KANSAS HOUSE OFFERS A HOST OF ABORTION RELATED BILLS DESIGNED TO VIOLATE THE ESTABLISHMENT CLAUSE

My best guess is that if you asked most Americans, or for that matter most Kansans, what the Establishment Clause is that the most common answers would be in the range of "don't know" to "something in the Constitution."  The Establishment Clause is one of two clauses in the First Amendment to the Constitution dealing with religion.  The other is the Free Exercise Clause.

The Establishment Clause says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  The Establishment Clause applies to the States of the Union through the Fourteenth Amendment.   You can effectively read the clause as "Kansas shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" because that's the way a federal judge will read it.

Most folks will begin to remember what Thomas Jefferson and James Madison said in their writings on this topic.  They spoke about a wall of separation between church and state.  Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.

In 1947 the Supreme Court began to weigh in on the Establishment Clause.  Justice Black used the wall of separation analogy.  The case is called Everson v. Board of Education and the issue was whether reimbursing parents for the cost of transporting school children to and from school violated the Establishment Clause where the students were taken back and forth to parochial schools.  Black said paying the parochial schools directly would be a violation, but that reimbursing the parents furthered a legitimate state secular interest in safely transporting children.

Everson tells us, because all nine members of the Supreme Court told us, that the Establishment Clause reaches far beyond a state adopting a particular religion as that state's religion.  This wall separating church and state is not made of granite.  Think of it as an old plaster wall in a house where the foundation has settled.  There are cracks, sometimes there is light or air moving through the wall. 

Consider prayer and religious education for public school children.  A knee jerk bright line approach would say never, not at all, you can't do that.  Two cases show how the answer is sometimes yes and sometimes no.  McCollum v. Board of Education, is a 1948 case finding eight justices more or less agreeing (Justice Black delivered the opinion of the Court, Justice Frankfurter delivered a concurring opinion joined by Justices Jackson, Rutledge, and Burton.  Justice Jackson delivered a separate concurring opinion, and Justice Reed dissented).  In McCollum religious instruction was provided in public schools and the Court said this was a clear violation of the Establishment Clause.

The other side of the coin, off premises religious education, gets a different result in Zorach v. Clauson where public school students were given release time to attend religious instruction in the churches and synagogues of their choice.  In a 6 to 3 decision the Court said that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Justice Douglas, who wrote the majority opinion, argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."  Douglas also said, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." (Emphasis added).

Reading those early cases we see that the discussion of the Establishment Clause tended to focus on children and education.  Today we are on the verge of new analysis of the Establishment Clause, that is because the religiously motivated Anti-Abortion forces in Kansas are proposing to excise the language of science in the state laws regarding abortion and replace that language with the language of religion.  This insidious encroachment effectively removes the objective based scientific standards of gamete, zygote, embryo, and fetus with the all inclusive, straight from the Theology in Opposition to Roe v. Wade, term "unborn child."

Justice Stevens' opinion in Webster v. Reproductive Health Center, in which he concurred in part and dissented in part, gives the Kansas Legislature words to heed.  He said, "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, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). 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. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)." (Emphasis added).

When it comes to abortion and abortion related statutes, the Kansas Legislature is essentially doing a cut and paste job.  They are intent on cutting scientific language and pasting religious dogma, their insidious encroachment of religious text serves no secular purpose thus violating the Establishment Clause.

The offending bills include House Substitute for Senate Bill Number 34, Substitute for Senate Bill Number 36, House Bill Number 2035, House Bill Number 2218, Substitute for House Bill 2242, House Bill 2292, House Bill 2337, and House Bill 2377.  And do not forget House Concurrent Resolution Number 5029.  Although this ill-conceived constitutional amendment does not use the language of "unborn child" it clearly establishes gametes, zygotes, embryos, and fetuses as "persons" thus making another insidious encroachment, science be damned, of religion into law.

It is one thing to be either pro-life or pro-choice.  It is altogether another thing to be an anti-abortion extremist intent on supplanting the law of the land with a theology developed to counter the Supreme Court's opinion in Roe v. Wade.  Here the anti-abortion forces and their minions in the Kansas Legislature are posed to wreck havoc on women and force the State of Kansas into needless and expensive federal litigation. 

Adequate restraints on abortion already exist without taking the religious views of some Christians and forcing them upon the balance of society.  A July 2011 Gallup Poll found 26% of Americans think abortion should be legal under any circumstance, 51% think abortion should be legal under certain circumstances, and a minority view with 20% thinking abortion should be illegal in all circumstances. 

It is time for saner minds and adult thinking to prevail in the Kansas Legislature, it is time to reject these extreme attempts to violate the Establishment Clause with respect to abortion related laws in Kansas.  Will the grown ups please take charge!

