You might think that such a controversy would be aired in this election campaign. For one moment in the first debate the issue was sharply joined: Mr. Bush decried the present state of legal abortion, and Mr. Dukakis promptly denounced him for ''branding a woman a criminal.''
Next day the Vice President decriminalized the woman, proposing to hold to account only the doctor. Incredibly, on a powerful issue where polls say he would have 2-to-1 popular support among women, Governor Dukakis sauntered away from the subject. His running mate, invited to make the issue on television last Sunday, also demurred. Democrats are afraid to rile the well-organized pro-lifers.
Where will that craven issue-evasion leave the future Supreme Court, which likes to follow the election returns? Would the election of George Bush, and the replacement of the liberal octogenarian trio with mild conservatives, mean the reversal of Roe v. Wade, as everyone seems to think?
No. Sources with a pretty good idea of how the Court works tell me it would mean, instead, a return to the balance of interests intended by Roe v. Wade. That careful compromise limited, but did not cast aside, a state's ability to regulate abortion. ''Plainly,'' wrote Chief Justice Warren Burger in concurring, ''the Court today rejects any claim that the Constitution requires abortion on demand.''
That's what at least some of the majority then thought, but in subsequent decisions the momentum gathered behind a woman's greater freedom to make a decision to abort.
In striking down a 1986 Pennsylvania law requiring a woman to be informed, before an abortion, both of her own medical risks and of her potential child's financial claims against the father, Justice Blackmun wrote for the majority that such state-supplied information was undue discouragement and ''a woman's right to make that [ abortion ] decision is fundamental.''
That sweeping assertion struck some justices as plainly ''abortion on demand,'' which dissenters reminded their colleagues was far from what the Court majority had in mind in 1973.
That disagreement with follow-up decisions sets the scene for a review of what has happened since Roe, especially in light of medical developments that increase the viability of the fetus while making it easier, a few years from now, for a pregnant woman to abort that fetus by taking a simple pill. That's the ''collision.''
The Court members who want to rethink the Blackmun doctrine (and who may already be a majority) are aware of the danger of upsetting established law. That reverence for stare decisis is the reason some of their associates are pointing with approval to the parent and not the offspring - to the non-absolute Roe v. Wade and not to subsequent decisions that upset the compromise.
That's why, a well-placed source tells me, ''it is reasonably predictable not that Roe will be overruled but may be cut back to what it said in 1973.''
That makes sense to libertarians who are uncomfortable with abortion as mere afterthought birth control. The pity is that neither of the candidates for President had the courage to take the issue to the electorate.Continue reading the main story
Introduction ↑ top
|Supreme Court in Winter - Shutterstock Images|
Because neither interest is compelling before the second trimester, the State may not regulate abortion in the first trimester either to preserve the woman’s health or to protect the life of the unborn child.Id. at 163. After the first trimester, however, the State may regulate the performance of an abortion, but only for the purpose of preserving the woman’s health, not for the purpose of protecting the life of the unborn child. After viability, the State may regulate, and even prohibit, abortion to protect the life of the unborn child, except when the performance of the abortion is necessary to preserve the life or health of the woman.Id. at 164-65 (summarizing holdings). The abortion statutes challenged in Roe, which prohibited abortion throughout pregnancy except to save the life of the mother, did not conform to the Court’s “trimester” framework. Accordingly, they were declared unconstitutional.Id. at 164. In Roe, the Court also held that an unborn child is not a “person” as that word is used in § 1 of the Fourteenth Amendment and, therefore, is not protected by either the Due Process Clause or the Equal Protection Clause, id. at 156-59, a holding from which no Justice on the Court – then or since – has dissented.
