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

The Abortion Cases

Part One: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-one.html. 

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.

Part Two:  http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-two.html. 

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.

Part Three: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-three.html. 

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.

Part Four: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-four.html.

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.

Part Five: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-five.html. 

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.

Part Six: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-six.html.

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.

Part Seven: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-seven.html. 

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.

Part Eight: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-eight.html.

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.

Part Nine: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-nine.html. 

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."

Part Ten: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-ten.html.

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.

Part Eleven:  http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-eleven.html.

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." 

Part Twelve: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-twelve.html.

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.

Part Thirteen: http://ideas-observations--mentalmachinati.blogspot.com/2010/06/abortion-cases-part-thirteen.html.

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.

See, http://www.nejm.org/doi/full/10.1056/NEJMhle072595.

  

THE ESTABLISHMENT CLAUSE, RU486 & MISSOURI SENATE BILL 793 ARE ON A COLLISION COURSE HEADED TO THE UNITED STATES SUPREME COURT

Missouri Senate Bill 793 is about to become the State's new Abortion Law. Governor Jay Nixon neither signed nor vetoed the bill.  Pursuant to Article III, § 31 of Missouri's Constitution, it becomes law on the Governor's inaction when the General Assembly is not in session. 

Missouri Senate Bill 793 is suspect legislation when viewed from the perspective of Supreme Court case law. The relentless adherence to a theological concept prohibits Missouri's General Assembly from conceiving their error or legislating in appropriate ways to avoid Constitutional conflict.

In a nutshell, abortion is not an unfettered right. A woman' decision to terminate her pregnancy during the previability phase, generally the first trimester, is protected by the Constitution. This protection stems from the Liberty Interest, as described in the Fourteenth Amendment, and resulting restrictions against state action. Another plausible source of this right to privacy, noted by the Supreme Court, is the Ninth Amendment.

Missouri's new law does not even tip its hat to the long line of cases that have upheld a woman's right to privacy with respect to her body; Not even a nod.

In the years since the 1973 decision in Roe v. Wade medical science has moved forward. Available today is emergency contraception called Plan B. Available today is RU486, a medicine called the "abortion pill." The active ingredient in RU486 is mifepristone.

Since RU486 permits a woman to terminate her pregnancy well before viability Missouri realizes that they may not legislate as to mifepristone, right? Wrong.

The problem stems from Missouri's persistent abandonment of science in favor of violating the Establishment Clause of the Constitution. §1.205 Mo.Rev.Stat. makes it law in Missouri that life begins at conception.

§1.205 Mo.Rev.Stat.

Life begins at conception--unborn child, defined--failure to provide prenatal care, no cause of action for.

1. The general assembly of this state finds that:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being;

(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child. 2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state. 3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development. 4. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

Missouri Senate Bill 793 contains similar language.

§188.027.1(2) Mo.Rev.Stat. [New]

The physician who is to perform or induce the abortion or a

qualified professional has presented the woman, in person, printed

materials provided by the department, which describe the probable

anatomical and physiological characteristics of the unborn child at two-week gestational increments from conception to full term, including color photographs or images of the developing unborn child at two-week gestational increments. Such descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development and information on when the unborn child is viable. The printed materials shall prominently display the following statement: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being."

§188.039 Mo.Rev.Stat.

1. For purposes of this section, "medical emergency" means a 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 a serious risk of substantial and irreversible impairment of a major bodily function.

2. Except in the case of medical emergency, no person shall perform orinduce an abortion unless at least twenty-four hours prior thereto [a treating physician] the physician who is to perform or induce the abortion or a qualified professional has conferred with the patient and discussed with her the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure and the use of medications, including but not limited to mifepristone, in light of her medical history and medical condition. For an abortion performed or an abortion induced by a drug or drugs, such conference shall take place at least twenty-four hours prior to the writing or communication of the first prescription for such drug or drugs in connection with inducing an abortion. Only one such conference shall be required for each abortion.

3. The patient shall be evaluated by [a treating physician] the physician who is to perform or induce the abortion or a qualified professional during the conference for indicators and contraindicators, risk factors including any physical, psychological, or situational factors which would predispose the patient to or increase the risk of experiencing one or more adverse physical, emotional, or other health reactions to the proposed procedure or drug or drugs in either the short or long term as compared with women who do not possess such risk factors.

4. At the end of the conference, and if the woman chooses to proceed with the abortion, [a treating physician] the physician who is to perform or induce the abortion or a qualified professional shall sign and shall cause the patient to sign a written statement that the woman gave her informed consent freely and without coercion after the physician or qualified professional had discussed with her the indicators and contraindicators, and risk factors, including any physical, psychological, or situational factors. All such executed statements shall be maintained as part of the patient's medical file, subject to the confidentiality laws and rules of this state.