KANSAS ANTI-ABORTION HOUSE MEMBERS INTRODUCE AN ILL-CONCEIVED CONSTITUTIONAL AMENDMENT TO ESTABLISH THEIR RELIGIOUS IDEA THAT LIFE BEGINS AT CONCEPTION INTO LAW

Kansas Proposed Constitutional Amendment is A Really Bad Idea

House Concurrent Resolution Number 5029, called the "Human Life Amendment" by its proponents demonstrates how far the anti-abortion crowd will go to establish their religious view of when life begins, and when that life ought to be considered a person.  These extremists are not only challenging Roe v. Wade and a woman's right to make personal and private decisions for herself.  These extremists are also challenging Griswold v. Connecticut.

Connecticut passed a law saying it was illegal to use any drug, medicinal article or instrument for the purpose of preventing conception and that any person who assists, abets, counsels, causes, hires or commands another to commit any offense, under that law, may be prosecuted and punished.  Okay so if you use the pill, especially if you use the pill, you and your doctor, and your doctor's staff, and your pharmacist could all be thrown into jail under a Connecticut style law.

And what is it that the anti-abortion crowd wants written into the Kansas Constitution? They want the first section of the Constitution of Kansas amended to say (and the changes are in italics):

"§ 1. Equal rights. All men are possessed of equal and inalienable

natural rights, among which are life, liberty, and the pursuit of happiness.

Recognizing the authority of the state of Kansas to exercise its police

power and it sovereign right to adopt individual liberties in the

constitution of the state of Kansas more expansive than those conferred by

the constitution of the United States, the state of Kansas shall hereby

guarantee the inalienable rights, equal protection and due process of law

of every human being from the beginning of the biological development of

that human being, including fertilization."

In case you didn't know birth control uses hormones to cause the fertilized egg to detach from the lining of the uterus.  That means that using the pill, among other forms of birth control, will be outlawed in Kansas.

It is ironic that this proposal wants to extend the Constitutional protections of due process of law to gametes, zygotes, embryos, and fetuses.  Why?  Well, as of today the Kansas Constitution doesn't guarantee due process of law to anyone at all.

Justice Blackmun in his dissent in Webster v. Reproductive Health Center, sheds light on the Constitutional infirmity H.C.R. 5029 will eventually face if it is adopted by the state of Kansas.  Blackmun said:

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

That's right, St. Thomas Aquinas, a Doctor of the Church, did not subscribe to this notion that life begins at conception.  That religious notion is new, it is a theology developed after the opinion in Roe v. Wade was rendered.   

The Abortion Cases Part Nine

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

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

Chief Justice William Rehnquist

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Associate Justice Nino Scalia

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

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

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

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

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

Webster v. Reproductive Health Center was decided in 1989.

The Abortion Cases Part Eight

The sharp division of the Court continued with the 5-4 decision in Thornburgh v. American College of Obstetricians & Gynecologists. Associate Justice Harry Blackmun delivered the opinion in which Justices Brennan, Marshall, Powell, and Stevens joined, with Stevens filing a separate concurring opinion. Chief Justice Burger filed a dissenting opinion. Justice White filed a dissenting opinion in which Justice Rehnquist joined. Justice O'Connor filed a dissenting opinion in which Justice Rehnquist joined.


Pennsylvania enacted a statute, the Pennsylvania Abortion Control Act of 1982. Appellees, the American College of Obstetricians & Gynecologists brought suit in Federal District Court seeking declaratory and injunctive relief.

The Court of Appeals granted appellees request for injunctive relief by enjoining enforcement of the entire act. Then the Court of Appeals held that part of the Pennsylvania was unconstitutional, relying on Planned Parenthood Association v. Ashcroft, City of Akron v. Akron Center for Reproductive Health, and Simopoulos v. Virginia.

The Court of Appeals ruled that §3205 was unconstitutional with respect to the provisions of informed consent requiring the woman be informed of:

 the name of the physician who will perform the abortion
 the particular medical risks of the abortion procedure to be used and of carrying her child to term
 that there may be "detrimental physical and psychological effects
 medical assistance benefits may be available for prenatal care, childbirth, and neonatal care
 the father is liable to assist in the child's support
 printed materials are available from the State that describe the fetus and list agencies offering alternatives to abortion
 § 3208 that requires such printed materials to include a statement that there are agencies willing to help the mother carry her child to term and to assist her after the child is born
 a description of the probable anatomical and physiological characteristics of an unborn child at "two-week gestational increments
 3214(a) and (h) that require the physician to report, among other things, identification of the performing and referring physicians, information as to the woman's residence, age, race, marital status, and number of prior pregnancies, and the basis for any judgment that a medical emergency existed or for any determination of nonviability,
 and the method of payment for the abortion, and further provide that such reports shall not be deemed public records, but shall be available for public inspection and copying in a form that will not lead to disclosure of the identity of any person filing a report
 § 3211(a) that requires the physician, after the first trimester, to report the basis for his determination that a child is not viable;
 §3210(b) that requires a physician performing a postviability abortion to exercise the degree of care required to preserve the life and health of any unborn child intended to be born and to use the abortion technique that would provide the best opportunity for the unborn child to be aborted alive unless it would present a significantly greater medical risk to the pregnant woman's life or health
 § 3210(c) that requires that a second physician be present during an abortion performed when viability is possible, which physician is to take all reasonable steps necessary to preserve the child's life and health.

Powell's opinion ruled that The States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies. The provisions of the Pennsylvania Act that the Court of Appeals invalidated wholly subordinate constitutional privacy interests and concerns with maternal health to the effort to deter a woman from making a decision that, with her physician, is hers to make.

The printed materials required by §§ 3205 and 3208 are nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician. Similarly, § 3205's requirement that the woman be advised that medical assistance may be available, and that the father is responsible for financial assistance in support of the child, are poorly disguised elements of discouragement for the abortion decision. And § 3205's requirements that the physician inform the woman of "detrimental physical and psychological effects" and of all "particular medical risks" are the antithesis of informed consent.

The scope of the information required by §§ 3214(a) and (h) and 3211(a) and its availability to the public belie any assertions by the State that it is advancing any legitimate interest. The reporting requirements of those sections raise the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, they pose an unacceptable danger of deterring the exercise of that right, and must be invalidated.

Section 3210(b) is facially invalid as being unsusceptible to a construction that does not require the mother to bear an increased medical risk in order save her viable fetus. Section 3210(c), by failing to provide a medical emergency exception for the situation where the mother's health is endangered by delay in the second physician's arrival, chills the performance of a late abortion, which, more than one performed at an earlier date, tends to be under emergency conditions

Justice John Paul Stevens

Associate Justice John Paul Steven's relied on stare decisis, the precedence of former cases on point with the instant opinion. Justice Stevens also took Associate Justice Byron "Whizzer" White to task for his dissent. White wrote a concurrent opinion in the Griswold case.

Justice Steven's writes that "In the final analysis, the holding in Roe v. Wade presumes that it is far better to permit some individuals to make incorrect decisions than to deny all individuals the right to make decisions that have a profound effect upon their destiny. Arguably a very primitive society would have been protected from evil by a rule against eating apples; a majority familiar with Adam's experience might favor such a rule. But the lawmakers who placed a special premium on the protection of individual liberty have recognized that certain values are more important than the will of a transient majority."

Chief Justice Burger's dissent said: "In discovering constitutional infirmities in state regulations of abortion that are in accord with our history and tradition, we may have lured judges into "roaming at large in the constitutional field." Griswold v. Connecticut, (Harlan, J., concurring). The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today's holding really mean what they seem to say, I agree we should reexamine Roe."

"The Court's astounding rationale for this holding is that such information might have the effect of "discouraging abortion," ante at 762, as though abortion is something to be advocated and encouraged. This is at odds not only with Roe, but with our subsequent abortion decisions as well. As I stated in my opinion for the Court in H. L. v. Matheson, 450 U.S. 398 (1981), upholding a Utah statute requiring that a doctor notify the parents of a minor seeking an abortion:

The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions. To the contrary, state action "encouraging childbirth except in the most urgent circumstances" is "rationally related to the legitimate governmental objective of protecting potential life."

Associate Justice Byron "Whizzer" White during his college days

Associate Justice Byron Raymond "Whizzer" White's dissent is a blockbuster. He says that it is time to overrule Roe v. Wade. White's opinion speaks to refining substantive Due Process of Law. He writes: "In most instances, the substantive protection afforded the liberty or property of an individual by the Fourteenth Amendment is extremely limited: state action impinging on individual interests need only be rational to survive scrutiny under the Due Process Clause, and the determination of rationality is to be made with a heavy dose of deference to the policy choices of the legislature. Only "fundamental" rights are entitled to the added protection provided by strict judicial scrutiny of legislation that impinges upon them. I can certainly agree with the proposition -- which I deem indisputable -- that a woman's ability to choose an abortion is a species of "liberty" that is subject to the general protections of the Due Process Clause. I cannot agree, however, that this liberty is so "fundamental" that restrictions upon it call into play anything more than the most minimal judicial scrutiny."