In Roe’s companion case of Doe v. Bolton, 410 U.S. 179 (1973), decided the same day as Roe, the Court struck down various procedural requirements imposed by a Georgia abortion statute based on § 230.3 of the Model Penal Code (that the abortion be performed in a licensed and accredited hospital, that the procedure be approved by the majority of a medical staff committee of the hospital, and that two other physicians in addition to the attending physician certify that the abortion was necessary for one of the reasons specified in the statute).3 410 U.S. at 192-200. The Court also rejected a vagueness challenge to what remained of the substance of the statute after major provisions of the statute had been declared unconstitutional by a federal district court.Id. at 191-92.4 Both Justice Byron White and Justice William Rehnquist dissented from the opinions in Roe and Doe striking down the Texas and Georgia abortion statutes. Roe, 410 U.S. at 171 (Rehnquist, J., dissenting); Doe, 410 U.S. at 221 (White, J., dissenting from both opinions); id. at 223 (Rehnquist, J., dissenting).
I. The Origins of a Constitutional Right ↑ top
Roe, as noted in the Introduction, was based on the right of privacy. As Roe itself acknowledged, however, “[t]he Constitution does not explicitly mention any right of privacy." 410 U.S. at 152. Nevertheless, in a line of decisions going back to the late nineteenth century, “the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."Id. This right of privacy, “founded in the Fourteenth Amendment’s concept of personal liberty," the Court in Roe held, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy."Id. at 153.
The roots of a right of personal privacy have been found in the U.S. Constitution in the following places:
- in the free speech guarantee of the First Amendment, which has been held to protect the possession of pornography in one’s home, Stanley v. Georgia, 394 U.S. 557, 564 (1969);
- in the Fourth Amendment, which secures the right of the people against “unreasonable searches and seizures" of their “persons, homes, papers and effects," and the Fifth Amendment, which prohibits compulsory self-incrimination, see Boyd v. United States, 116 U.S. 616, 630 (1886) (Fourth and Fifth Amendments protect against all governmental invasions “of the sanctity of a man’s home and the privacies of life”);
- in the Ninth Amendment, which preserves other rights not enumerated in the Constitution, Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (striking down statute prohibiting use of contraceptives by married couples) (Goldberg, J., concurring);
- in the “penumbras" (shades) of the Bill of Rights as a whole, Griswold, 381 U.S. at 484-85;
- and in the liberty language of the Due Process Clause of § 1 of the Fourteenth Amendment, Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (striking down a state statute forbidding the teaching of any subject in any language other than English, or the teaching of modern foreign languages below the eighth grade).
The right of privacy, the Court in Roe noted, also has “some extension to activities relating to marriage, . . . procreation, . . . family relationships, . . . and child rearing and education." 410 U.S. at 152-53, citing the following cases:
- Loving v. Virginia, 388 U.S. 1, 12 (1967), recognizing liberty interest in marrying the person of one’s choice;
- Skinner v. Oklahoma, 316 U.S. 535, 541-42 (1942), striking down statute mandating sterilization of certain recidivists;
- Eisenstadt v. Baird, 405 U.S. 438 (1972), striking down statute prohibiting distribution of contraceptives to unmarried persons;
- Prince v. Massachusetts, 321 U.S. 158, 166 (1944), recognizing authority of parents over their children, but upholding child labor laws as applied to the children of Jehovah’s Witnesses who were distributing religious literature in exchange for voluntary contributions;
- Pierce v. Society of Sisters,268 U.S. 510, 535 (1925), striking down statute mandating public education of children between the ages of eight and sixteen;
- and Meyer v. Nebraska (holding described above).
II. Critique of Roe’s Privacy Theory ↑ topThere is a vast legal literature – law review articles and books – both attacking and defending virtually every aspect of Roe, particularly its treatment of the history of abortion regulation in English and American common and statutory law, Roe, 410 U.S. at 132-41; its analysis of the reasons for which abortion statutes were enacted in the nineteenth century,id. at 147-52; its dismissal of developments in the law according rights to unborn children,id. at 161-62; its adoption of the “trimester” framework for evaluating abortion regulation, id. at 162-63, which smacks more of the work of legislators drafting statutes than judges deciding cases; and its reliance on an implied right of privacy that is found nowhere in the United States Constitution,id. at 152-56. A review of that literature lies outside the scope of this essay.5 Nevertheless, some commentary is necessary on the Court’s rationale for its decision in Roe.
