In its 1973 landmark decision in Roe vs. Wade, the Supreme Court articulated for the first time that a woman’s right to an abortion was protected by the U.S. Constitution. While women throughout the Nation rejoiced in the fact that the Court had decided to place individual rights on a pedestal, Roe subsequently set off a massive backlash, during which conservative interest groups mobilized in order to persuade the Court to reconsider its ruling. Although the Court initially took pride in safeguarding Roe’s expansive protections, the more conservative Court of recent years has issued several rulings designed to limit the right to abortion. The ultimate result of the Court’s ambivalence in its abortion jurisprudence coupled with the plethora of passionate organized interest groups on both sides of the issue, has been to effectively transform abortion into the most pressing legal issue before the contemporary Court. “Abortion was (and remains) the central legal issue before the Court. It defined the judicial philosophies of the justices. It dominated the nomination and confirmation process. It nearly delineated the difference between the national Democratic and Republican parties” (Toobin 36). A judicial nominee’s views on abortion have essentially become the primary political litmus test used by the two major parties in order to determine whether or not an individual judicial candidate is fit for service on the federal bench. A case in point is the failed nomination of Alberto Gonzales to replace the vacancy left by Sandra Day O’Connor. Despite the fact that during his tenure as Attorney General Gonzales explicitly approved the torture of suspected terrorists, argued that the procedural protections contained within the Geneva Conventions were not applicable to enemy combatants being detained at Guantanamo Bay, and was the primary architect of the Bush administration’s archaic system of military tribunals, these impeccable conservative credentials were not enough to propel Gonzales past the uncompromising wall of right wing extremists. Pro-life groups discovered an obscure opinion which Gonzales had written during his time on the Texas Supreme Court, in which he agreed with the majority of the court in upholding a judicial bypass provision which permitted a minor seeking an abortion to go to a judge instead of a parent under certain circumstances (Toobin 269). Once this essentially inconsequential opinion was circulated by the right wing base, Gonzales’ conservative credentials were dismissed altogether, and his name was immediately removed from consideration. Thus, the Gonzales nomination debacle exemplifies that abortion, more than any other current political issue, has the potential to shape the membership of the Supreme Court for years to come.
In response to the immense public pressure placed on the Regan administration by successfully mobilized pro-life interest groups during the 1980s, President Reagan considered this abortion litmus test to be the most important criterion for selecting judicial nominees. Therefore, his appointment of Justices Scalia, Kennedy, and O’Connor (who later turned out to be a major disappointment from a conservative perspective) to the Supreme Court can be viewed as the initiation of calculated effort on behalf of the Reagan administration to ultimately overturn Roe’s fundamental holding. The appointments of Scalia and Kennedy, coupled with that of Clarence Thomas during the administration of George H.W. Bush, effectively created a conservative voting bloc determined to restrict a woman’s right to abortion. This conservative voting bloc (which also included Chief Justice William Rehnquist and at least initially Sandra Day O’Connor) voted consistently throughout the 1980s and 1990s to uphold restrictions on abortion in several cases adjudicated by the Court (Wardle 74). These cases included Harris vs. McRae, Webster vs. Reproductive Health Services, Rust vs. Sullivan, and Planned Parenthood of Southeastern Pennsylvania vs. Casey. Thus, despite the fundamental protections established by Roe which are necessary in order to ensure both the health and liberty of women, changes in the Court’s membership have initiated a concerted effort in recent years to significantly curtail a woman’s right to abortion. While the Rehnquist Court may have succeeded in altering and limiting components of Roe, it was ultimately unable to strike a substantial blow to the primary core of Roe’s holding. However, recent decisions by the ultra conservative Roberts Court indicate that Roe’s core is currently in serious jeopardy, and may not survive indefinitely into the future.