White's dissent cuts to the heart of a woman's right to privacy. White then takes the discussion to the nature of a fetus. "However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy."

White's argument makes the State's interest compelling both pre and post viability. "The governmental interest at issue is in protecting those who will be citizens if their lives are not ended in the womb. The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant. The State's interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom. Accordingly, the State's interest, if compelling after viability, is equally compelling before viability."

Justice O'Connor's dissent dealt largely with the application of equitable principles on how, what, why, and when the courts may grant injunctive relief. She wrote an essay on the Law of Remedies. Of importance in our look at these Abortion Cases is her displeasure with the majority's use of her standard of undue burden.

She writes: "The Court today goes well beyond mere distortion of the 'unduly burdensome' standard. By holding that each of the challenged provisions is facially unconstitutional as a matter of law, and that no conceivable facts appellants might offer could alter this result, the Court appears to adopt as its new test a per se rule under which any regulation touching on abortion must be invalidated if it poses 'an unacceptable danger of deterring the exercise of that right.' Under this prophylactic test, it seems that the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it. Simultaneously, the Court strains to discover 'the anti-abortion character of the statute.' [A]s JUSTICE WHITE points out, invents an unprecedented canon of construction under which 'in cases involving abortion, a permissible reading of a statute is to be avoided at all costs.'(dissenting). I shall not belabor the dangerous extravagance of this dual approach, because I hope it represents merely a temporary aberration, rather than a portent of lasting change in settled principles of constitutional law. Suffice it to say that I dispute not only the wisdom, but also the legitimacy, of the Court's attempt to discredit and preempt state abortion regulation regardless of the interests it serves and the impact it has."

Because the State of Pennsylvania did not ask the Court to reconsider or to overrule Roe v. Wade Justice O'Connor declined to address the question.

Thornburgh v. American College of Obstetricians & Gynecologists was decided in 1985.

The Abortion Cases Part Six

Akron, Ohio, in City of Akron v. Akron Center for Reproductive Health, passed an ordinance regulating abortions. The majority opinion was written by Associate Justice Lewis F. Powell. The Court reaffirmed that the "State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, 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." Further, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered."

The Court considered these aspects of the Akron ordinance:

(i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital

(ii) Section 1870.05 sets forth requirements for notification of and consent by parents before abortions may be performed on unmarried minors.

(iii) Section 1870.06 requires that the attending physician make certain specified statements to the patient "to insure that the consent for an abortion is truly informed consent."

(iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed.

(v) Section 1870.16 requires that fetal remains be "disposed of in a humane and sanitary manner."

The portion of the Akron ordinance requiring second trimester abortions to be performed in a hospital, §1870.03, was invalidated because the requirement placed an impermissible obstacle in the path of women seeking abortions. This unreasonably impinged on a woman's Constitutionally protected right to terminate pregnancy.

The Court invalidated the parental notification section of the Akron ordinance, §1870.05. This section imposed a blanket requirement, without regard for the maturity of the minor to make the decision for herself. The ordinance lacked alternative measures required by Bellotti. Stay tuned, this won't be the last case for the City Akron regarding parental notification

The Court affirmed the Court of Appeals in finding Constitutionally infirm that the portion of the ordinance, §1870.06 (b), where the physician was required to inform the mother that unborn child is a human child from the moment of conception. This requirement was "inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions."

Then the Court affirmed the validity of §1870.06 (c), the portion of the ordinance where the information regarding the risks of the procedure, and shared medical judgments regarding the decision to abort or carry the fetus to term. The section was struck down because it did not permit anyone other than the physician to communicate this information to the patient.

The 24 hour waiting period was struck down as being arbitrary. Powell said that "[i]n accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision."

The Court struck down as impermissibly vague §1870.16 requiring humane disposition of fetal remains. What humane meant was important because failure to comply triggered a criminal sanction. Were the physicians required to provide for embryonic funerals? The Court said that before conduct is criminalized, the actus reus or the criminal act must be set forth specifically.

Associate Justice Sandra Day O'Connor

Associate Justice Sandra Day O'Connor wrote a dissenting opinion She addressed the self collapsing nature of the decision in Roe v. Wade. The three trimester stages designated under Roe was unworkable because advances in science kept moving back the viability date where the fetus could survive ex utereo. These advancements kept moving back to the date where the states' interest in preserving human life attached.

Justice O'Connor's opinion would replace the trimester test with the unduly burdensome standard the Court used in Maher v. Roe. Here the Court rules that it has an interest in maternal health as well as in potential human life. O'Connor says " the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy."

