Friday, June 18, 2010

The Abortion Cases Part Eight

The sharp division of the Court continued with the 5-4 decision in Thornburgh v. American College of Obstetricians & Gynecologists. Associate Justice Harry Blackmun delivered the opinion in which Justices Brennan, Marshall, Powell, and Stevens joined, with Stevens filing a separate concurring opinion. Chief Justice Burger filed a dissenting opinion. Justice White filed a dissenting opinion in which Justice Rehnquist joined. Justice O'Connor filed a dissenting opinion in which Justice Rehnquist joined.

Pennsylvania enacted a statute, the Pennsylvania Abortion Control Act of 1982. Appellees, the American College of Obstetricians & Gynecologists brought suit in Federal District Court seeking declaratory and injunctive relief.

The Court of Appeals granted appellees request for injunctive relief by enjoining enforcement of the entire act. Then the Court of Appeals held that part of the Pennsylvania was unconstitutional, relying on Planned Parenthood Association v. Ashcroft, City of Akron v. Akron Center for Reproductive Health, and Simopoulos v. Virginia.

The Court of Appeals ruled that §3205 was unconstitutional with respect to the provisions of informed consent requiring the woman be informed of:

 the name of the physician who will perform the abortion
 the particular medical risks of the abortion procedure to be used and of carrying her child to term
 that there may be "detrimental physical and psychological effects
 medical assistance benefits may be available for prenatal care, childbirth, and neonatal care
 the father is liable to assist in the child's support
 printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion
 § 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born
 a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments
 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability,
 and the method of payment for the abortion, and further provide that such reports shall not be deemed public records, but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report
 § 3211(a) that requires the physician, after the first trimester, to report the basis for his determination that a child is not viable;
 §3210(b) that requires a physician performing a postviability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health
 § 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health.

Powell's opinion ruled that The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make.

The printed materials required by §§ 3205 and 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician. Similarly, § 3205's requirement that the woman be advised that medical assistance may be available, and that the father is responsible for financial assistance in support of the child, are poorly disguised elements of discouragement for the abortion decision. And § 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent.

The scope of the information required by §§ 3214(a) and (h) and 3211(a) and its availability to the public belie any assertions by the State that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated.

Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions

Justice John Paul Stevens

Associate Justice John Paul Steven's relied on stare decisis, the precedence of former cases on point with the instant opinion. Justice Stevens also took Associate Justice Byron "Whizzer" White to task for his dissent. White wrote a concurrent opinion in the Griswold case.

Justice Steven's writes that "In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of individual liberty have recognized that certain values are more important than the will of a transient majority."

Chief Justice Burger's dissent said: "In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe."

"The Court's astounding rationale for this holding is that such information might have the effect of "discouraging abortion," ante at 762, as though abortion is something to be advocated and encouraged. This is at odds not only with Roe, but with our subsequent abortion decisions as well. As I stated in my opinion for the Court in H. L. v. Matheson, 450 U.S. 398 (1981), upholding a Utah statute requiring that a doctor notify the parents of a minor seeking an abortion:

The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action "encouraging childbirth except in the most urgent circumstances" is "rationally related to the legitimate governmental objective of protecting potential life."

Associate Justice Byron "Whizzer" White during his college days

Associate Justice Byron Raymond "Whizzer" White's dissent is a blockbuster. He says that it is time to overrule Roe v. Wade. White's opinion speaks to refining substantive Due Process of Law. He writes: "In most instances, the substantive protection afforded the liberty or property of an individual by the Fourteenth Amendment is extremely limited: state action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. I can certainly agree with the proposition -- which I deem indisputable -- that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny."

White's dissent cuts to the heart of a woman's right to privacy. White then takes the discussion to the nature of a fetus. "However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy."

White's argument makes the State's interest compelling both pre and post viability. "The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State's interest, if compelling after viability, is equally compelling before viability."

Justice O'Connor's dissent dealt largely with the application of equitable principles on how, what, why, and when the courts may grant injunctive relief. She wrote an essay on the Law of Remedies. Of importance in our look at these Abortion Cases is her displeasure with the majority's use of her standard of undue burden.

She writes: "The Court today goes well beyond mere distortion of the 'unduly burdensome' standard. By holding that each of the challenged provisions is facially unconstitutional as a matter of law, and that no conceivable facts appellants might offer could alter this result, the Court appears to adopt as its new test a per se rule under which any regulation touching on abortion must be invalidated if it poses 'an unacceptable danger of deterring the exercise of that right.' Under this prophylactic test, it seems that the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it. Simultaneously, the Court strains to discover 'the anti-abortion character of the statute.' [A]s JUSTICE WHITE points out, invents an unprecedented canon of construction under which 'in cases involving abortion, a permissible reading of a statute is to be avoided at all costs.'(dissenting). I shall not belabor the dangerous extravagance of this dual approach, because I hope it represents merely a temporary aberration, rather than a portent of lasting change in settled principles of constitutional law. Suffice it to say that I dispute not only the wisdom, but also the legitimacy, of the Court's attempt to discredit and preempt state abortion regulation regardless of the interests it serves and the impact it has."

Because the State of Pennsylvania did not ask the Court to reconsider or to overrule Roe v. Wade Justice O'Connor declined to address the question.

Thornburgh v. American College of Obstetricians & Gynecologists was decided in 1985.

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