The Supreme Court’s reliance on privacy theory to support a right to abortion is problematical at several levels. First, as the Court itself recognized, Roe, 410 U.S. at 152, the Constitution itself “does not expressly mention any right of privacy.” To be sure, as Justice Hugo Black noted in his dissent in Griswold v. Connecticut, 381 U.S. 479, 508-10 (1965) (Black, J., dissenting), various provisions of the Bill of Rights protect specific privacy interests, for example, the First Amendment’s right of associational privacy, the Fourth Amendment’s protection against unreasonable searches and seizures and the Fifth Amendment’s prohibition of compelled self-incrimination. But the Constitution does not create a general right of privacy. See, e.g., Katz v. United States, 389 U.S. 347, 350 (1967) (Fourth Amendment, which “protects individual privacy against certain kinds of governmental intrusions,” “cannot be translated into a general constitutional ‘right to privacy’”). Recognition of a “general constitutional ‘right to privacy’” cannot be reconciled with the care with which the Framers of the Bill of Rights described the specific rights that were being secured.
Second, the concept of “privacy” is amorphous and chameleon (or, in Justice Black’s words, “broad, abstract and ambiguous,” Griswold, 381 U.S. at 509). Roe’s attempt to collect cases under the rubric of “privacy” – a term that does not even appear in most of the cases cited – simply creates an artificial common denominator among a very disparate and largely unrelated group of cases that have nothing to do with the subject of abortion, as the Court in Roe freely admitted: “The situation [involving a pregnant woman and her unborn child] . . . is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned.” 410 U.S. at 159 (emphasis added).6 If a pregnant woman’s decision whether or not to carry her pregnancy to term is “inherently different” from all of the “privacy” cases on which the Court relied, then it is difficult to understand how those cases could possibly support recognition of a right to obtain an abortion.
Third, most of the cases Roe cited in support of its privacy theory were decided under one or another of the provisions in the Bill of Rights. Roe itself, however, derived the right of privacy (and a subsidiary right to abortion) from the liberty language in the Due Process Clause of the Fourteenth Amendment, 410 U.S. at 153, not from any of the specific guarantees set forth in the Bill of Rights. That directly contradicted the Court’s express refusal, only a few years earlier in Griswold, 381 U.S. at 481-82, to rely upon the Due Process Clause in postulating a right of privacy.
Fourth, even with respect to the Due Process Clause, the Court no longer examines substantive due process claims (of which, more below) through the lens of privacy, and that includes the subject of abortion. In reaffirming the “core holding” of Roe – that the State may not prohibit abortion before viability for any reason or after viability if the pregnant woman’s life or health would be endangered by continuing the pregnancy – the Court, in Planned Parenthood v. Casey, 505 U.S. 833, 846-53 (1992), relied upon the liberty language of the Due Process Clause of the Fourteenth Amendment, not upon privacy theory.7 See also Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 279 n. 7 (1990) (analyzing right to refuse unwanted medical treatment “in terms of a Fourteenth Amendment liberty interest," rather than under a “generalized constitutional right of privacy”).
