fullest sense in the legislation involved here, the recognition on the part of the legislatures of that basic right to privacy in the classical Brandeis notion. The woman is indeed being left alone. She is in no different a position after the legislation than she was before the legislation with regard to the exercise of that right.
Potter Stewart: That indeed is her complaint. She's being left alone. She's not being --
Victor G. Rosenblum: Well, that –-
Potter Stewart: -- given any help.
Victor G. Rosenblum: -- but -- but that will be a 100% correlation with the original conception of the right to privacy, that is, it is the right to be left alone.
Potter Stewart: Because the original conception was – it was the tort and not -- not a constitutional invasion in the original seminal Brandeis article.
Victor G. Rosenblum: But even – even preceding, Mr. Justice Stewart to the constitutional determination. The test that was established by this Court for interference is that test of an unduly burdensome interference. So presumably, the Court would still allow even an interference and we would assert that in this instance, there is not even that. That there is the full regard and the full preservation of the woman's right to privacy in this instance, that penalty analysis consequently is peculiarly inappropriate in the type of a situation in which there is full respect of the exercise of that interest. Now, if the position that is advocated by the plaintiffs were to prevail here, the legislature would be reduced to the position of implementing a notion of neutral principles. There would be no purpose served in having election or there would be no purpose served in stimulating people to participate in those elections, quite to the contrary. The consequence would be that it would make no difference because anytime a legislature wished to exercise the initiative or make the value judgment to fund A, it would be required at the same time to fund non-A or anti-A and consequently to reduce the legislature to engaging in mere empty rituals. Now, I would like for a moment also to be able to address the question of the special problem involved in the appropriations issue. Now, this is really an appropriation's question, that with all due respect, our intervenor's view as significantly different from what the Court faced in the Califano against Westcott case. This is indeed a case in which Congress' appropriations power under --
Harry A. Blackmun: Mr. Rosenblum, it might take that the – the Solicitor General does not join you in this argument.
Victor G. Rosenblum: That is our understanding, Mr. Justice Blackmun. That the Solicitor General is – is representing the Secretary of -- of the HEW and our intervening clients have a -- an additional view on this subject.
Warren E. Burger: Before you – before we leave this, I -- did I understand you to say that the legislatures have the constitutional authority to make value judgments?
Victor G. Rosenblum: Yes, Mr. -- Mr. Chief Justice.
Warren E. Burger: And – and would you say that includes the -- the right or power? The power to make value judgments that are erroneous judgments in the minds of after receiving --
Victor G. Rosenblum: Yes, yes. I would --
Warren E. Burger: -- the authority of the people.
Victor G. Rosenblum: -- Mr. Chief Justice. And I believe furthermore, that this was a -- a subject that this Court assisted significantly the legislature with in the –- in its decision in Baker against Carr in its progeny. That it is to say that the -- that the Court helped the integrity of the legislative process by assuring the fairness of apportionment, a decision which has been effectively implemented and counsels the additional recognition that value judgments are essentially for the legislature to make, rather than for this Court to make with regard to crucial and often divisive issues of national policy.
Warren E. Burger: Who is supposed to correct the -- the wrong, the erroneous value judgment of the legislature?
Victor G. Rosenblum: The people through the elective process. A process which was significantly improved as I say, through the decisions following this Court's action in Baker against Carr, when of course there's is constitutional violation, then under the separation of power system, this Court must assert its authority. But we submit that under the circumstances of this case, that there is no such occasion which calls for the entered position of the Court's authority.
Byron R. White: Mr. Rosenblum, what was the case or controversy between your clients and the plaintiffs? Are you intervened -- these defendants?
Victor G. Rosenblum: We intervened as -- as defendants in the action, yes.
Byron R. White: And why should you have been allowed to intervene at all?
Victor G. Rosenblum: Well, sir, the – the intervention was granted by the –-
Byron R. White: I -- I understand --
Victor G. Rosenblum: -- the District Courts --
Byron R. White: -- it was granted, but i wondered --
Victor G. Rosenblum: Well, on the grounds in the cases of Dr. Williams and Dr. Diamond that they had an economic interest as physicians and as taxpayers in the case.
Byron R. White: As taxpayers?
Victor G. Rosenblum: And that –- well --
Byron R. White: You think that would have given him a standing in the case?
Victor G. Rosenblum: Well, they did – the emphasis, there was no -- there was no specification on the part of the Court as we recall of the precise reason --
Byron R. White: I know -- I know, but that's a question. It's always been around.
Victor G. Rosenblum: But the economic interest argument was the – was similar to, perhaps the mirror image of the economic interest argument that was made on behalf of the plaintiffs.
Byron R. White: Well, I just – maybe the mirror image, but you mean as just the –- just the opposite. What do you mean as I didn't have an economic interest.
Victor G. Rosenblum: No, that they did have an economic interest because as -- as the application (Voice Overlap) and they – and the pediatrician that they had a – they had an economic interest in the continuity of -- of childbirth.
Byron R. White: Right.
Victor G. Rosenblum: And the continuity of clients, who would be the product of such childbirth.
Byron R. White: And is that –- that was the approach in the District Court?
Victor G. Rosenblum: That's indeed our understanding.
Potter Stewart: And the abortion takes business on them.
Victor G. Rosenblum: Now, with regard to the -- the appropriation's question. The difference between this situation and the situation in Westcott is emphatically that in the Westcott case, there was agreement on the part of all the parties, that it was appropriate to reach the decision that was reached there. In this case (Voice Overlap) --
Potter Stewart: Mr. Rosenblum, two -- two questions are you talking. And let me ask them both, first of all, are you talking about the Congress or are you talking about the Illinois legislature? And secondly, are talking about remedy or are you talking about the constitutional (Voice Overlap) --
Victor G. Rosenblum: I'm talking here especially about the issue of remedy and I'm talking here especially about the issue of Congress.
