The Abortion Cases Part Eleven

Abortion remains a volatile issue on the Court

In Planned Parenthood of Southeastern Pennsylvania v. Casey the Supreme Court eked out another close decision fractured even as to who authors what part of the opinion. It was a 5-4 decision. Associate Justice O'Connor, Associate Justices Kennedy and Justice Souter announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V E, in which Justice Stevens joins, and an opinion with respect to Parts IV, V-B, and V-D.

Associate Justice Stevens concurred in part and dissented in part from the majority opinion.

Associate Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. Blackmun joined parts I, II, III, V-A, V-C, and VI of the majority opinion.

Chief Justice Rehnquist concurred in the judgment in part and dissented in part. He was joined by Associate Justices Scalia and Thomas.

Associate Justice Scalia wrote an opinion dissenting in part, he was joined by Chief Justice Rehnquist and Associate Justices White and Thomas.

Five sections of the Pennsylvania Abortion Control Act of 1982 were at issue in this case.

1. §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed;
2. § 3206 mandating the informed consent of one parent for a minor to obtain an abortion, but providing a judicial bypass procedure;
3. §3209 commanding that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;
4. §3203 defining "medical emergency" by which compliance with the foregoing requirements are excused;
5. §§ 3207(b), 3214(a), and 3214(f), imposing certain reporting requirements on facilities providing abortion services.

This case mounts another facial challenge to the constitutionality of a State law on abortions. Here the petitioners, five abortion clinics, a pro se physician, and a class of doctors who provide abortion services brought suit for declaratory relief asking that the several sections listed above were unconstitutional; they also sought injunctive relief.

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.

The opinion said "After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed"

O'Connor wrote: "Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest."

Associate Justice Sandra Day O'Connor addresses the self-evident 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. She said:

"That brings us, of course, to the point where much criticism has been directed at Roe, a criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude, however, that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, require us to perform that function. Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

We conclude the line should be drawn at viability, so that before that time the woman has a right to choose to terminate her pregnancy. We adhere to this principle for two reasons. First, as we have said, is the doctrine of stare decisis. Any judicial act of line drawing may seem somewhat arbitrary, but Roe was a reasoned statement, elaborated with great care. We have twice reaffirmed it in the face of great opposition. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S., at 759; Akron I, 462 U. S., at 419-420. Although we must overrule those parts of Thornburgh and Akron I which, in our view, are inconsistent with Roe's statement that the State has a legitimate interest in promoting the life or potential life of the unborn, see infra, at ___, the central premise of those cases represents an unbroken commitment by this Court to the essential holding of Roe. It is that premise which we reaffirm today.

The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. See Roe v. Wade, 410 U. S., at 163. Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child.

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."

The majority rejected the trimester rule established by the Court in Roe. "The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers."

The Court's majority deftly addresses the interests of the States in these cases. "The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty."

Feathering out the dimensions of the undue burden standard O'Connor wrote that "[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.

"Some guiding principles should emerge," the majority said. "What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden."

Abortion is not an unfettered right

Addressing the particular clauses of the Pennsylvania statute listed above O'Connor begins with point four, §3203 defining "medical emergency."

That section says a medical emergency is "[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function."

The opinion said that §3203 imposed no undue burden on a woman's abortion right.

The Court next addressed §3205 requiring a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed.

Informed consent continued to be a focus of a State's limits in expressing its preference for live childbirth. O'Connor wrote "To the extent Akron I and Thornburgh find a constitutional violation when the government requires, as it does here, the giving of truthful, nonmisleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the 'probable gestational age' of the fetus, those cases go too far, are inconsistent with Roe's acknowledgment of an important interest in potential life, and are overruled."

Upholding §3205 the Court said "Even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand. See, e. g., Doe v. Bolton, 410 U. S., at 189. Rather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State. Because the informed consent requirement facilitates the wise exercise of that right it cannot be classified as an interference with the right Roe protects. The informed consent requirement is not an undue burden on that right."

Evidence at trial demonstrated a litany of harms that present themselves to a woman where she is required by law to get the husband's consent as §3209 mandates. In striking down this provision the Court said "The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases"

O'Connor traced the legal history of marriage back to a time when women had no rights and were seen only as extensions of their husbands. She wrote "Section 3209 embodies a view of marriage consonant with the common law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that §3209 is invalid"

The Court rejected, again, the notion that parental consent violates a minor's rights under Roe where a judicial bypass is provided by the statute. The Court said "We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure"

The Court affirmed part and invalidated part of the record keeping requirements of the Pennsylvania law. "Subsection (12) of the reporting provision requires the reporting of, among other things, a married woman's "reason for failure to provide notice" to her husband. § 3214(a)(12). This provision in effect requires women, as a condition of obtaining an abortion, to provide the Commonwealth with the precise information we have already recognized that many women have pressing reasons not to reveal. Like the spousal notice requirement itself, this provision places an undue burden on a woman's choice, and must be invalidated for that reason."

Associate Justice Stevens wrote an opinion which concurred in part and dissented in part. He was concerned that more clarification was needed to guide the States as to when their interest in maternal health and live childbirth could override the privacy interest of the woman to make the choice to terminate her pregnancy.  The counterpoise from the States' interest in potential life was the liberty interest of the mother.

Pennsylvania's Governor Robert P. Casey, Sr. depicted as a Pope

He was also concerned that State law reflected secular, avoiding any violation of the First Amendment's Establishment Clause. "First, it is clear that, in order to be legitimate, the State's interest must be secular; consistent with the First Amendment the State may not promote a theological or sectarian interest."
Stevens rejects the Court's decisions in Akron and Thornburg He wrote "Those sections require a physician or counselor to provide the woman with a range of materials clearly designed to persuade her to choose not to undergo the abortion. While the State is free, pursuant to § 3208 of the Pennsylvania law, to produce and disseminate such material, the State may not inject such information into the woman's deliberations just as she is weighing such an important choice."

Associate Justice Blackmun, appreciative of the affirmation of the Court's decision in Roe, nevertheless expressed concern about the hostile judicial activism mounting on the Court to the landmark case. He wrote "I do not underestimate the significance of today's joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light.

He continued " Make no mistake, the joint opinion of Justices O'Connor, Kennedy, and Souter is an act of personal courage and constitutional principle. In contrast to previous decisions in which Justices O'Connor and Kennedy postponed reconsideration of Roe v. Wade, 410 U.S. 113 (1973), the authors of the joint opinion today join Justice Stevens and me in concluding that "the essential holding of Roe should be retained and once again reaffirmed." In brief, five Members of this Court today recognize that "the Constitution protects a woman's right to terminate her pregnancy in its early stages."

Chief Justice Rehnquist, ironically anchored his rebuff of the Substantive Due Process Rights of a woman's liberty under the Fourteenth Amendment to the case of Bowers v. Hardwick. The Bowers case dealt with Georgia criminalizing sodomy; oral and anal sex between consenting adults. I say ironic because the Supreme Court managed to overrule Bowers seventeen years later in a similar case from Texas, Lawrence v. Texas. Rehnquist generally assails the majority in his somewhat rambling dissent.

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."

Associate Justice Antonin Scalia

Apparently Nino Scalia has never read the Constitution which begins with the Preamble. "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."