Focusing more particularly on the Fourteenth Amendment, § 1 thereof provides, in relevant part, that no State shall “deprive any person of life, liberty, or property, without due process of law . . . .” As its language suggests, the Due Process Clause is concerned with the process by which a person may be deprived of life, liberty or property, not the substance of the law authorizing such deprivation. See Lawrence v. Texas, 539 U.S. 558, 592 (2003)(Scalia, J., dissenting). It was never the intent of the Framers of the Fourteenth Amendment that the Due Process Clause would serve as a battering ram to knock down statutes the substance of which offended the sensibilities of a majority of Justices who happen to sit on the Supreme Court from time to time.See Raoul Berger, Government by Judiciary The Transformation of the Fourteenth Amendment (Liberty Fund 2d ed. 1997) 221-39, 273-306.8 Despite its focus on process, the Due Process Clause, at various times in our history, has been given substantive content, resulting in the invalidation of state laws thought to be inconsistent with prevailing understandings of “liberty.” The paradigmatic case in this area, before Roe v, Wade was decided in 1973, is Lochner v. New York, 198 U.S. 45 (1905).
In Lochner, the Supreme Court, over the vigorous dissent of Justice Oliver Wendell Holmes, Jr., held that state legislation setting limits on the number of hours a person could work in a bakery daily (ten hours) and weekly (sixty hours) violated the liberty of an employer to contract with his employees on terms that were mutually agreeable to them. The notion that the Due Process Clause has substantive (as opposed to only procedural) content bedeviled constitutional adjudication for a generation, until it was laid to rest, at least with respect to the review of social and economic legislation, in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), which upheld a minimum wage law. Twenty-five years later, the Supreme Court could state that it had “returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).
Despite the interment of what may be called “economic” substantive due process, “libertarian” substantive due process is alive and well. Under this strand of substantive due process analysis, the Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Roe v. Wade, while sounding in privacy theory, was ultimately based on the liberty language of § 1 of the Due Process Clause of the Fourteenth Amendment, see Roe, 410 U.S. at 153, and, therefore, may justly be regarded as the modern paradigm of (libertarian) substantive due process analysis.See Richard Epstein, Substantive Due Process by Any Other Name, 1973 Sup. Ct. Rev. 159, 184. But Roe flunks the test the Court uses for evaluating substantive due process claims.
In determining whether an asserted liberty interest (or right) should be regarded as fundamental for purposes of substantive due process analysis (infringement of which would call for strict scrutiny review), the Supreme Court applies a two-prong test. First, there must be a “careful description” of the asserted fundamental liberty interest.Glucksberg, 521 U.S. at 721 (citation and internal quotation marks omitted). Second, the interest, so described, must be firmly rooted in “the Nation’s history, legal traditions, and practices.”Id. at 710. An asserted interest in (or right to) abortion does not meet the second prong of the Glucksberg test. Quite the contrary. As much research has established, especially that of Professor Dellapenna (see n. 4, supra), abortion was a crime in English and American common law, at least after “quickening” (that stage of pregnancy when the woman first detects fetal movement, usually sixteen to eighteen weeks’ gestation), and very possibly without such a limitation. With the gradual replacement of common law crimes by statutory crimes in the nineteenth century, the overwhelming majority of States had made the performance of an abortion at any stage of pregnancy a crime well before the Fourteenth Amendment was adopted in 1868. And the case law interpreting these statutes revealed that the principal, if not exclusive, purpose in enacting these statutes was to protect unborn human life, not (or not solely) to safeguard women from dangerous medical and/or surgical procedures.See Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight from Reason in the Supreme Court, XIII St. Louis U. Pub. L. Rev. 15, 109-15 (1993). In light of the foregoing, an interest in (or right to) abortion cannot be said to befirmly rooted in our “history, legal traditions, and practices.”
III. Applications of Roe ↑ top
The Supreme Court has decided almost three dozen abortion cases since and including Roe v. Wade and Doe v. Bolton. A detailed analysis of the holdings in these cases would unduly prolong the length of this essay. The principal holdings, however, may be briefly summarized:
- In addition to the Texas abortion statutes struck down in Roe, the Court has struck down state statutes prohibiting particular abortion methods, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75-79 (1976) (saline amniocentesis), Stenberg v. Carhart, 530 U.S. 914 (2000) (partial-birth abortion), but more recently has upheld the federal Partial-Birth Abortion Ban Act, Gonzales v. Carhart, 550 U.S. 124 (2007).