Potter Stewart: Congress?
Victor G. Rosenblum: That in this respect --
Potter Stewart: And better remedy.
Victor G. Rosenblum: -- we're dealing -- yes.
Potter Stewart: Right.
Victor G. Rosenblum: That in this respect we are dealing with the appropriations power of the Congress and that while this Court does of course, as it showed in the Levitt case that it does has the power to declare an Appropriation Act unconstitutional. But nonetheless, even in the Levitt case, the Court did not order funding. The Court left that matter for determination by the Congress and the difference between the Westcott case and the present case is that in Westcott, there was agreement on part of all of the parties with regard to the funding issue and in this case there is clearly not such agreement and this would counsel additional restraint on the part of the Court in invoking its constitutional power.
Warren E. Burger: Wasn't there's something in the Levitt case to the effect such as the money were not otherwise provided, Levitt and his colleague could go to the Court to Claims and sue the Government. In other words there's no suggestion that in the Levitt case that Congress could be compelled to see that they were paid.
Victor G. Rosenblum: That's quite correct, Mr. Chief Justice. There was -- there was I believe scrupulous regard for the constitutional separation of powers on this issue and for the fact that Article 1, clause 9, subparagraph 7, reserves the funding power to the Congress of the United States.
Speaker: I understand a little Mr. , you said counsel restrained not that as in Westcott, extension could not be directed by this Court.
Victor G. Rosenblum: Well, we are saying that with that -- that the Court itself, does not have a funding power the restraint --
Speaker: It may not. I'm asking you, may we do what we did Westcott, in this case?
Victor G. Rosenblum: In this case --
Speaker: If we'll find the Hyde Amendment.
Victor G. Rosenblum: -- we would -- we would submit, no. That is you may find the -- the Hyde Amendment unconstitutional. But if the Hyde Amendment is found unconstitutionally effective, that is that there is -- there are no funds for abortion unless and until Congress appropriates those funds.
Speaker: That was a true in a Westcott situation, too. What I'm trying to get that is do you say constitutionally you may not do it? Or that -- I thought you said --
Victor G. Rosenblum: I'm saying, a --
Speaker: Were ought to exercise restraint and not do it.
Victor G. Rosenblum: I'm saying that in -- that in general restrain should be counseled here with regard to the finding of unconstitutionality on the part of Congress' action, but that even if there were to be a finding of unconstitutionality that the Court does indeed, not have the power to order the funding.
Speaker: Constitutionally, we do not have a power?
Victor G. Rosenblum: That would be position of the intervenors, Mr. Justice. That this -- that the matter of funding is reserved under the Constitution and our separation of power system to Congress.
Byron R. White: How about the -- how about a State? How about -- how about directing in state legislature?
Victor G. Rosenblum: Well, the -- the directing of the state legislature involves another -- another issue Mr. Justice White.
Byron R. White: Was that involved here?
Victor G. Rosenblum: That is well. It -- it could conceivably be involved here.
Byron R. White: Well, are you involving it? What was it?
Victor G. Rosenblum: No, because the -- the question here would come back to the -- the question that is more like the question the Steward Machine, about whether the State wishes to participate or not in the Social Security program. And if the State wishes to participate, it was indeed the -- the finding by the Court in Steward Machine, that there is no coercion upon the State and there's a vast difference of course, between coercion and motivation.
Byron R. White: Well, what if -- what if there's a declaration that the Illinois statute was unconstitutional?
Victor G. Rosenblum: If there were declaration that the Illinois statute was unconstitutional --
Byron R. White: What do we do then?
Victor G. Rosenblum: It would then be up to Illinois to decide whether it wished to continue in the Social Security program --
Byron R. White: Could we --
Victor G. Rosenblum: -- or not.
Byron R. White: -- could we attempt to -- could -- would we have the power to direct them or not?
Victor G. Rosenblum: Well, I think you reserve that question in the Usery case that -- that at that time you -- I believe in Footnote 17 --
Byron R. White: That may be, but --
Victor G. Rosenblum: -- reserved the question of whether --
Byron R. White: -- what's your position -- what's your submission on that question? Would -- would we have the power or not?
Victor G. Rosenblum: My -- my submission on the question, sir, would be that -- that it would be inappropriate to order the State to do so in that situation, because that would place in jeopardy the federal system.
Speaker: Well, it might be inappropriate, but do we have the power?
Victor G. Rosenblum: Well, I believe --
Speaker: (Voice Overlap) --
Victor G. Rosenblum: -- that you do have the power --
Speaker: All right.
Victor G. Rosenblum: -- with regard to the State. It is not a separation of powers issue as specifically spelled out under -- of the -- the first article dealing with the legislative power.
Warren E. Burger: Then, let me pursue that if the State having that order asserted on them, that command and the State does what President Jackson did many, many years ago. What can be done about it? How does a court force the state legislature to appropriate money?
Victor G. Rosenblum: Well, that -- that is of course the very essence of both the problem and the strength of our separation of power system. That the -- that the uses of -- of restraint within that system are expected to work out political compromises and that the uses of coercion have been rare within that system precisely because coercion itself, is alien to the success of the political system. And this is one more reason for the counseling of restraint even while the calling in the question of this Court's power to deal with the issue would be inappropriate.
