IN SEARS v. UPTON THE SUPREME COURT CLARIFIES THE SIXTH AMENDMENT STANDARD OF EFFECTIVE ASSISTANCE OF COUNSEL

Per Curiam is a Latin phrase meaning "speaking for the court." More often than not these opinions speak for a unanimous multi-judge appellate court. No one particular jurist is tasked with writing a signed opinion. Dissenting opinions, typically rare, are signed by the judge disagreeing with the per curiam decision.

Sears v. Upton is, bar none, the most interesting per curiam decision that I've ever read. That is thanks to Associate Justice Scalia's contumaciously stubborn streak!

The long title of the case is Demarcus Ali Sears v. Stephen Upton, Warden [of Georgia's Jackson State Prison]. Mr. Sears is on Death Row for "kidnapping with bodily injury. He is not on Death Row for having murdered anyone.

He was convicted in 1993 of violating Ga. Code Ann. §16–5–40(d)(4) (2006). Sears and an accomplice kidnapped a woman in Georgia. She was killed in Kentucky. The fact of the lady's demise in Kentucky is a statutory aggravating circumstance, under Georgia law, warranting the imposition of a capital sentence. This follows a theory of felony murder.

Felony murder does not require the criminal defendant commit the fatal act, he need only be a perpetrator in a crime where a person died as a direct and proximate result of the underlying crime. He doesn't need to pull the trigger. For instance consider a store being robbed and a police officer becomes involved in a shootout with the criminals. The store clerk is killed by the officer's bullet. The robbers are guilty of Felony Murder. This is Black Letter Law and Demarcus Ali Sears is wrong thinking that the law is unfair.

That last sentence really goes to the heart of the case. The problem with the sentencing is the problem with Sears' cognitive function. More on that later.

Sears launched a categorical Eighth Amendment challenge to his conviction under the kidnapping theory, which the Court declined to address. The Court footnoted that any jurisdictional challenge for Georgia imposing the Death Sentence which occurred in Kentucky was not before them.

The Eighth Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

During the penalty phase of Sears' capital trial, the mitigation phase, the defense presented evidence that this crime was out of character for Sears who had been reared in a loving middle-class home. Several witnesses testified that an imposition of the Death Sentence would adversely affect them.

Anyone who watches crime drama knows that this wasn't a good idea. A 59 year old woman, wife, mother, grandmother, named Gloria Ann Wilbur, was raped and murdered. The convicted defendant's evidence is that his family and friends will be burdened by his execution. That dog don't hunt.

The State turned that argument on the defendant, boy howdy! Here's what they did:

With Sears, the prosecutor told the jury, “[w]e don’t have a deprived child from an inner city; a person who[m] society has turned its back on at an early age. But, yet, we have a person, privileged in every way, who has rejected every opportunity that was afforded him.”

I'd say "Oh Boy How Do You Do!" as an expression of amazement and surprise, but the Southern translation of that is "Boy Howdy!" Sears is portrayed as a typical Ohio youth seized with all the advantages that modern society can offer. But is that true? Yes he came from Ohio. Did Sears' attorney at trial portray a correct depiction of Sears? Did the attorney do a good job? That question is at the crux of the Court's analysis.

Mitigation means to lessen the severe impact of the offense, to partly excuse the crime. It does not mean anything like absolution, which would wash the crime away. Mitigation, that's a noun. Mitigate is a transitive verb. Did Sears' attorney at trial investigate his client? If you don't investigate your client how can you determine the best strategy to pursue in the mitigation, or conversely the worst?

The Trial Court which oversaw Sears' postconviction relief ruled that Sears had made a mitigation defense. That court demonstrated that Sears' mitigation defense was Constitutionally inadequate.

"After finding constitutionally deficient attorney performance under the framework we set forth in Strickland v. Washington, 466 U. S. 668 (1984), the state post conviction court found itself unable to assess whether counsel’s inadequate investigation might have prejudiced Sears... Because Sears’ counsel did present some mitigation evidence during Sears’ penalty phase—but not the significant mitigation evidence a Constitutionally adequate investigation would have uncovered—the state court determined it could not speculate as to what the effect of additional evidence would have been."

So what did the Court say in Strickland v. Washington? Well, that was a case from 1984 where the Supreme Court reversed a Death Penalty case from Florida on Sixth Amendment Grounds.

The Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The abbreviated facts of Strickland have the defendant going on a 10 day crime spree during which time he stabbed 3 persons to death while committing various other crimes. The issue before the Supreme Court was whether Strickland had received the effective Assistance of Counsel required by the Sixth Amendment.

Associate Justice O'Connor delivered the 8 - 1 opinion of the Court, Associate Justice Thurgood Marshall was the lone dissenter. Strickland provides us with a two part test for determining if trial counsel was effective or not.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first that counsel's performance was deficient and, second that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

Those are the two parts of Strickland test, the lawyer underperformed and the deficient lawyering deprived the defendant of a fair trial. Remember that fairness is the essence of Due Process of Law.