- The Court has upheld statutes prohibiting non-physicians from performing abortions, Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) and has held that non-physicians may be prosecuted for performing abortions, Connecticut v. Menillo, 423 U.S. 9, 11 (1975)( per curiam).
- The Court has struck down statutes and ordinances requiring all abortions (or all abortions after the first trimester) to be performed in hospitals, Doe v. Bolton, 410 U.S. 179, 193-95 (1973) (all abortions), City of Akron v. Akron Center for Reproductive Rights (Akron Center I), 462 U.S. 416, 431-39 (1983) (all abortions after the first trimester), Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 481-82 (1983) (all abortions after the first twelve weeks of pregnancy), but has upheld a statute requiring all second trimester abortions to be performed in either a hospital or a licensed outpatient clinic, Simopoulos v. Virginia, 462 U.S. 506, 510-19 (1983).
- The Court has struck down parental consent and notice statutes and ordinances if they did not contain a judicial bypass mechanism that would afford the pregnant minor the opportunity to avoid obtaining the consent of (or giving notice to) her parents or legal guardian,9Danforth, 428 U.S. at 72-75 (one-parent consent), Akron Center I, 462 U.S. at 439-42 (one-parent consent without judicial bypass), Bellotti v. Baird, 443 U.S. 622 (1979) (two-parent consent) (inadequate judicial bypass), Hodgson v. Minnesota, 497 U.S. 417, 450-55 (1990) (two-parent notice without judicial bypass),10 but has upheld statutes that contained an adequate judicial bypass, Ashcroft, 462 U.S. at 490-93 (one-parent consent). Hodgson, 497 U.S. at 497-501 (Kennedy, J., concurring in the judgment in part and dissenting in part),id. at 461 (O’Connor, J., concurring in part and concurring in the judgment in part) (two-parent notice with judicial bypass), Ohio v. Akron Center for Reproductive Health (Akron Center II), 497 U.S. 502 (1990) (one-parent notice with judicial bypass), Planned Parenthood v. Casey, 505 U.S. 833, 899-900 (1992) (one-parent consent), Lambert v. Wicklund,520 U.S. 292 (1997) (one-parent notice) (per curiam).
- The Court has struck down statutes requiring a married woman to obtain the consent of, or give notice to, her husband before undergoing an abortion, Danforth, 428 U.S. at 67-72 (consent), and Casey, 505 U.S. at 887-98 (notice).
- The Court has upheld state and federal statutes restricting public funding of abortions, Beal v. Doe, 432 U.S. 438 (1977), Maher v. Roe, 432 U.S. 464 (1977), Harris v. McRae, 448 U.S. 297 (1980), and Williams v. Zbaraz, 448 U.S. 358 (1980), as well as state statutes and municipal government policies prohibiting the performance of abortions by public employees within the scope of their employment or in publicly owned and operated facilities (other than those necessary to save the life of the mother), Poelker v. Doe, 432 U.S. 519 (1977), and Webster v. Reproductive Health Services, 492 U.S. 490, 507-11 (1989).
- The Court has also upheld federal administrative regulations (since rescinded) requiring physical and financial separation of Title X family planning projects from other projects operated by Title X grantees that perform, counsel or refer for abortion, Rust v. Sullivan, 500 U.S. 173 (1991).
- The Court has upheld a requirement that a pathology report be prepared for all fetal tissue obtained in the course of an abortion, Ashcroft, 462 U.S. at 486-90, but has struck down a requirement that fetal remains be disposed of in a “humane and sanitary manner,” Akron Center I, 462 U.S. at 451-52.
- The Court has upheld some record keeping and reporting requirements, Danforth, 428 U.S. at 79-81, Casey, 505 U.S. at 900-01, while striking down others, Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 765-68 (1986), because of what the Court perceived as inadequate guarantees of patient confidentiality.