Warren E. Burger: You view the constitutional issues in the State case and the prior case as the same or different assumption?
Victor G. Rosenblum: I view the -- the constitutional issues in the State case and in the prior case as having great similarities, Mr. Chief Justice. But as having some differences by virtue of the difference between the nature of the system of separation of powers and the system of federalism, these were problems that were alluded to in the Usery case and I believe the Court reserved judgment on the issue of the impact of funding on the application of Usery.
Warren E. Burger: Very well.
William H. Rehnquist: Mr. Rosenblum, how about the language in Article 1 of the Constitution that no money shall be drawn from the public treasury, save in exercise of the act -- execution of an act of Congress. I'm -- I'm --
Victor G. Rosenblum: Well -- well, that's what I was relying on, Mr. Justice Rehnquist, for the -- for the -- the special point about the sanctity of the appropriations power of Congress and the inappropriateness in response to my -- in response to the question of Mr. Justice Brennan, the inappropriateness constitutionally of the Court's making a funding decision in this matter.
John Paul Stevens: Mr. Rosenblum, before you sit down there is one -- one point of clarification, you have argued that the unduly burdens of interference test is not met that there's no interference whatsoever here. Are you therefore arguing that there really is no call for any equal protection analysis when one differentiates between different kinds medically necessary service that there's does even have to be in irrational basis?
Victor G. Rosenblum: No, there is a call for equal protection analysis and there is a call for the application of the rational basis test. But as this Court pointed out in the (Inaudible) case and it's per curiam decision, the rational basis test is a -- is a more relaxed test. And under that relaxed test of rationality, what is looked for first is the -- the rational decision which the Court found in Roe to -- to be a -- at least a rational matter for concern for the life of the fetus. Consequently, if there is a rational relationship between that and the legitimate state interest that the State has in the preservation of the life of the fetus, that that should be sufficient to meet the rational relationship test under the (Inaudible) standard. Thank you.
Warren E. Burger: Very well. Mr. Solicitor General.
Wade H. McCree, Jr.: Mr. Chief Justice and may it please the Court. The -- the position of the United States on this matter is a limited one at this point, because historical events have caught up with us. We appear principally here because on remand from the Court of Appeals, the District Court was instructed to consider the constitutionality of the Hyde Amendments which had not been drawn in the controversy before. The plaintiffs did not claim that they were harmed at all by reason of the Hyde Amendment and the District Court obedient to the mandate, considered it. But nobody was contending that it impinged on any right of his. And it's been our position in this matter that there is no case or controversy of -- within the meaning of Article III and because of that reason, we think that the appropriate step for this Court today, is to vacate the judgment of the District Court to the extent that it declares a Hyde Amendment unconstitutional. And we would respectfully ask the Court to do that, if the Court agrees with us that there is no case or controversy and then I would like to reserve the rest of the time that's been allotted to the Government, in case some other interest appears in the course of the argument. Thank you.
Potter Stewart: You don't -- Mr. Solicitor General, make any argument that the Court does not have jurisdiction by reason of --
Wade H. McCree, Jr.: We do not make that argument. No, we do not. That --
Byron R. White: And --
Wade H. McCree, Jr.: -- this Court has jurisdiction.
Byron R. White: And if you suggest I take it in your brief that we would still entertain and reach the question about the state statute.
Wade H. McCree, Jr.: We thought that the Court certainly can and we suggested that it might in the discretion do so. Thank you.
Warren E. Burger: Very well. Mr. Bennett.
Robert W. Bennett: Mr. Chief Justice and may it please the Court. Unlike the Solicitor General, appellant, Miller, and the intervening appellants, crossover the central fact established by the record, both appellant, Miller, and the intervenors suggest in there brief that -- nothing much is at stake here. To read their briefs and those of their amici and to listen to their arguments, one would conclude that pregnancy for the diabetic, the cancer sufferer, for women with hypertension, with sickle cell decease, with severe varicosities poses no unusual problem. All we are dealing with here to listen to them is with women who desire an abortion for convenience and with doctors who simply like to abort. The record reveals a very different picture, one of multiple diseases and conditions posing very serious, but not immanently life-threatening health problems for the pregnant woman, where the option of an early abortion is medically essential. Delay in abortion rapidly increases risk. The record reveals that withdrawing the medical option of abortion will hit poor women and indigent teenagers especially hard.
William H. Rehnquist: Mr. Bennett, when you say the record, I take it, you mean the record before the District Court?
Robert W. Bennett: That is correct, Your Honor.
William H. Rehnquist: Supposing that the -- either the Congress or the Illinois legislature had -- had legislative hearings on this and found conflicting evidence, some of it supporting of evidence found in the District Court in the Northern District of Illinois. Some of it exactly contrary and the Committee report a bill of -- which was -- was the Hyde Amendment. Do you think that the Northern District of Illinois could then hold its own hearing, hear these same witnesses and come to a different conclusion as to whether or not, the bill was rational or whether or not, one witness was to believe, to be believed and the other, not?
Robert W. Bennett: Under the constitutional test, I would assume that the legislature would be given the benefit of serious factual doubts and that that would be the duty of the District Court. Under the statutory standard, the federal statute entrusts those judgments to professional standard review organizations. But I would point out that we have no such question here. There is absolutely no indication that the legislature had any health concern, what were health question in mind, when it pass the statute, it did.
William H. Rehnquist: Well, does it have to appear on the face of some sort of piece of paper that they have a health concern in mind in order to say that did?