Not every statutory scheme or regulation need be examined under strict scrutiny employing the compelling state interest test with its requirement that the state action be narrowly tailored. Rather, as the Court had ruled in Carey v. Population Services, a case about contraceptives, "It was necessary that the state law impose a significant burden on a protected right, or that it burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision."

O'Connor said "the Court recognizes that even a "significant obstacle" can be justified by a "reasonable" regulation." She goes on to say " The "undue burden" required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting "compelling state interest" standard."

City of Akron v. Akron Center for Reproductive Health was decided in 1983.

The Abortion Cases Part Five

Harris v. McRae launched a Constitutional challenge to Title XIX asking whether it violated the right to privacy, the Due Process Clause of the Fifth Amendment, or the Religion Clauses of the First Amendment.

Associate Justice Potter Stewart

Associate Justice Potter Stewart delivered the opinion for the Court's 5 to 4 majority in a case that brought a direct challenge to the Hyde Amendment. That amendment provides that no federal dollars will be spent to fund abortions.

Justice Stewarts opinion said Title XIX does not require a participating State to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment

Henry Hyde, author of the Hyde Amendment

The funding restrictions of the Hyde Amendment do not impinge on the "liberty" protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, to include the freedom of a woman to decide whether to terminate a pregnancy.

The Hyde Amendment places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. Cf. Maher v. Roe.

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, and indigency falls within the latter category.

Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.

Nor does the Hyde Amendment violate the Establishment Clause of the First Amendment. The fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene that Clause.

Appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise Clause of the First Amendment. The named appellees consisting of indigent pregnant women suing on behalf of other women similarly situated lack such standing because none alleged, much less proved, that she sought an abortion under compulsion of religious belief.

The Hyde Amendment does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.

Statutory analysis begins with a presumption of constitutional validity where the statutory classification does not directly impinge on a right or liberty protected by the Constitution. That presumption quickly fades if the classification is predicated on criteria that are "suspect," the Hyde Amendment is not predicated on a constitutionally suspect classification. Maher v. Roe, supra. Although the impact of the Amendment falls on the indigent, that fact does not itself render the funding restrictions constitutionally invalid, for poverty, standing alone, is not a suspect classification.

Where, as here, Congress has neither invaded a substantive constitutional right or freedom nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. The Hyde Amendment satisfies that standard, since, by encouraging childbirth except in the most urgent circumstances, it is rationally related to the legitimate governmental objective of protecting potential life.

Harris v. McRae was decided in 1980.

The Abortion Cases Part Four

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v, Danforth he said the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy."

Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent..

We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

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.

In Maher the Court held that Connecticut placed no obstacles in the pregnant woman's path to an abortion. The statute did not impinge upon the fundamental right recognized in Roe v Wade. Associate Justice Lewis F. Powell delivered the opinions for the Court in these 6 to 3 decisions.

Associate Justice Lewis F. Powell

Powell said The Equal Protection Clause does not require a State participating in the Medicaid program to pay the expenses incident to nontherapeutic abortions for indigent women simply because it has made a policy choice to pay expenses incident to childbirth. Financial need alone does not identify a suspect class for purposes of equal protection analysis.

The extent of the fundamental right recognized in Roe was distinguished. That right implies no limitation on a State's authority to make a value judgment favoring childbirth over abortion and to implement that judgment by the allocation of public funds. An indigent woman desiring an abortion is not disadvantaged by Connecticut's decision to fund childbirth; she continues as before to be dependent on private abortion services.

A State is not required to show a compelling interest for its policy choice to favor normal childbirth. Connecticut's regulation is rationally related to and furthers its "strong and legitimate interest in encouraging normal childbirth," citing Beal v. Doe. Subsidizing costs incident to childbirth is a rational means of encouraging childbirth. States, moreover, have a wide latitude in choosing among competing demands for limited public funds.

Since the Court found no fundamental right being affected it used the rational means test rather than the heightened compelling state interest test, with its restrictive component requiring the statute to be narrowly tailored.

Here, a prior written request for the abortion procedure was upheld. Since it is not unreasonable for a State to insist upon a prior showing of medical necessity to insure that its money is being spent only for authorized purposes, the District Court erred in invalidating the requirements of prior written request by the pregnant woman and prior authorization by the Department of Social Services for abortions. Although similar requirements are not imposed for other medical procedures, such procedures do not involve the termination of a potential human life.

The Poelker case came next. Justice Powell relied on the Maher decision when discussing Saint Louis' policy. The policy of denying city funds for abortions such as that desired by Doe is subject to public debate and approval or disapproval at the polls. We merely hold, for the reasons stated in Maher, that the Constitution does not forbid a State or city, pursuant to democratic processes, from expressing a preference for normal childbirth as St. Louis has done.