5. The director of the department of health and senior services shalldisseminate a model form that physicians or qualified professionals may use as the written statement required by this section, but any lack or unavailability of such a model form shall not affect the duties of the physician or qualified professional set forth in subsections 2 to 4 of this section.

6. As used in this section, the term "qualified professional" shall
refer to a physician, physician assistant, registered nurse, licensed
practical nurse, psychologist, licensed professional counselor, or
licensed social worker, licensed or registered under chapter 334, 335, or 337, acting under the supervision of the physician performing or inducing the abortion, and acting within the course and scope of his or her authority provided by law. The provisions of this section shall not be construed to in any way expand the authority otherwise provided by law relating to the licensure, registration, or scope of practice of any such qualified professional.

To be effective mifepristone needs to be administered within 49 days of conception. The woman first has to know she has conceived.  She then has to make an appointment with her physician.  Chances are that none of this is covered by insurance, so she will have to have funds available to see the health care provider and pay for the medicine.  Now Missouri wants to add to that equation that she must see the physician, be counseled according to the new law, go home, come back, get the prescription, and then enforce her difficult decision to terminate her pregnancy.  She has seven weeks to get all of this done.  Given the time it takes to notice that she missed her period and the time it takes to budget money for doctor and medicines, Missouri is effectively reducing the window of opportunity for this woman to have a safe non-surgical abortion, at a time when there is 0% probability that the gamete, zygote, or fetus is viable. 

The first question is whether this creates an undue burden on a Fundamental Right.  Where is the State's compelling interest in stopping a woman from making the decision to terminate her preganancy in the first 7 weeks?  Clearly the statute is not narrowly tailored to achieve the State's interest as it applies with equal force to previability cases as well as postviability circumstances. The next question is whether Missouri has violated the Establishment Clause by enforcing the religious dictum of some Christian churches that life begins at conception.

Well qualified plaintiffs need come forward to challenge this part of Missouri's new abortion law. A woman using Plan B must seek declaratory relief asking the court to exempt emergency contraceptives like Plan B from §188.027.1(2). Another woman, a pharmacist, and a physician must ask the court for declaratory relief that §188.027.1(2) places an undue burden on a fundamental right protected by the Fourteenth Amendment. These plaintiffs need to challenge that Missouri Senate Bill 793 as violating the Establishment Clause of the Constitution. Suit must be filed in a Circuit Court in Missouri.

It is time for Missouri to put up evidence proving they have not violated the Establishment Clause. This issue went unresolved in Webster v. Reproductive Health Services, a 1989 case. Associate Justice Stevens provided a lengthy discussion as to why Missouri cannot be permitted to legislate in this manner. Chief Justice Rehnquist's opinion deferred deciding the issue until after Missouri Courts have interpreted §1.205 Mo.Rev.Stat. That is why suit must be brought in a Missouri Circuit Court.

Now it will be more difficult for Missouri to argue that this repetitious language is "precatory, and imposes no substantive restrictions on abortions." Precatory is a legal term of art meaning to make a wish or express a desire. Missouri shows its intent by moving the language from a statute's preamble into the substantive body of the abortion statute.

For his part, Associate Justice Stevens' opened his argument saying:

Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland; Harris v. McRae, or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis. Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some, but by no means all, Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause, [See,] Wallace v. Jaffree.

The Abortion Cases Part Thirteen

The Court revisits Partial Birth Abortion

In Gonzales v. Carhart and the companion case of Gonzales v. Planned Parenthood Federation of America the Court again tackles the gruesome topic of Partial Birth Abortion. This time a federal statute, the Partial-Birth Abortion Ban Act of 2003.

This Act, 18 U.S.C. § 1531, differs from the Nebraska statute in Stenberg v. Carhart. First the Act does not regulate the most common method of abortion used during the first trimester of pregnancy. Second the Act does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

Congress made findings that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.

Attorney General Alberto Gonzalez

In the principal case, Gonzales v. Carhart, Carhart made a facial challenge to the constitutionality of the Act. Carhart's claimed the Act was void for vagueness, or in the alternative, it 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 Anthony Kennedy wrote the Court's 5 - 4 opinion. He was joined by Chief Justice John Roberts, and Associate Justices Scalia, Thomas, and Alito. Associate Justice Clarence Thomas wrote a separate concurring opinion joined by Justice Scalia.

Associate Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Associate Justices Stevens, Souter, and Breyer.