The Origin of the Right to Abortion: Griswold and the Right to Privacy
Before delving into the Court’s complex abortion jurisprudence, it is crucial to identify the generally accepted constitutional basis for the right to abortion. The legal foundation for Justice Blackmun’s majority opinion in Roe was created in 1965, when the Executive Director of the Planned Parenthood League of Connecticut and the organization’s medical doctor were convicted as accessories for giving married persons information and medical advice on how to prevent conception, and then subsequently prescribing a contraceptive device for the wife’s use (Griswold vs. Connecticut 1). An archaic Connecticut statute made it a crime for any person to use any drug or article to prevent conception. While it was assumed that the Supreme Court would most likely strike down the law, legal theorists at the time were unsure of which legal basis the majority would pursue. The two most likely sources were the Equal Protection Clause and the Due Process Clause (Fein 1). In his majority opinion, Justice Douglas effectively invoked the latter, but with a twist: he never explicitly listed the Due Process Clause as the basis for his opinion. Douglas invalidated the Connecticut law on the grounds that there exists a constitutional zone of privacy which is created by combining the provisions of several amendments. These amendments included the First, Third, Fourth, Fifth, and Ninth. While it is not explicitly stated in its text, the Court had previously interpreted the First Amendment to include the right to association and the right to educate a child in a school of the parents’ choice. An example of this concept of implied rights is the case of NAACP vs. Alabama, in which the Court struck down a law requiring the mandatory public disclosure of the NAACP’s membership lists. Douglas goes on to state that from decisions such as the aforementioned one, we can infer that the First Amendment contains a penumbra in which privacy is protected from government intrusion (Griswold vs. Connecticut 3). Thus, the First Amendment contains certain exterior rights which are used primarily as a means to fully exercise the enumerated rights. “Justice Douglas was able to use the concept of, or at least the word, privacy, as a bridge between a precedent in which a so called peripheral right had been recognized and the instant case in which he wanted to recognize one” (Bloom 9). Just as the right to association is necessary to ensure the realization of the expressly worded provisions of the amendment, so is the right to privacy. For example, the First Amendment right to freedom of the press would be meaningless if journalists were not provided with a significant level of constitutional protection for the right to conceal their private sources.
Furthermore, the Third Amendment implies a right to privacy due to the fact that it prohibits the compulsory quartering of soldiers during peacetime. The Fourth Amendment prohibits unreasonable searches and seizures: this can be thought of as providing for the privacy of one’s self, or physical privacy. The Fifth Amendment’s Self-Incrimination Clause forbids a defendant from being compelled to take the stand during a criminal case: this can be interpreted as providing for the privacy of one’s mind and ideas (Fein 2). While he refrains from elaborating on it, Douglas lists the Ninth Amendment as the final justification for the constitutional right to privacy. “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 worse, hopefully enduring, and intimate to the degree of being sacred” (Griswold vs. Connecticut 4). Although Douglas is unable to explicitly derive the right to privacy from any single constitutional provision, he effectively believes that this approach is not necessary in order to prove that the right exists. Instead, he articulates that since the establishment of the common law right to privacy preceded the ratification of the Constitution, the Framers did not find it necessary to explicitly include this right within the written document itself: it was clearly implicit as evinced by the fact that the Framers included five distinct amendments which were based upon the essential protection of privacy. Therefore, Douglas concludes his argument by classifying privacy as a fundamental right due to its apparent implication from numerous constitutional provisions.
“The present case, then, concerns a relationship lying within the zones of privacy created by several fundamental guarantees” (Griswold vs. Connecticut 4). This famous statement from Douglas’ opinion caused him to become the subject of harsh criticism from conservatives, who objected to the ability of an activist judge to effectively create unenumerated rights out of thin air. “To some, the need for value judgments renders the entire exercise of protecting unenumerated rights illegitimate” (Tribe and Dorf 2). As noted by Laurence Tribe and Michael Dorf, a perspective shared among very conservative legal analysts is that in order for a specific class of conduct to be protected as a right, the text of the Constitution must explicitly describe the details of the conduct. For example, Robert Bork believes that the justices do not have the authority to create a specific right if its establishment requires the justices to read into the Constitution their personal subjective outlooks (Tribe and Dorf 2). Taken to the extreme, Bork’s view implies that the Court should never uphold a claim to a right, either enumerated or unenumerated, unless that right is objectively established within a constitutional provision which is not subject to interpretation. A practical example of this view illustrates the devastating effect that the widespread adoption of this perspective would have on the protection of civil liberties: according to this radical perspective, although the Sixth Amendment guarantees a defendant a right to a speedy trial, the Court does not have the ability to limit the longevity of pretrial detention because the amendment does not include an objective determination of what is considered an unacceptable period of detention.