The issue in Beal v, Doe focuses on whether Title XIX of the Social Security Act require states that participate in the Medicaid program to fund the cost of nontherapeutic abortions. This case originated in Pennsylvania.

Powell's opinion for the 6 to 3 court said nothing in the language of Title XIX requires a participating State to fund every medical procedure falling within the delineated categories of medical care. Each State is given broad discretion to determine the extent of medical assistance that is "reasonable" and "consistent with the objectives" of Title XIX

The State, Powell said, has a strong interest in encouraging normal childbirth that exists throughout the course of a woman's pregnancy, and nothing in Title XIX suggests that it is unreasonable for a State to further that interest. It therefore will not be presumed that Congress intended to condition a State's participation in Medicaid on its willingness to undercut that interest by subsidizing the costs of nontherapeutic abortions.

Powell said that when Congress passed Title XIX, nontherapeutic abortions were unlawful in most States, a fact that undermines the contention that Congress intended to require -- rather than permit -- participating States to fund such abortions. Moreover, the Department of Health, Education, and Welfare, the agency that administers Title XIX, takes the position that the Title allows, but does not mandate, funding for such abortions

The Court did not reach the issue of whether Pennsylvania's program under which financial assistance is not provided for medically necessary abortions unless two physicians in addition to the attending physician have examined the patient and have concurred in writing as to the medical necessity of the abortion interferes with the attending physician's medical judgment in a manner not contemplated by Congress should be considered on remand.

Maher v. Roe, Beal v, Doe, and Poelker v. Doe were decided in 1977.

The Abortion Cases Part Three

The decision in Roe spoke about viability of the fetus as the triggering mechanism for the State's interest in the potential life of the fetus to justify more regulations regarding abortion. The viability issue is further discussed in the case of Planned Parenthood of Central Missouri v, Danforth.

John C. Danforth, Clarence Thomas, and Strom Thurmond

Associate Justice Blackmun again delivered the opinion of a sharply divided Court. It was a 5 to 4 decision, although Justice Stevens concurred in part and dissented in part. So maybe it was more like a 5+ to a 4- decision. The issues in the case revolved around Missouri's abortion statute. John C. Danforth was the Attorney General of the State of Missouri.

The Court ruled that the definition of viability in the Missouri statute did not conflict with the definition in Roe v. Wade. Missouri's definition was that viability meant the fetus is potentially able to live outside the mother's womb, albeit with artificial aid, and is presumably capable of meaningful life outside the mother's womb.

The issues of consent to the abortion were likewise litigated in Planned Parenthood of Central Missouri v, Danforth, The Court said that Missouri could require written consent by the woman, or her parents if she is under 18 and single. These provisions do not apply in emergency situations affecting the life of the mother.

Blackmun said: " The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent."

The Court ruled on whether the State could require the spouse's consent. The decision was that the Missouri cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.

The Court also said no to the requirement of parental notification. The State may not constitutionally impose a blanket parental consent requirement, as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must [p54] be left to the medical judgment of the pregnant woman's attending physician."

The Court then struck down Missouri's ban on the most commonly used abortion technique, saline amniocentesis.

Blackmun said the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional.

Missouri's statute contained a reporting requirement. This provision was upheld. The Court said the reporting and recordkeeping requirements can be useful to the State's interest in protecting the health of its female citizens. These reports may be of medical value and are not constitutionally offensive in themselves, particularly in view of reasonable confidentiality and retention provisions. They thus do not interfere with the abortion decision or the physician-patient relationship. It is assumed that the provisions will not be administered in an unduly burdensome way, and that patients will not be required to execute spousal or parental consent forms in accordance with invalid provisions of the Act.

Missouri's law required the physician to preserve the life of the fetus during all stages of pregnancy. The Court rejected this part of the law. The first sentence of § 6(1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results," does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. This is an example of the State not having an elevated interest in the fetus, the pre-viability stage.

Planned Parenthood of Central Missouri v Danforth was decided in 1976.

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v. Danforth he said the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy." Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.. We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

The Abortion Cases - Part Two

The Texas laws at the heart of Roe v. Wade proscribed procuring or attempting an abortion except on medical advice for the purpose of saving the mother's life.

There were numerous appellants in the cause. Roe was a single woman who brought a class action suit challenging the constitutionality of the Texas statutes. Halford was a physician with two state criminal cases charging him with violating the Texas statutes, he was allowed to intervene in the case. The Does were a childless married couple, the wife having health issues, and wanted to avoid pregnancy.