Robert W. Bennett: No, it doesn't have to appear on the face, but then, evidence about whether there was a plausible argument for such a health interest would be admissible in the District Court. In this case, we do have paper and the State is very clear about the interest it was serving, it was attempting to stop abortions and it cared not about health or life of pregnant women.
William H. Rehnquist: Well, supposing that the legislators have gone back to there various constituencies and talked to the people who voted for or against the person who represent that district and acquired information in that manner, would you say that was totally irrelevant?
Robert W. Bennett: No, it was not, Your Honor, but the very process of constitutional adjudication unless facts are to be entirely relevant -- irrelevant to constitutional adjudication must rely upon the adducing of factual evidence in a court. As I said, it -- if there is a debatable issue, the legislature would clearly have the benefit of the doubt. Here, there is no debatable issue.
Warren E. Burger: Do you suggest that there is a monolith -- a monolithic basic set of reasons by all the members of the legislature, who -- who voted this law?
Robert W. Bennett: Well, I --
Warren E. Burger: They are doing it for the same reasons?
Robert W. Bennett: I would -- I would never make such -- such sort of cosmic judgment. But here we do have a statement by the legislature itself. In legislation passed 1975 and again in 1979, still on the books, embraced by the attorney for the State in his brief as a statement of the State's interest in as he puts it, fetal life. And that is in the legislation, it is quoted in his brief and in ours. The legislature makes it clear that what it was doing was trying to effectuate the judgment that life begins at -- at conception and that the fetus has the right to life from the moment of conception. On the merits, appellees rely on a federal statutory and the federal constitutional argument that Illinois's withdrawal of Medicaid funding for medically necessary abortions, is illegal. The statutory argument has two aspects, first, the State's obligation under Title XIX, the medicate provisions of the Social Security Act. And if -- and second, the effect if any, of the annual appropriations measures that have been referred to here as the Hyde Amendments, Smith and Jones amendments, occasionally. On the Title XIX question, the Court of Appeals concluded that Illinois was required to provide funding for all medically necessary abortions under its medical assistance programs. A dozen other lower courts have reached essentially the same conclusion. A State Medicaid plan is required by Title XIX, to provide for the inclusion of at least the first five services included in Section 1396d (a).
Byron R. White: Are -- are you -- you're -- you're addressing yourself to the -- the decision of the Court Appeals on -- or when it -- ordered a remand?
Robert W. Bennett: Your Honors, we urge that a statutory ground here is available to the Court as an alternative ground for decision. I will simply characterize each --
Byron R. White: Right.
Robert W. Bennett: -- where is that statutory ground came from.
Byron R. White: Yes, yes. But it -- it isn't something that we've granted certiorari on it. Something -- you're -- you're just urging that as an appellee to support the judgment.
Robert W. Bennett: That is correct. As I was -- as I was saying, the State Medicaid plan used it or the -- the federal Medicaid statute uses mandatory language to express a minimal State obligation. That to provide at least the first five services listed in Section 1396d (a). Those mandatory services include physician services, inpatient and outpatient hospital services and early and periodic screening for children. All the services that is necessary to provide medically necessary abortions.
William H. Rehnquist: Well, how did -- but isn't the Hyde Amendment a much more specific statutory enactment than the one you've referred to?
Robert W. Bennett: The Hyde Amendment is a very specific statutory amendment. Our argument with regard to it is that it does precisely what its words specifically say, that is to say, restrict the use of federal funds and say nothing about the State's obligation under Title XIX.
William H. Rehnquist: Well, does that really make sense?
Robert W. Bennett: Well, I think it makes a lot of sense. Of course there are multiple opinions from this Court and others that the duty of a court is to follow the plain meaning of statutory language. There is an exception stated to that and that is when there would be absurd result produced by following that language, but I don't think there's any absurd result here. Congress was acting in a particular context. The context of appropriations and it took a particular action and its words are very clear about what it intended to bring about by that action. In -- in those circumstances, we argue that there really is no need to look to legislative history at all in order to determine what affect the Hyde Amendment has on the State's Title XIX obligation.
Potter Stewart: Your position, Mr. Bennett, then is that Title XIX, in the absence of any Hyde Amendment, clearly requires the State to participate in the funding of therapeutic abortions --
Robert W. Bennett: Yes, that is our position, Your Honor.
Potter Stewart: -- and -- and that even the after the Hyde Amendment which by its terms, simply limited the appropriation of federal funds, Title XIX continued to impose such a requirement.
Robert W. Bennett: That is correct, Your Honor.
William H. Rehnquist: What do you do --
William J. Brennan, Jr.: (Voice Overlap) court (Inaudible) with you on that?
Potter Stewart: Yes.
Robert W. Bennett: Yes, there have been --
William H. Rehnquist: What do you do with --
Robert W. Bennett: -- a couple of lower courts that have.
William H. Rehnquist: Well, what do you do with Dickerson case in 310 U.S.?