Contrary to the opinion of Bork, Douglas’ ability to imply the right to privacy through interpreting several constitutional provisions should actually be considered a strength of his method of reasoning. His argument can be viewed as using the structure of several of the first ten amendments in order to infer a right which is not expressly listed in the document itself. “Structural reasoning has also played a prominent role in the Court's fundamental rights cases, serving as the basis from which to derive unenumerated rights. The archetypal example of structural reasoning in an individual rights case is Justice Douglas' opinion for the Court in Griswold v. Connecticut” (Westover 7). Douglas effectively uses an approach known as structuralism when interpreting the Constitution in this case. Structuralism is essentially a method of inference from the structure and relationships created by the Constitution (Bartrum 1). This approach does indeed carry substantial weight due to the fact that it serves as the primary justification for the implicit doctrine of separation of powers (Bartrum 1). While the words “separation of powers” are not contained within the document, we can infer from the structure of Articles I, II, and III that the Framers intended for power to be divided equally between the three branches. If structuralism can be used to derive the primary political doctrine on which our style of government is based even today, it can certainly be used to imply an unlisted right. Thus, in light of the legal community’s general approval of structuralism as an approach to constitutional interpretation, it appears that Bork’s radical argument does not hold much weight.
Despite the fact that Bork’s criticism of Griswold has not achieved any form of real acceptance among legal circles, a few other criticisms of Douglas’ reasoning are more on point and raise important questions about Douglas’ analysis. One significant weakness is that Douglas fails to promulgate a guiding principle for future courts to use when adjudicating whether or not a given set of actions should receive constitutional protection.
In sum, the reasoning of Griswold is utterly incomprehensible. It hints that a Constitutional right may be discovered outside the Constitution if its verbal formulation is a “second cousin” of an express constitutional guarantee. By that logic, virtually any claimed right is a plausible candidate for constitutional recognition (Fein 3).
.By refusing to define the outward boundaries of what constitutes a constitutional right, Douglas effectively articulated that any conduct which is demonstrated to have at least a marginal relation to one or more enumerated provisions is a right in and of itself. While he characterized the Griswold case as one implicating the zone of privacy created by several constitutional guarantees, Douglas ultimately refrained from identifying these guarantees. For example, while Douglas listed the Fourth Amendment as a component of the zone of privacy, he failed to explain why this guarantee should include unreasonable searches and seizures, despite the fact that Connecticut had never authorized law enforcement to search a private bedroom for signs of contraceptive use (Fein 2). It is unclear whether or not the constitutional guarantees listed by Douglas were actually germane to the issue of criminalizing the use of contraception by married couples. Thus, if Douglas’ reasoning were applied to other disputes, there would essentially be no limit to the number and type of rights which could potentially be justified under this broad grant of judicial discretion.
Another key criticism invoked against Douglas is that while he took pains to deny that his opinion was based on the previously invalidated doctrine of substantive due process, his argument ultimately falls victim to this type of reasoning. “Overtones of some arguments suggest that Lochner v. New York, should be our guide. But we decline that invitation” (Griswold vs. Connecticut 1). In the 1905 case of Lochner vs. New York, the Court invalidated a New York statute forbidding bakers from working more than 60 hours a week or 10 hours per day. The Court’s justification for invalidating the law was that the Fourteenth Amendment’s right to liberty provided employers with the inalienable right to contract with their employees (Dolgin 20). Under the Court’s view, the statute deprived both the employer’s and employee’s rights to freely negotiate the terms of their contract. “The state's aim, as the Court viewed it, was simply and conclusively to intervene in the market so as to deprive worker and employer alike of the right to negotiate the terms of their own interactions” (Dolgin 20). The Court viewed the law as an attempt by New York to question the intelligence of bakers, whom the Court believed should be permitted to negotiate their own working conditions free from government interference. Thus, the Court articulated a principle which protected fundamental substantive rights by precluding the federal government from involving itself in employee-employer relations for years to come. The Lochner majority created the doctrine of substantive due process, which would dominate the Court’s Due Process Clause jurisprudence until 1937. Under this doctrine, employers could challenge both state and federal statutes on the grounds that laws regulating business practices violated due process because they took away their “liberty” to conduct business. An example of this doctrine in action is the 1923 case of Adkins vs. Children’s Hospital, in which the Court used this method of reasoning in order to strike down a federal minimum wage law.
According to Georgetown Law Professor David Bernstein, Douglas referred to several substantive due process decisions in his opinion. Douglas cites the cases of Pierce vs. Society of Sisters and Meyer vs. Nebraska in order to justify his assertion that the rights provided by the First Amendment are not limited to only those explicitly listed within its text. However, in both of these cases the Court had actually used the Due Process Clause in order to strike down restrictions on civil liberties (Bernstein 32). Therefore, Douglas misinterprets these cases by listing them as First Amendment cases instead of what they really were: substantive due process decisions. Douglas’ zone of privacy is really a cloak over the substantive due process argument contained beneath it. While Douglas expressly articulates that the Lochner precedent did not influence his opinion, he effectively transfers the Lochner doctrine from the economic arena to that of civil disputes.