Roe, and members of the class action lawsuit were deemed to have presented judiciable controversies to the Court. The Does and Halford did not have standing to sue.

The Wade in Roe v. Wade was Dallas County District Attorney Henry Wade.

I have often heard others say that Roe v. Wade was wrongfully decided. I disagree. This case held that State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

Associate Justice Harry Blackmun

The opinion of the Court's 6 to 3 majority was delivered by Associate Justice Harry Blackmun. He said that the interest of the State escalated as the pregnancy, and the attendant fetal development, progressed. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician .

For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

For the stage 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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

So, if you think about it, the qualified right to an abortion, under Roe v. Wade, is tenuous because medical science is advancing fetal viability, ex utero, into the second trimester.  Therefore the State's interest in the potential life of the fetus attaches earlier in the pregnancy. Roe v. Wade does not make the right a woman has in her body absolute when it comes to pregnancy.  Likewise the State's interest does not overcome the preservation of the mother's life or health.

For those who are opposed to abortion, I suggest they direct their enormous energy and resources to those advancements in medical science which will increase the state's interest in regulating abortion. The foes of abortion rights must constrain themselves and quit harassing women, killing doctors, and committing other acts of domestic terrorism.

Associate Justice Oliver Wendell Holmes

Those who just can't get over the fact that the Supreme Court can overrule State law as violating the Constitution, need to read the reference to Justice Oliver Wendell Holmes' dissent in Lochner v. New York, with which he prefaced his opinion. " [The Constitution is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

This case is as much about privacy as it is about abortion. In a lengthy discourse Blackmun addressed the history of abortion. He considered Ancient Attitudes, the Hippocratic Oath, the Common Law, English Statutory Law, The American Law, The position of the American Medical Association, and the position of the American Public Health Association,

Further on in the opinion Blackmun engages in a length discourse about what, or when, a person becomes a person. This analysis includes a healthy dose of what religion has to say on the topic. Like I said, this is a well reasoned opinion.

Blackmun properly noted that the Constitution does not explicitly mention the word privacy in its text. That doesn't mean privacy is not a protected interest. Blackmun cited a litany of cases backing up this point.

The opinion said "this right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

Blackmun goes on to say "[w]e, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation."

Roe v. Wade was decided in 1973.

Doe v. Bolton was a companion case to Roe v. Wade. Again Justice Blackmun delivered the opinion of the Court. Doe affirmed the decision in Roe that a woman's right to an abortion is not an absolute right. The case originated in Georgia and required that a physician's decision to perform an abortion must rest upon "his best clinical judgment" of its necessity. The Court said this requirement was not unconstitutionally vague since the medical decision is made in the light of all the attendant circumstances.

The Georgia Statute contained three procedural requirements which the Court said violated the Fourteenth Amendment. The statute required the abortions to be performed at hospitals with Joint Commission on Accreditation of Hospitals. Georgia failed to demonstrate why abortions needed to be performed at hospitals, let alone accredited hospitals.

Georgia's law interposed a hospital committee's approval as roadblock to obtaining an abortion. The committee was created to protect the hospital, not the patient. The Court said: " We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State."

Using similar reasoning the Court said that requiring acquiescence by two co practitioners also has no rational connection with a patient's needs, and unduly infringes on her physician's right to practice.

The Georgia statute had a residence requirement provision. The Court the residency requirement violated the Privileges and Immunities Clause by denying protection to persons who enter Georgia for medical services there.

Doe v. Bolton was decided in 1973.

The Abortion Cases - Part One

Supreme Court Nominee Elena Kagan

This week the spotlight will be on abortion cases. When the Congress returns the Senate will eventually get to work on hearings for President Obama's second pick to fill a vacancy on the United States Supreme Court, Elena Kagan.

Along the seismic fault line which abortion has become lay two great opposing forces. One is the anti-abortion crowd, whose extreme members bomb clinics and assassinate physicians. The other is the group that think all abortions should be permitted all the time. Both sides stand firm in their conviction, both sides want the law to something other than it is.

Today we get a history lessons about procreative rights with a focus on the law as the United States Supreme Court has interpreted it. We speak about procreative rights because the pertinent lineage of the law precedes the decision in Roe v. Wade.

Our review begins on the flip side a State prohibiting abortion. Once upon a time the folks widely known for producing manure by tightly squeezing a Buffalo nickel got tired of habitual criminals making babies. The issue hit the Supreme Court in the matter of Skinner v. Oklahoma.

Associate Justice William O. Douglas

The majority opinion was written by Associate Justice William O. Douglas. The Court decided to review the Oklahoma statute because "[t]his case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race-the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari."

