Saturday, June 19, 2010

The Abortion Cases Part Nine

Webster v. Reproductive Health Center primarily demonstrated that Roe v. Wade is on shaky grounds. The sixteen intervening years since Roe was handed down had not proved sufficient for the law to settle along the seismic fault lines between an individual's right to privacy and the States' interests in safeguarding and protecting potential human life.

The fractured nature of the opinion gives good indication that the Justices are not of one mind regarding the state of law on abortion. Here, only Part II-C is a unanimous opinion. The opinion was delivered by Chief Justice Rehnquist.

Chief Justice William Rehnquist

The Court of Appeals invalidated the public funding portion of the Missouri Statute, §188.205. In Part II-C the Court addressed the threshold question "whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling" Two things happened here, first the State of Missouri argued that the statute applied only to "those persons responsible for expending public funds." The second thing was that the appellees withdrew their claim. Thus the issue was moot. Now, do you see why this part was unanimous?

Rehnquist was joined by Justices White, O'Connor, Scalia, and Kennedy with respects to parts I, II-A, and II-B. Part I of the opinion dealt with a brief history of the case as it came to the Supreme Court.

Part II-A dealt with the statute's preamble. which says in pertinent part that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and wellbeing." Mo.Rev.Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. The Court of appeals invalidated the statute's preamble.

Rehnquist wrote In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 474. The preamble can be read simply to express that sort of value judgment.

Rehnquist deferred to Missouri State Courts to first apply the statute, and passed on finding whether or not the preamble was unconstitutional.

The Court of Appeals said that § 188.210 of the Missouri law "[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother," and § 188.215 making "unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother" were contravened by the Supreme Court's prior decisions.

In Part II-B Rehnquist rules that the Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." The opinion of this Court disagreed with the Court of Appeals.

Chief Justice Rehnquist was joined in Part II-D and III by Justices White and Kennedy.

In interpreting §188.029 Rehnquist, in Part II-D, believes that the Court of Appeals committed plain error by interpreting a statute' single sentence rather than construing the act as a whole.

That disputed part of Missouri's law provides that "[b]efore a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother."

Chief Justice Rehnquist said " We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed." The Chief Justice used this opinion to attack the underpinning decision in Roe v. Wade.

As to the statute at hand the Chief Justice said "we are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional."

Part III of the opinion goes to the heart of overturning Roe v. Wade. The Chief Justice said: "Both appellants and the United States as Amicus Curiae have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

Associate Justice Sandra Day O'Connor filed an opinion in which she concurred in Parts I, II-A, II-B, and II-C of the Court's opinion and concur in the judgment as to Part II-D.

Associate Justice Nino Scalia

Associate Justice Nino Scalia filed an opinion concurring in Parts I, II-A, II-B, and II-C and agrees with Associate Justice Harry Blackmun's view that the plurality's opinion would effectively overrule Roe v. Wade. Justice Scalia clearly states that he would overrule Roe v. Wade.

Associate Justice Blackmun wrote a dissenting opinion in which Justices Brennan and Marshall concurred. This opinion is a scathing attack on the plurality.

Blackmun wrote that never in his "memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella."

Associate Justice Stevens filed an opinion concurring in part and dissenting in part. Justice Stevens rightly positions the argument regarding the Missouri statute's preamble in light of being in violation of the First Amendment's Establishment Clause.

Justice Blackmun said:" In my opinion, the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment. Contrary to the theological "finding" of the Missouri Legislature, a woman's constitutionally protected liberty encompasses the right to act on her own belief that -- to paraphrase St. Thomas Aquinas -- until a seed has acquired the powers of sensation and movement, the life of a human being has not yet begun."

Webster v. Reproductive Health Center was decided in 1989.

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