Back to Sears. After sentencing the case goes into postconviction relief mode where the judgments and sentencing of the trial court are appealed. During Sears' postconviction proceedings it turns out that the rosy depiction of Sears' upbringing was not based in fact.

His parents provided a combative home filled with their physically abusive relationship. They divorced while Sears was young. Sears had been sexually abused by an adolescent male cousin. His mother's pet name for her children was "Mother's little fuckers." Sears' father was verbally abusive. An art teacher recalled with shock Sears' father severely berating the child at a parent teacher conference. The father also disciplined Sears with age inappropriate military style drills. Sears struggled in school, demonstrating substantial behavior problems from a very young age. By the time Sears reached high school, he was described as severely learning disabled and as severely behaviorally handicapped.

It gets worse. Sears suffered significant frontal lobe abnormalities. Two different psychological experts testified that Sears had substantial deficits in mental cognition and reasoning—i.e., “problems with planning, sequencing and impulse control,” —as a result of several serious head injuries he suffered as a child, as well as drug and alcohol abuse.

Regardless of the cause of his brain damage, his scores on at least two standardized assessment tests placed him at or below the first percentile in several categories of cognitive function, making him among the most impaired individuals in the population in terms of ability to suppress competing impulses and conform behavior only to relevant stimuli.

The assessment also revealed that Sears’ ability to organize his choices, assign them relative weight and select among them in a deliberate way is grossly impaired. Sears lacks the capacity to make good choice, forget about wise choices.

From an etiological standpoint, one expert explained that Sears’ history is replete with multiple head trauma, substance abuse and traumatic experiences of the type expected to lead to these significant impairments.

Sears performed dismally on several of the forensic tests administered to him to assess his frontal lobe functioning. On the Stroop Word Interference Test, which measures response inhibition, id., at 36–37, 99.6% of those individuals in his cohort (which accounts for age, education, and background) performed better than he did.

On the Trail-Making B test, which also measures frontal lobe functioning, Sears performed at the first (and lowest) percentile. Based on these results, the expert’s first-hand observations, and an extensive review of Sears’ personal history, the expert’s opinion was unequivocal: There is clear and compelling evidence” that Sears has “pronounced frontal lobe pathology.

Sears' older brother was a criminal, a convicted drug dealer and user, who introduced Sears to a life of crime. These facts actually are consistent with a mitigation theory portraying Sears as an individual with diminished judgment and reasoning skills, who may have desired to follow in the footsteps of an older brother who had shut him out of his life.

The fact that some of the evidence may have been “hearsay” does not necessarily undermine its value—or its admissibility—for penalty phase purposes. The Court footnoted that "we have also recognized that reliable hearsay evidence that is relevant to a capital defendant’s mitigation defense should not be excluded by rote application of a state hearsay rule."

Competent counsel should have been able to turn some of the adverse evidence into a positive—perhaps in support of a cognitive deficiency mitigation theory. In particular, evidence of Sears’ grandiose self-conception and evidence of his magical thinking, were features, in another well credentialed expert’s view of a “profound personality disorder." This evidence might not have made Sears any more likable to the jury, but it might well have helped the jury understand Sears, and his horrendous acts—especially in light of his purportedly stable upbringing.

Because counsel failed to conduct an adequate mitigation investigation, none of this evidence was known to Sears’ trial counsel. It emerged only during state postconviction relief.

The Trial Court noted that Sears' trial counsel was Constitutionally deficient as to the penalty phase investigation. In the Trial Court's view, the cursory nature of counsel’s investigation into mitigation evidence—“limited to one day or less, talking to witnesses selected by [Sears’] mother”—was “on its face . . . Constitutionally inadequate.”

The lawyer underperformed. Clearly the first prong of the Strickland test has been met. The Supreme Court was surprised at the Trial Court's analysis under the second prong of the Strickland test. Did the deficient lawyering prejudice the defense so much that the proceeding were not fair?

The per curiam opinion says "Although the court appears to have stated the proper prejudice standard, it did not correctly conceptualize how that standard applies to the circumstances of this case. The Trial Court asked whether “there is a reasonable likelihood that the outcome of his trial would have been different if [Sears'] counsel had done more investigation.”

The Trial Court reasoned that since some mitigation evidence was produced during the penalty phase that other cases where little or no mitigation evidence was produced were not on point. The Trial Court said it could not make a reasonable prediction as to whether Sears' defense was so prejudiced by Constitutionally deficient lawyering to render the mitigation phase Constitutionally infirm.

The Supreme Court finds two problems with the Trial Court's analysis. First the Trial Court placed undue reliance on the assumed reasonableness of counsel's mitigation theory, and curtailed its prejudice inquiry. Rather, the Supreme Court says "The court’s determination that counsel had conducted a constitutionally deficient mitigation investigation, should have, at the very least, called into question the reasonableness of this theory." The prejudice inquiry should be pursued.

The second problem was that when the Trial Court found a Constitutionally deficient mitigation then it should have, at minimum, called into question of the reasonableness of counsel's theory. Relying on Wiggins v. Smith, the Court said “counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision . . . because counsel had not ‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background."

