So tomorrow my Con Law class discusses the Court's abortion jurisprudence. I figured I'd share with you my thoughts for two reasons: 1) to figure out what exactly those thoughts are, and 2) to refine my thought with your thoughts.
But first, a few preliminary thoughts. In Jewish law, abortion is easily permitted for the first thirty days of a pregnancy (it is regarded as "mere water," the Rabbis tell us). After that first thirty days, abortion is only permitted to protect the health of the mother. It is required to protect her life. The rabbis justify that requirement by weighing the potential life against the known life, and coming down on the side of that which is known versus the mere potential. The rabbi, in determining whether an abortion is halakhically forbidden, permitted, or required, is expected to consult heavily with the woman's medical professionals. N.B.: In all cases, the rabbi makes a halakhic determination based on HIS understanding of the Law. The woman is free to disregard his determination, if her understanding of the Law is different.
So that's where I'm coming from.
That said, Jewish law does not control American courts. Thank G-d. So, let us examine the Court's decisions in Roe and Casey.
Roe is a meandering decision that wanders all over the landscape. The Court identifies the personal interest of the woman in Justice Douglas' "penumbral rights." That is an entirely different can of worms that I do not find compelling for reasons I can't fully articulate yet, but let it stand for the moment. The point is, the Court finds a "fundamental personal liberty" in the power to bear or terminate a pregnancy, and thus the State's efforts to regulate demand strict scrutiny.
Strict scrutiny, for our non-lawyers, involves two prongs: 1) the State must be protecting a compelling State interest and 2) the State's action must be the least restrictive alternative available.
There's not a lot of action on the "compelling State interest" prong. There usually isn't in Fourteenth Amendment cases, because typically the Court just accepts the State's justifications unless there is clear evidence of a Legislature's bad faith in justifying its action, such as in McCreary, where the Court laughed off a county's ex post facto secular justifications for a Ten Commandments plaque because of the clear past intent to promote religion. The Court in this case accepts Texas' argument that it is protecting the health of the mother and the life of the unborn fetus. So that's that.
The real action here is on the "least restrictive alternative" prong. On the first interest, the mother's health, the Court takes notice of scientific data indicating that abortion is not the health hazard it once was. Thus, the Court, probably with tongue sticking out of the corner of its mouth as it concentrated, draws a bright line on the pregnancy timeline where the health hazard of abortion becomes greater than birth, and permits state regulation reasonably related to maternal health after that point.
On the second interest, the protection of the fetus's life, the Court basically throws its hands up in the air, saying, "When does life begin? We can't prove it in a way cognizable by this Court." It then again draws an arbitrary line on the timeline, after which the State may regulate or even proscribe abortion except when medically necessary for the mother's life or health.
Texas raises two possible counter-arguments; first, that fetuses are "persons" as indicated in the Fourteenth Amendment, and therefore the State cannot deprive them of life without "due process of law." Under the substantive due process concept, that means they can't do it at all. Second, Texas suggests that its interest in protecting life, which they argue begins at conception, requires a total proscription on abortion.
I don't find much to disagree with in the Court's opinion, except for one thing: the Court does an outstanding job of explaining why the rule it adopts on the question of "personhood" is good. It does a terrible job of explaining why it adopts its on when "life" begins. This is, to a certain extent, the nature of the beast; personhood is fairly clear, but "life" is not something the law has traditionally considered, except at its ending. The idea of criminalizing conduct that impacts only those who are unborn is unprecedented in Anglo-American law, which the Court points out was traditionally loath to impose liability for injury caused to the unborn.
To conclude my analysis of the Court, I think they got handed a hard case, and dealt with it about as well as can be expected, given the facts before them.
But the Court was badly fractured, and several concurrences and dissents were filed. Justice Rehnquist rejected the idea that a person's conversations with their doctor, having a "transaction[al]" character could not be private. If that's the case, then I'll expect Justice Rehnquist to be releasing his client files from private practice any day now. No? I didn't think so.
Chief Justice Burger concurred with the Court's opinion, although he was uncomfortable with the Court's notice of the scientific data that supported its discussion of "life." I have to agree with the Chief that that is certainly unusual - but the precedent was set in Brown, so we can hardly complain that Justice Blackmun was treading new ground.
