Tuesday, March 27, 2012

The Abortion Cases, a synopsis - before we move forward.

The Abortion Cases

Skinner v. Oklahoma, an Oklahoma case authorizing the sterilization of criminals convicted of felonies equivalent to moral turpitude was struck down.  Procreation is a fundamental right.  Griswold v. Connecticut, is the case that legalized birth control. United States v. Vuitch, involved the statutory interpretation of the District of Columbia's abortion statute.  Eisenstadt v. Baird, is a case that raised the issue of privacy and Equal Protection of the law.  The case centered around a lecture given about a vaginal foam contraceptive.  Under the law the speech was illegal.  A single woman picked up a sample of the contraceptive which was also illegal because the law only permitted married couples from employing contraception.

Roe v. Wade, is the landmark decision legalizing abortions.  It is a well reasoned and well decided case.  The only weakness in Roe is that the it places the law on a collision course with Medical Science.  Roe grants a woman a qualified right to have an abortion while acknowledging the State Interest in preserving fetal life.  That interest is always secondary to the life and the health of the woman seeking the abortion.  Doe v. Bolton, was the companion case to Roe, and involved a Georgia statute containing procedural requirements the Court said violated the Fourteenth Amendment.

Planned Parenthood of Central Missouri v. Danforth, raised the issue of fetal viability. Here the Court ruled that if the fetus can be kept alive, even with medical devices, then that option can be enforced by the State over abortion.  Then the Court said that Missouri could not give the spouse veto power over the wife's decision.  The Court ruled that Missouri could require consent but those conditions did not apply in emergency situations where the mother's life hung in the balance.  Likewise the Court rejected the notion of blanket requirements that the parents of minors be notified of the abortion.  The Court struck down the ban on the most common form of abortion amniocentesis.

Bellotti v. Baird, is another parental notification case. The court struck down this blanket notification law.

Maher v. Roe, Beal v. Doe, Poelker v. Doe are companion cases. Maher v. Roe and Poelker v. Doe each deal with statutes that limited the use of public funds in paying for abortions. These two cases each ask the question if Connecticut, in the Maher case, and the city of Saint Louis, Missouri, in the Poelker case, violated the Equal Protection Clause of the Fourteenth Amendment.  Poverty is not a suspect classification for heightened scrutiny, these states did not need to foot the bill.  The fundamental right recognized in Roe v. Wade was distinguished.  States need not show a compelling state interest in refusing to fund abortions, their statutes must be reasonably related to their policy choice of preferring live birth to abortion.

Beal v. Doe focuses on Title XIX of the Social Security Act requirement  that states participating in the Medicaid program fund the cost of nontherapeutic abortions.  The Court disagreed since when Title XIX passed the Congress abortions had not yet been legalized.

In Harris v. McRae, more challenges were levied at Title XIX based on right to privacy, the Due Process Clause of the Fifth Amendment, or the Religion Clauses of the First Amendment.  This was a challenge to the Hyde Amendment prohibiting the use of federal dollars for abortion. These challenges failed, but barely; the Court reached a 5 to 4 decision.

City of Akron v. Akron Center for Reproductive Health, is another case about the state's elevated interest in the third term of the pregnancy.   The Court reaffirmed the State's interest in health regulation becoming compelling at approximately the end of the first trimester. That compelling state interest in health is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest. The State is obliged to make reasonable efforts limit the effect of its regulations to the period in the trimester during which its health interest is furthered.

In Planned Parenthood Association v. Ashcroft a sharply divided Court struck down part of a Missouri statute while upholding other sections of the law.  Requiring second trimester abortions to be performed only in hospitals was again held unconstitutional.  Missouri's requirement of a second physician and a pathology report were found to be reasonably related to the purpose of the statute.

A Virginia statute requiring abortions to be performed in hospitals was not held to be unconstitutional in Simopoulos v. Virginia.  The exception here was that Virginia licensed not only Hospitals but outpatient surgical centers as well.

Thornburgh v. American College of Obstetricians & Gynecologists, finds another deeply divided Supreme Court delivering a 5 - 4 opinion.  The issue here was informed consent.  The opinion struck down the Pennsylvania law saying Pennsylvania cannot coerce a woman into continuing an unwanted pregnancy.

In Webster v. Reproductive Health Center, the Supreme Court in a fractured decision.  Only Pat II-C, which dealt with public funding was unanimous, the State of Missouri argued the statute only dealt with officials who were responsible for expending funds.  Then the appellees removed their claim making the issue moot.  When there is not controversy it is to find unanimity.