Robert W. Bennett: Oh -- oh, yes, I do recall the Dickerson case. Actually, Your Honor, it seems to me that there, the intent to repeal was a manifest, the intent to impliedly amend a statute. Here we have examples. We have cited a number in our brief. The Solicitor General has offered some others, in which there is not the assumed congruence between the funding formula under this cooperative federal state programs and underlying substantive obligations. Congressman Hyde himself, in the course of the debates, bemoaned on occasion, the fact that he couldn't get the substantive questions constitutional amendments, the Social Security Act, before Congress. And so, the Congress was acting in a particular context that of appropriations. It's -- if -- it is appropriate to look at the legislative history in order to determine what Congress accomplished by passing words that are quite clear, that legislative history really reinforces the conclusion we are urging. What members of Congress most frequently said was that they are restrict -- restricting the use of federal funds. Congress knows how to amend the Social Security Act if it wants to. The Bowman Amendment which has recently passed the House and is now in the Senate, an amendment to the Child Health Assurance Act, says and I quote, “Nothing in Title XIX shall be construed to require any State to -- funds to be used to pay for any abortion.” The Hyde Amendment could have said that, but it did not and this Court's quite recent decision in TVA against Hill. Counsel strongly against finding an implied amendment of an underlying substantive statute brought about by an appropriations act. The Equal Protection Clause commands the same result. Our claim here is depicted by the appellants as a claim for affirmative subsidy of the exercise of a fundamental right. But the appellees, the plaintiffs here are making no claim for an affirmative subsidy for the exercise of a fundamental right. Their claim is not to be discriminated against in violation of the Equal Protection Clause and the Equal Protection Clause applies to state medical care statutes just as much as it applies to any other statute.
Potter Stewart: And now you're talking not about the federal statute but about the state statute?
Robert W. Bennett: That is correct, Your Honor.
Warren E. Burger: We'll resume there at 1 o'clock, counsel.


Warren E. Burger: -- arguments next in 71-1476, Gaffney against Cummings. Mr. Dixon you may proceed.
Robert G. Dixon, Jr.: Mr. Chief Justice, may it please the Court. This case is here on direct appeal from a three-judge District Court in Connecticut which invalidated the official state legislative enforcement plan. We appear here in defense of that official state plan. The plan was devised by a bipartisan board of three members including a tie-breaker under the state constitution which constitution thereby tries to incorporate an anti-gerrymandering spirit in the very reprocess of the apportionment activity. The plan of the board was subjected to litigation promptly in both state and federal court. The federal court denied a plea of extension and on April 4, 1972, he did invalidate that plan. An appeal was promptly taken and also a submission of a motion for a stay order, the motion was referred by Mr. Justice Marshall to the Court and on June 12, 1972, this Court stayed the adverse District Court judgment. That had two effects. One was to bar implementation of a Master’s plan which had been under preparation, under now stayed judgment and more importantly perhaps and also on the way for conducting the 1972 election of state legislators in Connecticut under the official state plan, that was done. Along the way, there was a supplementary mandamus action in state court to clarify one or two clerical errors. The claim was reviewed by the state court and the State Supreme Court found that no constitutional impediment under the state constitution to use of the state plan. The large question therefore here is whether Connecticut can continue the use of this official state reinforcement plan, gerrymander of the 1970 decade. In a more precise fashion, the federal issues are three, population equality, justification of deviations as such be needed and the plaintiff-appellees’ allegations of gerrymandering. Turning first to the population issue, we assert, and most strongly assert that trivial deviations of the sort in Connecticut and I’ll mention those in a second, trivial deviations present no prima facie case. Therefore, the plan would remain presumptively constitutional unless plaintiff-appellees could introduce proof of a non-population nature of discrimination. We think that a concept of a presumptive constitutionality concept keyed to a lack of a prima facie case, if there are trivial deviations is implicit in Swann against Adams, and was not settled in Swann against Adams and is implicit in the dissented opinions in Kirkpatrick against Preisler. What are these Connecticut deviations which we find so trivial? In percentage terms, the most deviant district from ideal in the Connecticut Senate deviates by only 0.9%. For the Lower House, most deviant district from ideal deviates by only 3.9%. Over these percentage terms, must be put in a context of the size of the district being created to become meaningful and likewise the available census data we look to the census data. We find that the most deviant district in either house in Connecticut deviates from ideal by fewer than 800 census-persons, for the Lower House, 789, for the Senate 787. You might well ask if the population deviation in real census terms is identical virtually why a percentage -- or the percentages is so different, the answer is in the size of the districts. Connecticut has 36 State Senate seats, average population, 84,000 roughly, 800 population deviants, census body is deviant on that base because there’s only 0.9% deviation. Connecticut has 151 assembly districts, average population about 20,000 on that base the same trivial 800 person deviation, gives you only a -- since they raise the percent deviation to a 3.9%. In terms of the census data which was the building unit for the apportionment board of the 2,700 census units available to the board, 88% in exceed 400 in census population and yet the average deviation in Connecticut in either House is under 400. By contrast, Howell against Mahan -- Mahan against Howell last week, excuse me, the most deviant district from ideal was I believe was about 4,400. The figures of the Connecticut type, we suggest are really on target in the Reynolds against Sims sense of substantial equality or of not -- or in showing that the vote of each voter in a state, be approximate or equal to that of any other on target and therefore constitute no dilution of voting power. Hence we suggest that this case could fit the general principle of treating trivial deviations of this sort as constituting no prima facie case of dilution of voting power as being presumptively constitutional. More precisely and we’ve suggest this for Connecticut and not for the nation necessarily about a rule if we divide as follows for Connecticut making more precise this presumptive constitutionality concept. It could run this way that where the maximum deviation in census population terms, actual census bodies in a district, in most deviant district, in a state plan is less than the average population of the census units being constructed, that plan should be presumptively constitutional. And the average population of the census units in Connecticut is 1,100, the median unit, census unit is 1,000. And as I said the most deviant actual district from ideal is only 800. Without such a presumptive constitutionality rule keyed to lack of showing a prima facie case with trivial deviations of this sort, we feel the Courts remain not only in the business of stirring up the political thicket, that plaintiff instigation that may take up residence in a permanent basis in the political thicket. Why do we say this? Because plaintiffs can always show a slightly less deviant plan then laboriously constructed official state plan at any given level of the percentage deviation. With a hand calculator, you could device hundreds of plans, each one though having a quite different political effect because no district line is neutral. Lower courts have tended to follow this approach in the past. In fact we’re having a past and we’re still today to an extent a one body better rule. That is plaintiff’s comment with the plan often to the last minute at trial perhaps showing their own self serving plan, just no statewide input in it, showing it is one body better so to speak than the state plan and if it -- that the election is immanent and the state cannot justify or hasn’t built under the -- its process, the state plan goes down the drain. Now, Mahan against Howell last week, that does not solve this problem of avoiding casual invalidations on a one body better rule because the state which has tried to be directly on target and does not crank into its process any corollary rational state purposes than an attempt to be directly on target in population could not qualify to utilize the Mahan against Howell justifications process. However with -- what we do -- I refer to here is a presumptive constitutionality rule, keyed a very low deviations of this sort, we will achieve some legislative certainty, the bodies can apportion without the sense of futility as often been the case in the last several years, litigation have been massive as we all know even after 1970 census. As far as courts are concerned of this approach a finding that there is no prima facie case with low deviations of this sort, trivial deviations would flush out many petty cases. Reserved court time for those cases for justification does seem needed because the size of the deviation or for the more complex issue of gerrymandering if the court proceeds in that direction.