Justice Douglas found the right to privacy in the Ninth Amendment, rather than the Fourteenth, as the Court did. At that point, of course, Justice Douglas is left holding the bag of "what else comes out of the Ninth Amendment?" He does, to my mind, yeoman's work in attempting to limit that truism's reach, but ultimately returns to the strict scrutiny analysis. He sees the statute as having balanced a personal liberty against a State interest "wholly in favor of the latter." Since strict scrutiny presumes that a State's intrusion on a personal liberty is invalid, Douglas throws out the statute.
Justice White's dissent is the basis for the great rallying cry of the conservative attack on reproductive rights. Allow me to quote the Justice:
"The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the ... fetus ... against ... the mother."
- Roe v. Wade, 410 U.S. 113 (White, J., dissenting)
Obviously, our friends on side opposite find this analysis compelling. I do not. The Court has repeatedly held that when States act contrary to the Constitution, that they are not permitted to do so. The power of the State to weigh for itself the values that it chooses to adopt are limited by the Constitution. The Court having ruled here that the Constitution does not permit a general proscription of abortion, that is that for Mr. Justice White's point. Thank you, don't bring that crap no more.
So what do we get, coming out of Roe? Well, as a matter of law, we all know what the Court's decision permits in terms of State action. But as a matter of normative policy, is there anything additional to be drawn from the other opinions?
First of all, let me shut down the idea that the dissents have any meaning whatsoever. Justice Rehnquist's dissent is a joke, since he himself would never abide by the professional restrictions he would place on doctors here. Justice White's dissent, although initially more compelling, collapses when we consider the fact that the Court has ruled.
And for those who would sit and argue that the Court has no power to rule here, let me shut you up now - see Marbury. Again. Read it closely, figure out why Marshall says the Court has the power to say what the Constitution means, and refute him. Once you can refute Marshall (who, let's face it, is much smarter than me), then come back and throw that point at us again.
So that's Roe. But that case is no longer necessarily good law. There's new abortion jurisprudence (and more probably coming out this year, but for now we'll stick to what's on the books), in Casey.
What does Casey have to say?
First, and most importantly, the Court in Casey is ridiculously fragmented. To count noses quickly: The plurality opinion is in six parts. It is the opinion of the Court as to parts I, II, III, V-A, V-C, and VI. It is a plurality of four (O'Connor, Kennedy, Souter, and Stevens) as to part V-E, and a plurality of three (O'Connor, Kennedy, and Souter) as to parts IV, V-B, and V-D. In addition, Justice Stevens files a separate concurrence in part and dissent in part, Justice Blackmun concurs in part, concurs in part of the judgment, and dissents in part, and Chief Justice Rehnquist and Justice Scalia file dissents joined by Justices White and Thomas.
Confused yet? It gets worse.
So, the opinion of the Court, first. Part I affirms the "essential holding" of Roe, granting women the right to bear or terminate without "undue interference," denying the State a legitimate interest in fetal protection prior to viability, and permitting that interest after viability only with health exceptions. Part II reaffirms the Court's discussion of the liberty implicated here, and its fundamentality. Part III declines to overturn Roebecause there is no compelling ground to do so and the principle of stare decisis otherwise binds the Court. Part V-A (the next section supported by a majority) considers the Pennsylvania statute's definition of "medical emergency," and accepts the Court of Appeals' construction, which does not impose an "undue burden." Part V-C discusses the spousal notification provision, holding in part,
"it is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than the father's.... The husband's interest in the life of the child his wife is carrying does not permit the State to ... give to [him] the kind of dominion over his wife that parents exercise over their children.... Women do not lose their constitutionally protected liberty when they marry."
Finally, part VI is nothing more than a rhetorical flourish.
The four-justice plurality rules in part V-E that the statute's recordkeeping requirements are "reasonably directed to the preservation of maternal health" and "properly respect a patient's confidentiality and privacy," and thus are constitutional, except for records demanded regarding the unconstitutional spousal notification.
The three justice plurality holds in part IV that the viability rule in Roe is overruled, because
"the fact that a law which serves a valid purpose has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause."
They hold in part V-B that the "informed consent" requirements, with a 24-hour waiting period, are not an undue burden because they foster a wise exercise of the right to terminate a pregnancy, rather than preventing its exercise. And in part V-D, the plurality holds that parental consent is fine, provided that an "adequate judicial bypass" is provided.