- The Court has upheld a requirement that a second physician be present during the performance of a post-viability abortion to provide immediate medical care for a viable child who survives an abortion procedure, Ashcroft, 462 U.S. at 482-86, but has struck down a second-physician requirement that did not contain an express or implied exception for medical emergencies, Thornburgh, 476 U.S. at 769-71.
- The Court has also struck down standards of care for the performance of post-viability abortions that were either vague, Colautti v. Franklin, 439 U.S. 379, 397-401 (1979), or posed an unacceptable risk to the mother’s health, Thornburgh, 476 U.S. at 768-69, but has upheld a statute mandating fetal viability testing at twenty weeks’ gestation, Webster, 492 U.S. at 513-21.
- In a pair of decisions, later overruled in part by Planned Parenthood v. Casey, 505 U.S. 833 (1992), which is discussed in the next part of this essay,infra, the Court held that States and municipalities could not require a short waiting period before the performance of a non-emergency abortion; that they could not required detailed informed consent information to be given to the pregnant woman seeking an abortion; and that they could not require portions of the informed consent information to be conveyed in person to the patient by the attending physician, see Akron Center I, 462 U.S. at 442-51 and Thornburgh, 476 U.S. at 759-65.11
IV. Roe Revisited: Planned Parenthood v. Casey ↑ top
In 1992, the Supreme Court revisited Roe and, in a Joint Opinion authored by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, substantially modified its holdings. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
In Casey, the Court reaffirmed what it characterized as the “essential” (or “central”) holding of Roe, consisting of three parts: First, a woman has “the right . . . . to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” 505 U.S. at 846. Second, the State has the power “to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.”Id. And, third, “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.”Id.
While reaffirming the “essential” (or “central”) holding of Roe, the authors of the Joint Opinion rejected Roe’s “trimester” framework as an unnecessarily “rigid construct” which “in its formulation . . . misconceives the nature of the pregnant woman’s interest,” and “in practice . . . undervalues the State’s interest in potential life . . . .”Id. at 872-73. The trimester framework “misconceives the nature of the pregnant woman’s interest” because “[w]hat is at stake is [her] right to make the ultimate decision [to obtain an abortion prior to viability], not a right to be insulated from all others in doing so.”Id. at 877. “Though the woman has a right to choose to terminate or continue her pregnancy before viability,” the Joint Opinion explained, “it does not at all follow that the State is prohibited from taking steps to ensure that [her] choice is thoughtful and informed.”Id. at 872. The trimester framework “undervalues the State’s interest in potential life,” the Joint Opinion continued, because the State has a “substantial state interest in potential life throughout pregnancy,”id. at 876, not just after viability.
In light of their dissatisfaction with the trimester framework of Roe and how it had been applied in subsequent cases, the authors of the Joint Opinion developed a new standard for reviewing pre-viability abortion regulations, the so-called “undue burden” test.Casey, 505 U.S. at 874-79.
Under that test, “a state regulation [that] has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” is unconstitutional.Id. at 877. Applying that test to the statutes challenged in Casey (multiple provisions of the Pennsylvania Abortion Control Act of 1982, as amended), a majority of the Court upheld the detailed informed consent requirement (including the mandated twenty-four hour waiting period), the parental consent requirement and the record keeping and reporting requirements,id. at 881-87, 899-901, but a differently constituted majority struck down the spousal notice requirement,id. at 887-98.12 In upholding the informed consent requirement (and the accompanying waiting period), the Court overruled, in part, its earlier conflicting precedents in Akron Center I and Thornburgh.Id. at 881-82.13
Both Justice Harry Blackmun and Justice Paul Stevens dissented from the Joint Opinion’s abandonment of Roe’s trimester framework and the strict scrutiny standard of review, while Chief Justice William Rehnquist, joined by Justices Byron White, Antonin Scalia and Clarence Thomas, dissented from the reaffirmation of the “essential” holding of Roe, arguing that the rational basis standard should be applied to all regulation of abortion.14
The Joint Opinion in Casey is notable in five respects:
- First, in reaffirming what it characterized as the “essential” (or “central”) holding of Roe, the authors of the Joint Opinion raised the issue but refused to state whether they believed that Roe had been correctly decided as an original matter of constitutional interpretation,Casey, 505 U.S. at 871 (“[w]e do not need to say whether each of us, had we been Members of the Court when the valuation of the state interest [in the protection of “potential life”] came before it as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions”),15 relying instead on “principles of institutional integrity” and “the rule of stare decisis [deferring to precedent].”Id. at 845-46; see also id. at 854-69.