Potter Stewart: Mr. Dixon, do I understand your argument to be just -- you told us a couple of minutes ago that you cannot rely on the Virginia cases decided last week --
Robert G. Dixon, Jr.: No. Excuse me, I said --
Potter Stewart: For the very reason --
Robert G. Dixon, Jr.: (Voice Overlap) --
Potter Stewart: For just a moment, in fact, so I can ask my question, so I’ll be sure understand it.
Robert G. Dixon, Jr.: I apologize.
Potter Stewart: You cannot rely on it for the very reason that you have in order to approach to a maximum numerical proportionality, you have disregarded state boundaries and town boundaries and so on, is that it? And therefore you can’t rationalize the tiny deviations that remain in terms of any legitimate state interest as Virginia could in respecting local political boundaries, is that your argument or just I misunderstand it?
Robert G. Dixon, Jr.: Mr. Justice Stewart, my point was for -- was made in general terms that a state might have only a straight population purpose, that is not Connecticut. Connecticut has three purposes to be served in its reapportionment process. And we’re suggesting that we would not reach the need to justify, shouldn’t have reached the need to justify until it is first determined that the deviations of a given plan and I’m not talking about Connecticut with its trivial deviations, are high enough to warrant constitutional concern.
Potter Stewart: Alright.
Robert G. Dixon, Jr.: We fell that if the deviations are smaller, not when deviations are smaller than the census average population -- the average population census unit is being used that it is really on target and should be declared constitutional.
Byron R. White: Without getting to any figures, without getting any reasons?
Robert G. Dixon, Jr.: Without getting to it, the process justification is correct Mr. Justice White.
Potter Stewart: Well, the point is though, the more a state in order to approach numerical perfection disregards its other state interest unless it can justify any tiny deviations in terms of any state interest, isn’t that correct, because it has disregarded them?
Robert G. Dixon, Jr.: That would depend upon Mr. Justice Stewart, depend upon the rational state policy at issue and I think that is an next logical consideration for the Connecticut case. We have sought not merely to achieve population equality directly on target as a pre-eminent goal in order to serve the overall purpose of fair and defect in representation. I mentioned several times Reynolds against Sims. We have also added two corollary policies which we think would support this plan under the decision of Mahan against Howell last week. In short, if we do not prevail on a theory of presumptive constitutionality because deviations are very trivial, then there are the following justifications to be made. The Apportionment Board seeking close population equality also had two corollary policies, a Connecticut town policy and a policy of political balance or fairness which I’ll define in just a moment. Now turning first to the town policy which is the analogue of the no-county line policy in Mahan against Howell last week, we find that where Virginia could honor that fully and still stay inside a top to bottom variation of 16%. The Connecticut sought to honor its town -- its no-town line cut fully for the Lower House, it does not apply to the Senate but for the Lower House. The population deviations would reach a 111% if we bring forth the 1965 plan, and cut no-town lines and test it out under the 1970 census. 110%, 11% is way beyond Howell against Mahan even if we think a no-cut policy is good. We do think that -- an important to note, the purposes lying behind is no local division line cuts in order to see if they can be served by some other premises. Mahan against Howell last week, speaking of the Virginia county policy, analogous to the no-cut policy in Connecticut, said that it served the purpose of furthering a political voice for the counties. We see in this a judicial recognition of community of interest factor in representation that also spoke of the no-cut policy asserting an important anti-gerrymandering function. We see in this a judicial recognition of the danger of blind or invidious line drawing. The apportionment board in Connecticut honored the town -- the no town line cut policy substantially. Approximate 3/4 for the line of the towns are not cut. The board cut 47 towns out of 169. It then -- seeking to serve -- preserve the substance if not the latter on all cut policy and the purposes of political voice and of anti-gerrymandering used a complementary policy of political fairness or political balance which requires some definition. This political balance or political fairness policy but that is found. The board with knowledge of public voting patterns in past elections tried to divide equal population districts which would and knowing out of hope of avoiding the minority election, it actually occurred in 1970 in Connecticut but would actually -- of our hope of providing each party with a seat gain, the legislature approximately proportionate to its percent or total of -- percent total of popular vote. Now a functional trend -- you’ll see this is being a vital arrogant, anti-gerrymandering principle and an attempt to safeguard a political opportunity for effective political action by all of the voters. The essence of this political fairness or political balance principle uses a corollary of principle where they attempt to cut no town lines and they only cut 3/4, I know it would become -- what they felt with the on target in equality terms. The assessment says, “A direct turning away from a gerrymandering purpose, one other result from the plan that was achieved.” We think that in regarding 1966 to 1970 election data, the plan is conceitedly fair, demonstrably so. Regarding 1972, we would suggest that it is also demonstrably fair, all class before the Court.District Court, would’ve achieved somewhat the same outcome in 1972 under all plans, it would’ve been an excess seat gained for Republican Party. Why? Because that was a landslide election here in Connecticut and past election data in Connecticut and indeed a civil law of political science indicates that when you have a landslide election, the seat gained runs substantially ahead of the percent of the -- of vote cast. And also, the charts on this point in our reply brief indicate that the factor of (Inaudible) seats is endemic and all the plans before the District Court and the -- is no different under the official state plan than other plans.