Associate Justice Anthony Kennedy

For the majority Kennedy begins by distinguishing the case of Planned Parenthood v. Casey. Kennedy writes "Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life — would be repudiated were the Court now to affirm the judgments of the Courts of Appeals."

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. "The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb.  We do not understand this point to be contested by the parties.”

The Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” §1531(b)(1)(A).  The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’”—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply.

Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” §1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark.

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. §1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind."

Associate Justice Clarence Thomas continues to claim that there is no right to an abortion under the Constitution. He deftly notes that the question of whether abortion is permissible under the Commerce Clause is not before the Court. The Act makes specific reference to the Commerce Clause of the Constitution.

§1531

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

We must be alert to attempts to derail the decision of Roe v. Wade by those who argue that no fundamental right to Liberty exists and thus there would be no right to privacy.

Associate Justice Ginsburg protests the short shrift given stare decisis in the Court's opinion. She wrote:

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. 

I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.

Justice Ginsburg's point is well taken. Here is the applicable part of the Act.

§1531

(d)

(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The exception does not apply to the woman's health.

Recall that the Partial Birth Abortion cases apply to only a narrow percentage of all abortive procedures. It is readily apparent that neither side is giving much credence to the other side when it comes to fashioning a consistent rule of law guiding late term abortions. However, the majority, minus Justice Thomas, affirmed the essential holding of Roe in this case.

The Abortion Cases Part Twelve

Nebraska's Dr. Leroy Carhart

A Nebraska law criminalizing late term abortions was the focus of the Supreme Court's decision in Stenberg v. Carhart. The Court's majority consisted of five Associate Justices Stephen Breyer, who wrote the opinion and was joined by Associate Justices Stevens, O'Connor, Souter, and Ginsburg. Justice Stevens wrote a concurring opinion, in which Justice Ginsburg joined. Justice O’Connor filed a concurring opinion. Justice Ginsburg filed a concurring opinion, in which Justice Stevens joined.

There were four in dissent, Chief Justice Rehnquist, and Associate Justices Scalia, Thomas, and Kennedy.

Breyer's opening volley lays to rest any notion that the landmark decision of Roe v. Wade would be overturned. He said: 

Associate Justice Stephen Breyer

"We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade; Planned Parenthood of Southeastern Pa. v. Casey. We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case."

The Court considered three established principles in making that application. "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. An “undue burden is … 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.”

"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.'"

The Nebraska statute §28—328(1) provided “No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.”

Partial Birth Abortion was defined as “an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” §28—326(9).

The law further defines “partially delivers vaginally a living unborn child before killing the unborn child” to mean the “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.”

In Nebraska, a person found guilty of violating this law would be guilty of a felony "carrying a prison term of up to 20 years, and a fine of up to $25,000. §§28—328(2), 28—105. It also provides for the automatic revocation of a doctor’s license to practice medicine in Nebraska. §28—328(4)."

The Court found Nebraska's law unconstitutional, affirming the decision of the trial court and the Eighth Circuit Court of Appeals. The original action was brought by Dr. Leroy Carhart seeking declaratory relief.

Nebraska law prohibited one method of abortion. For clarity the Court discussed several different abortion method. About 90% of all abortions occur in the first trimester of pregnancy, before 12 weeks of gestational age, using a method called vacuum aspiration. The procedure’s mortality rates for first trimester abortion are, for example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are also low."

About 10% of all abortions take place in the second trimester, gestational age weeks 12 - 24. In the 1970's second trimester abortions tended to employ the saline injection method, as discussed in Danforth v. Planned Parenthood. Since then "the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E)."

D&E “refers generically to transcervical procedures performed at 13 weeks gestation or later.” American Medical Association, Report of Board of Trustees on Late-Term Abortion.

“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.”

After 15 weeks: "Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”

After 20 weeks: “Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation.”

There are variations in D&E operative strategy; compare ibid. with W. Hern, Abortion Practice 146—156 (1984), and Medical and Surgical Abortion 133—135. However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.

There were two fatal flaws in the Nebraska law. First, the criminal statute did not provide any exception for the health of the mother. Second, the act imposed an undue burden on a woman's ability to choose a D&E abortion, thus unduly burdening her right to choose an abortion.

Justice Stevens said that it made no sense for Nebraska to choose one method of abortion over another. Roe v. Wade's "[h]olding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. 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."

Justice O'Connor probably could not believe her ears when counsel for Nebraska said that the late term "procedure will not, in some circumstances, be “necessary to preserve the life or health of the mother" She 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" in her view.  My bet is that a lady as mature as Justice O'Connor can recall from personal experience a number of women whose deaths were attributed to maternal mortality.  I know I can, and I am a little younger than this distinguished jurist.

