Roe v Wade
I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions. It was as if they were engaged in a holding action. Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement. That explained a lot about the tentativeness of the Court in taking a firm position.
As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic. To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic. Batten down the hatches. The fear of the change borders on the irrational. Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.
Will the seating of a new justice bring some changes to Constitutional Jurisprudence? Sure. Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.
Does it spell the end? Of course not.
I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses. I’ll get back to the new cases in the coming weeks. Lots of good stuff there, but it can wait a little while.
Two issues will receive a lot of discussion. The first is Gay Rights. Justice Kennedy penned a series of leading decisions in the area. His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court. More 5-4 decisions.
I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.
Let me start with one simple proposition. Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion. The Supreme Court doesn’t criminalize anything. Under our Federalist system, matters such as abortion traditionally were the province of the States. The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution. That is their role. While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal. It would mean that under our federalist system the issue would fall back to the states. And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:
“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”
Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.
I’ve written in prior blogs about the origins of the Right to Privacy. Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments. Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate. This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.
In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials. In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials. Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples. Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
The next year Roe v Wade came along. It was a difficult decision for the justices. It was actually heard once, including oral argument and an opinion was written and circulated. But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written. There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.
One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon. And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon. Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.
Roe v Wade was a natural development in the law of the Right to Privacy. But it is also important to realize what the Roe v Wade rule is and where the fight has actually been. At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation. The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.
In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis. The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.
Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis. She knew the science was wrong. The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb. And she rightly predicted that the line would continue to be pushed back as science and understanding improve.
She wrote the opinion in Planned Parenthood v Casey in 1992. And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade. She changed the test. Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.” But she also made it clear that Roe v Wade had established a woman’s right to choose.
O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade. It is a rule of law and a component of liberty we cannot renounce.”
These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.
The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services. For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions. That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.
In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”
Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point. Roe v Wade in 1973 was decided 7 to 2. Casey in 1992 was decided 5 to 4. Whole Women’s health in 2016 was decided 5 to 4. Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.
It would seem to indicate a change was very possible. However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld. That central holding is not going to change.