Part II-A dealt with the preamble to the statute which Missouri said was instructive and had no operative effect.  In dissent Associate Justice Blackmun wrote "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."

Chief Justice Rehnquist used Part II-D to assail the strict trimester rule developed in Roe v. Wade.

Part III of the opinion narrowed and restricted Roe v. Wade holding that Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded.  The collision course upon which Roe and medical science has now been noticed by the Court.

In his scathing dissent Blackmun wrote "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."

Public funding of family planning under Title X was scrutinized in Rust v. Sullivan.  The challenge in this case was a facial challenge.  A facial challenge applies the inconceivable standard.  It is inconceivable that under any circumstance the statute is constitutional.  This is an extremely high threshold.  The other kind of challenge to the constitutionality of a statute is the as applied challenge.  In an as applied attack the person arguing that the statute is unconstitutional need only demonstrate that under a particular set of circumstances the law is invalid, even if it is valid under other circumstances and for other reasons.  The Court seldom sustains a facial challenge to a federal statute.  State statutes tend not to receive the deference accorded Acts of Congress.

In Rust v. Sullivan, the Secretary of the Department of Health and Human Services developed regulations pursuant to authority conveyed by Title X.  There are three parts to the regulations that were being challenged.  First, a Title X project may not provide counseling concerning the use of abortion as a method of family-planning or provide referral for abortion as a method of family planning. Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning. Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

The Court found the language of Title X ambiguous. Rehnquist said it was permissible for separate facilities and record keeping be maintained. The Court's majority also rejected, by tiptoeing through a long line of cases, the argument that the rules advanced here violated the First Amendment.  Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment.

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. 

Associate Justice Stevens said: "I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals."

Associate Justice Sandra Day O'Connor said: "In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of 1008 compels the Secretary's interpretation, and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

With Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court again delivered a fractured opinion.  At issue was a facial challenge [inconceivable standard] to five sections of a Pennsylvania statute requiring informed consent, informed consent for a minor, certification of husband notification, defining medical emergency, and imposing reporting requirements.

The District Court held all the provisions unconstitutional and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the balance.

Associate Justice Sandra Day O'Connor addressed the tension in Roe between a woman's unfettered right under the Fourteenth Amendment to terminate her pregnancy and the State's interests in protecting potential life.  Her opinion reflected the rule from Webster v. Reproductive Health Center, that the point where the state's elevated interest in protecting fetal life begins with viability.

Associate Justice Nino Scalia, in his dissent, said that he does not believe that our "Liberty" is not protected by the Constitution. "The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." 

Stenberg v. Carhart brought a Nebraska statute criminalizing late tern abortions before the Court.  Associate Justice Breyer began his 5-4 opinion affirming that Roe v. Wade would not be overturned.  Breyer's opinion focused on three established principles.  "First, before 'viability … the woman has a right to choose to terminate her pregnancy.'”  "Second, 'a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability' is unconstitutional."  "Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"

Associate Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational."

Associate Justice O'Connor said "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."

Associate Justice Ginsberg said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue."

Associate Justice Scalia, who as we recall cannot find the concept of Liberty in the Constitution, attacked the Court's opinion as "policy-judgment-couched-as-law."

Associate Justices Kennedy's and Thomas' dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Chief Justice Rehnquist with Scalia, Kennedy, and Thomas would give great deference to Nebraska. They find Justice O'Connor's view that the statute would pass constitutional muster with an appropriate exception for the health of the mother disingenuous.

Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America  finds the Court tackling the gruesome topic of Partial Birth Abortion, again.

Carhart facial challenged the constitutionality of the Act. Carhart claimed the Act was void for vagueness, or in the alternative, was constitutionally infirm because it placed an undue burden based on a woman's right to abortion based on the Act's overbreadth or lack of health exception.

Associate Justice Kennedy concluded that the Act in this case was not void for vagueness and did not impose an undue burden from any sense of overbreadth. The facial challenge to the Act failed.

It is important to note that the Act applies without regard to whether the fetus is pre or post viable. This point was uncontested by the parties.

To fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.”

Finally the Court discusses mens rea, "Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks.

Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution.

Associate Justice Ginsburg delivered an attack of the opinion in her dissent.  She said "Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health."  Quoting Seventh Circuit Chief Judge Richard Posner she said "if a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostilities to those rights, the burden is undue."
That took the line of cases to 2007.  Now we see states, like Kansas, doing what the New England Journal of Medicine spoke about, adopting laws that tell the physician to ignore the health of the patient.


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