So, that's the Court's opinion. Let me start by saying that the three-justice pluralityis dead wrong on its adoption of a new standard. The Roe Court at least attempted to ground its standard in the law, although it was forced to take note of factual considerations usually not present in questions of law to do so. The Casey plurality grounds its standard in no law, Constitutional or otherwise. It simply makes up the standard because it finds the Roe standard arbitrary. It makes absolutely no sense for every other State invasion of personal liberty to be subject to strict scrutiny, while only reproductive rights are subject to this other standard. What is "undue burden?" How do we tell when it exists? How do we prevent clogging the courts with adjudication of what constitutes an "undue burden?" The Roe standard at least has a passing resemblance to strict scrutiny, but this standard is utter nonsense. If you're looking for judicial activism, here it is.
Because of this new standard, the informed consent requirements stand, while under Roe they might not have. Under the earlier rule, the waiting period would almost certainly have not been found to be the least restrictive alternative, striking it down.
The four-justice plurality's holding I suppose makes sense. Some of the questions seem snoopy to my taste, but I'm not the people of Pennsylvania.
The majority of the Court incorrectly, to my mind, applies the new standard announced here. I don't know what the result on the "medical emergency" provision would have been under the old standard, but there's a hint that it might have been too narrow to satisfy Roe. The spousal consent provision is obvious - if it was unconstitutional under this standard, it's unconstitutional under the older, stricter standard.
So now we move to the morass of justices standing apart from the Court. Justice Stevens' concurrence denies that the State has a compelling interest in protecting fetal life, finding that interest not grounded in the Constitution. It's certainly an interesting point, although I won't be so bold as to claim it for my own. Justice Stevens usually has an interesting perspective that almost invariably contracts the sphere of State action, either at the gain of federal power or individual liberty. In other words, he seems to see the United States as less federal and more unified. It's a position.
Justice Blackmun makes the majority for those parts of the opinion which command one. He, however, would strike down all the regulations, since none of them pass strict scrutiny, which he would uphold. Justice Blackmun proved frighteningly prescient when he wrote
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may exactly where the choice between [the Court and the dissent] will be made.
Now, it should be clear that I stand with Justice Blackmun, and admire, though I do not agree with, Justice Stevens. No more need be said.
The dissenting barbershop quartet explains in the Chief's opinion that Roe should be overruled entirely. Unfortunately, the Chief also notes that although strict scrutiny has a basis in Constitutional law, "undue burden" does not. The difference is that the Chief would apply rational basis review, which presumes validity unless no rational basis can be shown for the statute, and thus uphold all the regulations.
In Justice Scalia's opinion, the dissenters talk (as Scalia is wont to do) about the "longstanding traditions of American society," despite the fact that the Court has never hesitated to turn away from said traditions (such as segregation, or the liberty of contract). Scalia goes on to explain to any listening to his shrill screed that if we let women have abortions, it will lead directly to judicial acceptance of "homosexual sodomy, polygamy, adult incest, and suicide." (Personal note to Nino: We did the first a few years ago, and you were just as much a crybaby then, too - and the rest are easy questions to distinguish. Asshole.)
The dissent's problem is that the Chief is forced to tapdance around the idea that a woman's right to control her body is a "fundamental personal liberty," and can only get there by conceiving of "liberty" as expressio unius est excludio alterius, which is explicitly contradicted by the Constitution (The Ninth Amendment). Scalia, on the other hand, is forced to mischaracterize the right. The right is not, as he describes it, the right to "destroy human fetuses." The right is to "bear or terminate a pregnancy." The Court properly characterizes the right when it says that the right runs both ways, saying
If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control or eugenics, for example.
So what can we take away from all of this? Here's the good news: There's a solid majority of the current Court that supports and defends the "essential holding" of Roe: Kennedy, Souter, Stevens, Ginsburg, and Breyer. Here's the bad news: The strict scrutiny standard that Roe demanded can command only three votes that we know of - Stevens, Ginsburg, and Breyer - and has four known votes in favor of a rational basis standard - Souter, Kennedy, Scalia, and Thomas. In addition, Justice Alito was a Court of Appeals judge that was reversed by the Court in Casey, so it can be assumed that he will stand with the four dissenters in that case.
It don't look good for the home team, kids. But, as we've known all along, elections have consequences. Maybe now NARAL and NOW will figure it out too.