- Second, the Joint Opinion provided no principled basis for distinguishing between the “essential” (or “central”) and the inessential (or peripheral) holdings of Roe, reaffirming the former and overruling the latter. As Justice Scalia commented, “I must . . . confess that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains.” Id. at 993. (Scalia, J., concurring in the judgment in part and dissenting in part).
- Third, in reaffirming the “essential” holding of Roe, the Joint Opinion abandoned Roe’s reliance on privacy theory, resting its analysis, instead, on the liberty language of § 1 of the Fourteenth Amendment.
- Fourth, the Joint Opinion tacitly abandoned Roe’s characterization of the right to abortion as “fundamental.”16
- And, fifth, the Joint Opinion substituted a new standard of review – “undue burden” – in place of the strict scrutiny standard employed in Roe for evaluating fundamental rights, which clearly allows for a broader scope of regulation (but not prohibition) of pre-viability abortions.17
The strict scrutiny standard of judicial review applies to laws that either interfere with the exercise of a fundamental constitutional right (e.g., voting) or discriminate on the basis of a suspect classification (e.g., race). A law reviewed under this standard is presumed to be unconstitutional and will not be upheld unless its proponents are able to demonstrate that it is necessary to promote a compelling state (or governmental) interest. Few, if any, laws reviewed under this standard survive. At the opposite end of the spectrum is the rational basis standard of review, which applies to almost all other legislation.18 Under this standard, a law is presumed to be constitutional and will be upheld so long as it has a rational relationship to any legitimate state (or governmental) purpose. Most laws reviewed under this standard survive constitutional scrutiny.
V. The Roberts Court and the Future of Abortion Jurisprudence ↑ top
Under the leadership of Chief Justice John Roberts, the Supreme Court has taken a more cautious approach to the review of abortion regulation.
Most obviously, the Court, in an opinion by Justice Kennedy, upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart, 550 U.S. 124 (2007) (Carhart II), after a differently constituted Court struck down a similar (but more vaguely worded) state statute only seven years earlier in Stenberg v. Carhart, 530 U.S. 914 (2000) (Carhart I). Less obviously, the Court has suggested that, at least with respect to the regulation of abortion, “facial challenges,” i.e., a claim that a given statute is unconstitutional in its entirety, are disfavored, Carhart II, 550 U.S. 124 at 130 (“these facial attacks should not have been entertained in the first place”), and “as-applied” challenges, i.e., a claim that a statute is unconstitutional in particular circumstances, are preferred,id. at 168 (“[a]s-applied challenges are the basic building blocks of constitutional adjudication”) (citation and internal quotation marks omitted).
Relatedly, in another decision of the Roberts Court, the Court unanimously held, in an opinion by Justice O’Connor, that when only a limited number of applications of an abortion statute would be unconstitutional, the proper remedy (if otherwise consistent with legislative intent) is to enjoin enforcement of those applications only, not to declare the entire statute unconstitutional. Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 328-31 (2006) (reviewing parental notice law). Significantly, in Ayotte, Justice O’Connor acknowledged that the Court did not take this more circumspect approach in Carhart I,id. at 330-31 (explaining that “the parties . . . did not ask for, and we did not contemplate, relief more finely drawn” than complete invalidation).19
In light of the Roberts Court’s more cautious approach to the review of abortion legislation, fewer challenges to abortion statutes may be expected. Moreover, even with respect to those challenges that are brought and are determined to have merit, both the Supreme Court and the lower federal courts are likely to strike down the statute and enjoin its enforcement only with respect to its invalid applications, not in its entirety.