Associate Justice Ruthe Bader Ginsberg

Associate Justice Ginsburg quoting the Chief Judge of the Seventh Circuit Court of Appeals, Richard Posner, in the case of Hope Clinic v. Ryan 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.”

Chief Judge Richard Posner of the Seventh Circuit

Chief Justice Rehnquist deferred to the analysis of Justices Kennedy and Thomas in their dissents.

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."

Justices Kennedy and Thomas dissents violently clash with the Court's majority opinion in general and Justice O'Connor's opinion in particular. Rehnquist, 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.

When the Rehnquist branch of the Court write the opinion they are seen as substituting policy for judgment couched as law. When they are in the minority they hurl that barb at the majority. Abortion remains a contentious issue on the Court.

The Court seldom airs its internal conflicts as openly as it does in these cases.

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."

The Abortion Cases Part Ten

In Rust v. Sullivan the Supreme Court took a look at funds for Family Planning under Title X of the Public Health Service Act. The opinion of the Court was handed down by Chief Justice William Rehnquist. He was joined by Associate Justices Byron White, Anthony Kennedy, David Souter, and Nino Scalia.

Unlike their official portrait, the 1991 U.S. Supreme Court was sharply divided

Associate Justice Harry Blackmun wrote a dissenting opinion in which Associate Justice Thurgood Marshall joined and in which Associate Justice Sandra Day O'Connor joined as to Part I. Associate Justice John Paul Stevens joined Blackmun's opinion as to Parts II and III. Associate Justices Stevens and O'Connor filed separate dissenting opinions.

Facial challenges to a statute's constitutionality must demonstrate that the statute is constitutionally infirm as to any and all circumstances. A successful facial challenge to the constitutionality of a law renders that law void. Facial challenges are contrasted to "as applied" challenges which makes the case that the law as applied to a particular plaintiff or set of plaintiffs would be unconstitutional.

Rust v. Sullivan is a case about a facial challenge to the Department of Health and Human Services (HHS) regulations limiting the ability of Title X fund recipients to engage in abortion-related activities. The United States Court of Appeals for the Second Circuit upheld the regulations, finding them to be a permissible construction of the statute as well as consistent with the First and Fifth Amendments to the Constitution.

Here the majority affirms the Court of Appeals.

Congress enacted Title X of the Public Health Service Act (Act) providing for federal funding for family-planning services. The Act authorizes the Secretary of Health and Human Services to "make grants to and enter into contracts with public or non-profit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services." Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate." Section 1008 of the Act, however, provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." That restriction was intended to ensure that Title X funds would "be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities."

The regulations attach three principal conditions on the grant of federal funds for Title X projects. First, the regulations specify that 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." 59.10(a). Forbidden activities include lobbying for legislation that would increase the availability of abortion as a method of family planning, developing or disseminating materials advocating abortion as a method of family planning, providing speakers to promote abortion as a method of family planning, using legal action to make abortion available in any way as a method of family planning, and paying dues to any group that advocates abortion as a method of family planning as a substantial part of its activities.

Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities.

Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. Respondent is the Secretary of the Department of Health and Human Services.

The Court found the language of Title X ambiguous. We need not dwell on the plain language of the statute because we agree with every court to have addressed the issue that the language is ambiguous. The language of 1008 — that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning" — does not speak directly to the issues of counseling, referral, advocacy, or program integrity. If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."

Addressing "Program Integrity" Rehnquist said it was permissible for separate facilities and record keeping be maintained as a way to insure that federal funds were only used in a manner prescribed by the rules imposed by the Secretary of Health and Human Services.

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. The opinion said "The regulations, which govern solely the scope of the Title X project's activities, do not in any way restrict the activities of those persons acting as private individuals. The employees' freedom of expression is limited during the time that they actually work for the project; but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority"

Finally the Court summarily dismissed any claims predicated on denial of a woman's Due Process Rights under the Fifth Amendment. "Under the Secretary's regulations, however, a doctor's ability to provide, and a woman's right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered. It would undoubtedly be easier for a woman seeking an abortion if she could receive information about abortion from a Title X project, but the Constitution does not require that the Government distort the scope of its mandated program in order to provide that information."

The fact that this program was applicable to indigent women did not disturb the majority. "The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency."

Associate Justice Harry Blackmun's called the majority's opinion disingenuous. He said: "Because I conclude that a plainly constitutional construction of 1008 is not only `fairly possible' but entirely reasonable,' [he] would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary's Regulations"

Blackmun rejected the majority's analysis regarding the First Amendment and Fifth Amendment claims.

In the dissent by Associate Justice Stevens, he 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."

In her dissent 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.

Rust v. Sullivan was decided in 1991