Byron R. White: Do you find any difference here if they had followed a plan of political unfairness? Assume all the districts were right on target as you put it number wise, population wise, the only thing is that they did follow a policy of maximizing either Republican or Democratic representation but I -- drawing it, put in the districts in places where one party or the other would benefit the most, would you reach the same result or?
Robert G. Dixon, Jr.: Mr. Justice White, we find the -- we would find in that instance that we have -- presented to us that issue of gerrymandering whether or not with the equality satisfied, there were nevertheless because of district pattern as mentioned in Fortson against Dorsey, a substantial submergence of a political arrangement within the population which had bring -- which would then --
Byron R. White: Do -- you would say it turns from, into a fair to unfair when each -- either party’s representation is not maximized if you could draw equally numbered districts in a way that one -- that one party would have more or less or what? Both parties together have to have the maximum number?
Robert G. Dixon, Jr.: No. Mr. Justice White, our proposition would be this that what is -- if a state does not violate any constitutional requirement of the federal constitution by seeking a policy of fairness along with a policy of population equality.
Byron R. White: Now but fairness means --
Robert G. Dixon, Jr.: And by political fairness in this sense we do mean something called political balance does require consulting past election data and testing out various plans possible to see if they would become -- would appear very unfair under no bordering pattern (Voice Overlap) --
Potter Stewart: Oh, you're talking about benevolent gerrymandering, aren’t you?
Robert G. Dixon, Jr.: We could use that term not required by this Court --
Potter Stewart: And the courts never held that the ordinary kind of gerrymandering as a justiciable question or any business of ours in any of these reapportionment cases so far but to whatever the ultimate answer to that question might be, your point is that benevolent gerrymandering at least is neutral that it doesn’t make it otherwise a valid plan invalid, is that it?
Robert G. Dixon, Jr.: Yes Mr. Justice Stewart, that is precisely our position here (Voice Overlap) --
Warren E. Burger: I should think you'd take some -- I should think you'd take some comfort from the arguments in the preceding cases where at least I understood them to say that if it isn’t politically fair, it's unconstitutional, that would -- that argument is the one -- you would think supports your position?
Robert G. Dixon, Jr.: Our position on that is that that is a mater for plaintiff proof, for plaintiff attack on a state plan and that because gerrymandering of an invidious sort is not clearly subject to close policing by this Court yet an attempt to be fair should not be questionable either. My last point as to mention the plaintiff-appellee's gerrymandering argument, they do allege that the plan is a gerrymander of an invidious sense that we see in this record not one iota of proof regarding the standards suggested in Whitcomb against Chavis following on that from Fortson against Dorsey for attacks on plans on an impact basis rather than a population basis. This Court said in Whitcomb that when that kind of claim is made there must a showing that the districts were conceded or operated as purposeful devices to further discrimination, racial economic, you can say a fortiori political fits that that principle and the proof on Whitcomb must be real life proof of impact on -- in view of voting power. So in short we suggest that at one level we have a plan with deviation, somewhat trivial that should be deemed to be presumptively constitutional, absent a gerrymandering type proof. That is not thought to be the case, not figured enough and we’ll suggest too rational state policy to justify the deviations preserving as many town lines as possible or about 3/4 and also making a good faith attempt to avoid unfairness. And last we find no evidence at all here of any overt invidious gerrymandering of the sort which this Court has spoken of in Whitcomb against Chavis in similar cases. May it please the Court, I like to reserve the remainder of my time for rebuttal.
Warren E. Burger: Very well. Mr. Satter.
Robert A. Satter: Mr. Chief Justice, may it please the Court. This Court scored a stunning six sets in the one man one vote doctrine in the cases which enunciated that doctrine. In the space of a few years, this Court has come close to achieving or leading this country to achieve the fundamental purpose of that doctrine and has thereby enhanced a fundamental civil right, namely the right of each individual citizen to an equally weighted vote. And as this Court said in Reynolds to the extent that a citizen -- the citizens’ right to vote is debased, he is that much less a citizen. And so these one man one vote cases are important and they put us on a high road toward improving the quality of our democracy and the passion and the high hopes with which this Court started that journey with Baker against Karr should not play and particularly it should not play in light of how close we are to an ultimate success.
Warren E. Burger: Do you think these principles have the same validity whether people do or do not vote, whether 30% of the people vote, 50% or 75%?
Robert A. Satter: I think they have that same principle, yes. Whether people do or do not vote doesn’t change the quality of the -- change the necessity of having equally weighted votes or giving people the opportunity to be in districts where they have an equal voice with every other person. Yes sir.