Finally, a brief comment on an unresolved area of abortion law – the scope of the health exception required by Roe (as reaffirmed in Casey).
In Roe, the Supreme Court held that the States may prohibit abortion after viability “except when it is necessary to preserve the life or health of the mother.” 410 U.S. at 164. The Court, however, did not define the term “health.” In the companion case of Doe v. Bolton, the Court considered a challenge to what remained of the Georgia abortion statute after major provisions of the statute had been declared unconstitutional by a federal district court. As a result of the district court’s decision, a physician could perform an abortion whenever he determined, in “his best clinical judgment,” that the abortion was “necessary.” At issue in Doe was whether this standard was impermissibly vague. The Court concluded that it was not:
[T]he medical judgment [as to whether an abortion is “necessary”] may be exercised in the light of all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient. All these factors may relate to health...
Doe, 410 U.S. at 192.
Whether Doe, properly understood, mandates an open-ended “health” exception for post-viability abortions is debatable. Although there is the merest hint in one older case that the Court (as then constituted) may have regarded the broad language in Doe as a limitation on the State’s authority to prohibit post-viability abortions, see Colautti v. Franklin, 439 U.S. 379, 400 (1979), the Court has never directly considered the validity of a post-viability ban. Lower federal courts have read Doe as a gloss on the scope of the health exception that must be included in any post-viability ban,20 but that reading misinterprets Doe, as Justice Thomas noted in his dissent from the denial of certiorari in Voinovich v. Women’s Medical Professional Corp., 523 U.S. 1036 (1998):
Our conclusion that the statutory phrase at issue in Doe [whether the abortions was “necessary”] was not vague because it included emotional and psychological considerations in no way supports the proposition that, after viability, a mental health exception is required as a matter of federal constitutional law. Doe simply did not address that question.
523 U.S. at 1039 (emphasis in original).
As things now stand, whether the open-ended “health” language of Doe is a limitation on the authority of the States to prohibit post-viability abortions remains an open question, but one that should be answered by a challenge to an appropriately drafted statute. Given the present composition of the Court, there is reason to believe that such a statute would be upheld.
Conclusion ↑ top
In recognizing a constitutional right to abortion, the Court in Roe believed that it was meeting the “profound problems of the present day.” 410 U.S. at 165. The “problems” which the Court thought would be ameliorated by its decision included the medical risks associated with pregnancy, a “distressful life and future” for the pregnant woman confronted with an unwanted pregnancy, “[p]sychological harm,” the difficulty in providing “child care,” “the distress, for all concerned, associated with the unwanted child,” “the problem of bringing a child into a family already unable, psychologically or otherwise, to care for it,” and, for some, “the additional difficulties and continuing stigma associated with unwed motherhood . . . .”Id. at 153.
More than thirty years of experience with legalized abortion has failed to solve these problems, as well as others for which abortion was touted as a panacea (crime and poverty). Indeed, the regime of legal abortion has aggravated them.See Clarke D. Forsythe and Stephen B. Presser, The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States. 10 Tex. Rev. of Law & Politics 85, 108-36 (Fall 2005).
In reaffirming, as modified, Roe in Casey, the Supreme Court “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” 505 U.S. at 867. Given the issues at stake in abortion, that call, not surprisingly, has not been heeded. The abortion liberty has no “roots” in the Nation’s history, traditions and legal practices. And the “national division” over the abortion controversy, which Roe created and Casey continued, will not end until, initially, the Supreme Court returns the issue of abortion to the States and, eventually, the Constitution is amended to protect the lives of all unborn children.