One of the reasons I called this the most interesting per curiam decision that I've ever read is because it is rare for disagreements on the Court to break out into open skirmishes. Footnote nine takes a direct shot at Associate Justice Scalia.

9 Channeling powers of telepathy, JUSTICE SCALIA asserts that what the trial court actually decided in this case is that “Sears’ trial counsel presented a reasonable mitigation theory and offered evidence sufficient to support it, so the prejudice inquiry was more difficult—so difficult that Sears could not make the requisite showing.” Post, at 4. Such a highly favorable reading of the trial court’s analysis would be far more convincing had the trial court engaged with the evidence as JUSTICE SCALIA does. But it offered no such analysis in its opinion; indeed, it appears the court did not even conduct any real analysis, explaining that it was “impossible to know what effect” the evidence might have had on the jury.

The Court notices that Associate Justice Scalia chides them in his dissent. Associate Justice Scalia's rancor stems from the per curiam opinion's conclusion that the Trial Court made assumptions rather than judicial findings. The majority rebuffs that saying:

"But our point is that any finding with respect to the reasonableness of the mitigation theory counsel utilized—in this case, family impact—is in tension with the trial court’s unambiguous finding that counsel’s investigation was itself so unreasonable as to be facially unconstitutional. This point is plain in Williams: We rejected any suggestion that a decision to focus on one potentially reasonable trial strategy—in that case, petitioner’s voluntary confession—was “justified by a tactical decision” when “counsel did not fulfill their obligation to conduct a thorough investigation of the defendant’s background.” 529 U. S., at 396. A “tactical decision” is a precursor to concluding that counsel has developed a “reasonable” mitigation theory in a particular case. [emphasis added]"

Recall that when scrutinizing statutes the Court tells us that facial challenges are the most difficult to proove.  The standard for being facially infirm is the inconceivable standard.  It is inconceivable that under any circumstance the statute does not violate the Constitution.  Here the Court is telling us that it is inconceivable under any circumstance that counsel's investigation leads to a Constitutionally sound tactical theory.

The Supreme Court rejects the argument that the reasonableness of the theory is relevant when evaluating the impact of evidence that would have been available and which would likely have been introduced but for counsel's Constitutionally inadequate investigation. The standard is clear, if you are going to try a Capital Case you must look at every conceivable circumstance of the defendant's background. Do not get in a hurry with your theory and place all of your eggs in one basket.

Once the State has proven each and every element of the Capital offense beyond a reasonable doubt to a jury and a guilty verdict has been rendered defense counsel's duty is to fully engage in the mitigation phase of the trial. That cannot be done where counsel is ignorant of the facts of the defendant's life and health.

Then there is Associate Justice Scalia, joined by Associate Justice Thomas. The dissent found no error of law in the proceedings below. Remanding this case, as the Court has done, is purposeless, according to Associate Justice Scalia. He says the Trial Court has already found that "no reasonable likelihood that the mitigation evidence...would have persuaded a jury to change its mind about the death sentence for this brutal rape-murder."

Associate Justice Scalia's thinking is troubling. The jury is not to have made up its mind as to the death sentence or any other punishment until after evidence is presented to them during the mitigation phase of the trial. They are sent to deliberate on that evidence. Their mind is to be made up during that deliberation. Associate Justice Scalia presumes the jurors have violated their oaths to keep their minds open on this issue until the sentencing part of the case is presented to them.

Associate Justice Scalia attacks the Court's implementation of the two pronged test from Strickland. Both the dissent and the per curiam opinion agree that the first part of the Strickland test was properly applied. The dispute is about the second part, whether the defense was prejudiced to the point of rendering the case unfair.

Scalia challenges the Court's finding that the Trial Court made two errors determining prejudice. As noted above, Scalia says the Trial Court made judicial findings and did not engage in making assumptions. Scalia gives deference to the Trial Court.

Then Scalia feathers his argument claiming the Court's second error is encased within the first. The Court claims, says Scalia, that the Trial Court limited its prejudice inquiry under Strickland where there was little or no mitigation evidence presented. The Supreme Court holds that the Trial Court erred by determining that presentation of some mitigation evidence foreclosed further prejudice inquiry. Scalia says that is not a fair reading of the case. "The state court did not hold that a defendant could never suffer prejudice whenever his counsel provided any mitigation evidence."

That appears to me as a distinction without a difference. During the postconviction phase of the case the defense is making its last arguments. Habeas Corpus relief does not provide for more than one bite at the apple. When the Appellate Court held that Sears' was not prejudiced by his attorney's ineffective assistance, they held that Sears, absent relief from the Federal Judiciary, could never suffer prejudice in this case.

A word about jurisdiction, the Court addressed the subject in footnote one. "Although this is a state-court decision, it resolved a federal issue on exclusively federal-law grounds. We therefore have jurisdiction. 28 U. S. C. §1257; see also Padilla v. Kentucky, 559 U. S. ___ (2010) (reviewing state postconviction decision raising Sixth Amendment question)."

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."