Under Oklahoma's Criminal Sterilization Act the state to was permitted to sterilize a person who had been convicted three or more times of crimes amounting to felonies involving moral turpitude.

In his opinion for a unanimous Court Douglas said: "[t]he instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of 'equal protection of the laws is a pledge of the protection of equal laws.' Yick Wo v. Hopkins, 1187 U.S. 356, 369. When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U.S. 337. Sterilization of those who have thrice committed grand larceny with immunity for those who are embezzlers is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, 'with reference to the time when the fraudulent intent to convert the property to the taker's own use' arises. Riley v. State, supra. We have not the slightest basis for inferring that that line has any significance in eugenics nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420, 421, 204 N.W. 140, 40 A.L.R. 515. In Buck v. Bell, supra, the Virginia statute was upheld though it applied only to feebleminded persons in institutions of the State. But it was pointed out that 'so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached. Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a 'trespass' (Bishop, Criminal Law, 9th Ed., vol. 1, 566, 567) based on distinctions which are 'very largely dependent upon history for explanation' (Holmes, The Common Law, p. 73) could readily become a rule of human genetics.

Skinner v. Oklahoma was decided in 1942.

Associate Justice William O. Douglas also delivered the opinion of the Court's 7-2 majority in the matter of Griswold v. Connecticut. Connecticut passed a statute which forbade family planning options using contraception. Estelle Griswold was the Executive Director of the Planned Parenthood League of Connecticut. The pertinent question was whether Connecticut's statute violated the privacy of married couples on the issue of contraception.

Estelle Griswold

Justice Douglas said: "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation." Gee, doesn't that sound a lot like Justice Sotomayor in Hui v. Casteneda, see: the blog post on this site for June 3rd.

For those interested in a primer on the origins of the right to privacy from the Constitutional Law perspective, this decision is a must read.

The ultimate answer was that Connecticut's statute was overly broad, a state may only regulate a Fundamental Right to achieve a legitimate state interest when the statute, or regulation, is narrowly tailored. Douglas, speaking for the Court said: "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions."

Griswold v. Connecticut was decided in 1965.

Justice Hugo Black

In the case of United States v. Vuitch came on appeal from the United States District Court for the District of Columbia. Milan Vuitch was a physician who was charged with violating the District of Columbia's law prohibiting abortions. The District Court ruled the statute was unconstitutional since the word "health" was overly vague; and that once the abortion was proved the burden shifted from the District to the doctor to prove the health of the mother required the procedure.

Associate Justice Hugo Black delivered the Court's opinion. He disagreed with the District Court. The opinion explained how the word health, in the context of medical procedures, was easily understood considering general usage and modern understanding. The term is broad enough to encompass psychological as well as physical well being. The case was reversed and remanded.

United States v. Vuitch was decided in 1971.

The case of Eisenstadt v, Baird presented the issue of privacy. William Baird gave a lecture at Boston University on population control. After the lecture he gave a young woman a package of "Emko vaginal foam." He was charged with violating Massachusetts' CRIMES AGAINST CHASTITY, first for giving the lecture and secondly for giving the contraceptive foam to a single person.

Justice William J. Brennan

The question asked was whether Baird 's conduct was protected by the right of privacy as enunciated in Griswold v. Connecticut. Justice William J. Brennan, Jr. delivered the opinion for the Court's 6 to 1 majority. Chief Justice Burger filed a dissent. Associate Justices Powell and Rehnquist did not take part in the matter.

Justice Brennan's opinion said that Massachusetts' statute violated the Equal Protection Clause of the Fourteenth Amendment because it stated no rational basis for treating married couples different from single persons with regard to contraceptives.

Massachusetts' State Supreme Judicial Court had held that the statute provided first that only a physician or druggist could dispense contraceptives for the purpose of birth control and only to married persons. Secondly singles persons could not be given contraceptives by anyone. Finally, that married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease.

The disputatious aspect of the statute revolved around the varying purposes of the act. The State Supreme Judicial Court, in one case, essentially ruled that it was a law protecting the health of the citizens of Massachusetts. In an altogether different case the same court ruled that the statute was intended to protect morals through regulating the private sexual lives of single persons. Brennan said: "...the goals of deterring premarital sex and regulating the distribution of potentially harmful articles cannot reasonably be regarded as legislative aims of §§ 21 and 21A. And we hold that the statute, viewed as a prohibition on contraception per se, violates the rights of single persons under the Equal Protection Clause of the Fourteenth Amendment.

Brennan went on to say that: "[t]he Equal Protection Clause of [the Fourteenth] amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."

Eisenstadt v, Baird was decided in 1972.

Next we take up Roe v. Wade.

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