Warren E. Burger: If only 30% of the people in a whole in an entire district actually vote, then of course you have no assurance that to that result represents the majority view, do you?
Robert A. Satter: Of course you don’t. I might say in Connecticut that the history is that we vote close to 80% in many of our elections and in fact some of our presidential elections, we have voted close to 90% and that’s a remarkable fact but it’s true. Now why do I say that we have come so close to success in these one man one vote doc -- in these one man one vote cases. Because the facts are, that in 53% of the states, the extent of a deviation is 5% or less. The range of deviation is 5% or less in their -- in the reapportionment of their Senate and 47 -- and in 47% of the states, the range of deviation is 5% or less in the House, in their Lower House and by range of deviation I mean plus or minus to and a half percent. Now the states did not come to that voluntarily. The states were not anxious to accord this extent of equality to their citizens’ tree on their own free will. Reapportionment is a very painful process. I know it because I have been in the state legislature and I have been in the state legislature in which I was required to reapportion myself and it is a very painful process. It is a painful process whether the legislators are doing it or whether others are doing it. And the concern for the equality of the vote, of the individual citizen on the part of the reapportioners if left to their own devices is very slight, except when this Court has required them to do so.
Potter Stewart: Mr. Satter, what is your -- what are your figures as to the deviation here, in this case?
Robert A. Satter: We submitted a plan of deviation of 2.16%.
Potter Stewart: No, as to the deviation that was struck down by the District Court?
Robert A. Satter: 7.8%, the range of deviation is 7.8% Your Honor.
Potter Stewart: The range, meaning what, the maximum?
Robert A. Satter: No, the range from the highest to the lowest.
Potter Stewart: Now what does that mean?
Robert A. Satter: That means that it was plus 3.9 and approximately minus 3.9 Your Honor.
Potter Stewart: So you don’t disagree with the figures?
Robert A. Satter: Oh, no. We don’t disagree with the figures at all.
Potter Stewart: Well, many in the cases, the parties can’t seem to get together on the figures.
Robert A. Satter: No Your Honor. We recognize that the range of deviation is 7.8%.
Potter Stewart: From a maximum of 3.93 to a minimum of 3.9 in percentage points?
Robert A. Satter: Yes.
Warren E. Burger: That was for the House?
Robert A. Satter: That was to the House, yes. We make no issue whatever in this respect.
Warren E. Burger: The issue is not here?
Robert A. Satter: It’s not here. We obviously recognize --
Potter Stewart: And the average, do you agree that for all the districts and the House, that’s 1.9 and the median 1.8?
Robert A. Satter: I think the figures that are in the -- in a stipulation are correct, yes and that’s that I think the Court found.
Potter Stewart: At least we don’t have that kind of an argument in this case?
Robert A. Satter: Not have that argument. And so, may it please the Court, the point I am making is that the process is a painful one that the rights of the individual citizen are only going to be protected by a Court having a very firm and severe stand on the requirement to achieve equality. And that thus the states have to be ordered first, to reapportion and Baker against Karr made that issue sufficiently litigable for them to realize they had to and secondly that they had to achieve equality. The Reynolds case established the standard of equality as equal, as practicable. There is no question that it had some caveats in it. It’s expressly stated that absolute maximum exactness or precision was not required. And taking the very tolerant approach that appeared to be implicit in the Reynolds decision, the Courts replied and in the period after 1964, the pattern of approved deviation in state legislative cases ranged substantially above 15%. And in fact, our record shows that prior to 1969, 88% of our states had deviations of over 15% with respect to their Senate and 96% had deviations with respect to their House of over 15%. And then came Kirkpatrick, fortuitously in 1969, prior to the 1970 census and prior to the time when the vast majority of the states had to reapportion and the Kirkpatrick decision had two parts to it. The first part was that the standard of equality was going to be strict as equal as practicable manner that the states had to seek to achieve precise mathematical equality and they were to be permitted only those deviations in which the variations were unavoidable. And the second aspect of it was that virtually all excuses or justifications at least as applied to congressional reapportionment, were going to be ruled out. And the states listened to that and they knew that this Court meant what it was saying and they felt that they had to apply those rules in the Kirkpatrick case to their own state legislative reapportionment. They were very attuned as all reapportioning authorities are to the nuisances of the language of this Court’s opinion where they can find a escape hole, where they can interpret an out, they will do so because achieving equality is not a high priority on the part of reapportioners. They have other purposes. They do not have purpose unless a Court tells them that they have to have it, but they read Kirkpatrick to say it applies to us and we’re going to listen to it and we’re going to apply it and that’s why we have 53% of the states keeping within a deviation of 5% or less.
Thurgood Marshall: How many states is 53%?
Potter Stewart: 26.
Robert A. Satter: How many states? Your Honor its 53% is all but it -- what?
Potter Stewart: Some are between 26 and 27 states.
Robert A. Satter: Right. Thank you Your Honor. And what this has demonstrated is and I know this line has been said to you so many times it’s a frightful cliché that the life of the law is not logic but experience and experience has proven the wisdom of Justice Brennan’s statement in Kirkpatrick that a state legislature which tries can achieve complete numerical equality among all of the states districts. And this is the answer to the -- this Court's carping critics who have run their hands over an over insistence upon equality among the districts. That is an over insistence upon achieving an equally weighted vote for our citizens as if we can ever have an over insistence upon perpetuating valid and important constitutional rights and that was the purpose --
Warren E. Burger: We’ll resume at this point in the morning counsel.
Robert A. Satter: Yes sir.