If, as Justice Holmes put it in his famous Lochner dissent, “a constitution is not intended to embody a particular economic theory,” why then should the Constitution embody a particular theory of personhood, as it apparently must if we are to make sense of the claim that the word “liberty” in the Due Process Clause encompasses the autonomy to decide whether, for example, to engage in sexual intercourse without the risk of bearing a child (Tribe and Dorf 6).
According to some legal analysts, while it is possible to distinguish between a statute concerning economic conditions and one implicating the intimate relationship between a husband and wife, it is not practical to invoke substantive due process to create fundamental rights in one area but not the other. Due to the fact that the invalidation of the doctrine signaled that the Due Process Clause does not safeguard an unlimited right to enter into contracts, it follows that this clause fails to assert a general right to privacy as well (Garfield 1). To argue otherwise that the right to privacy is more important than the right to contract, and thus should receive special protection under the Due Process Clause, reflects solely a value judgment which fails to prove this assertion with any form of empirical legitimacy. Similar to the absolute right to contract accepted by the Court prior to 1937, Douglas’ broad substantive formulation of the right to privacy effectively sets no limit to how far privacy can be extended under the Due Process Clause. For example, nothing in Douglas’ opinion precludes the right to privacy from being extended to include the right of a consenting adult to purchase or use any illegal drugs so long as others are not being harmed in the process.
In summation, while Douglas’ opinion in the Griswold case has been subject to numerous criticisms on the grounds that he inferred a fundamental right from five vague clauses of the Constitution, his zone of privacy remains substantive law in the contemporary era. While the vast majority of liberal analysts agreed with the Court’s holding in Griswold, some expressed skepticism with the majority’s legal basis. These analysts argued that a more concrete foundation for the right to privacy could be found in the Ninth Amendment. “The Ninth Amendment allows courts to enforce constitutional rights, such as the right to privacy, which are not actually written in the Constitution” (Matheson 14). Legal analyst Cameron Matheson expresses the opinion that Douglas’ majority opinion should not be considered the leading authority on the right to privacy. Instead, the justification for the right to privacy expressed in Justice Goldberg’s concurring opinion should be the controlling precedent.
Goldberg’s opinion placed a special emphasis upon the pertinence of the Ninth Amendment to the debate over the right to privacy. “It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected” (Griswold vs. Connecticut 7). Goldberg articulated that the history of the Ninth Amendment provides evidence that the Framers intended the amendment to serve as a source of tangible fundamental rights. In other words, the amendment can be viewed as an explicit acknowledgement by the Framers that the enumeration of each and every right intended to be protected by the Constitution would have been an impossible task. “Madison expressed the concern that no list of rights could be comprehensive and that listing some rights would imply that no others existed” (Matheson 3). The primary architect of the Ninth Amendment was James Madison. Madison proposed this amendment before the House in order to ensure that the people would not be forbidden from possessing certain rights simply because the Framers failed to explicitly list them in the Constitution itself. At the Constitutional Convention, the Federalists were skeptical about including a Bill of Rights because they feared that it would be dangerous to only list some rights and not others since there would be those who would seize on the absence of the omitted rights to assert that the government was unrestrained within those areas (U.S. Constitution: Ninth Amendment Annotations 1). Thus, Madison’s purpose in drafting the Ninth Amendment was to ensure that the first eight amendments would not be construed to exhaust the fundamental rights guaranteed to the people by the Constitution.
Goldberg created a test to determine whether or not a claimed unenumerated right was indeed one of fundamental character: such a right is one which can not be denied without hindering the proper functioning on our civil and political institutions (Matheson 9). By applying Madison’s argument in support of an expansive interpretation of the Ninth Amendment to the facts in the case at hand, Goldberg came to the logical conclusion that privacy fell under the category of fundamental rights intended for protection under the amendment. “To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever” (Griswold vs. Connecticut 7). It is inconsistent with the Ninth Amendment to allow the government to infringe upon the right to marital privacy simply because it is not explicitly listed within the first eight amendments. According to Goldberg, if someone argues that the right to privacy is not included within the Ninth Amendment, then that logic would imply that the amendment itself is meaningless. Interesting enough, this is precisely the argument advanced by Robert Bork during his Supreme Court confirmation hearings before the Senate. “If it ultimately turns out that no plausible interpretation can be given, the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently” (CQ Electronic Library 719). Judge Bork articulated that since the Ninth Amendment can not be reasonably interpreted in an objective manner, it should never be invoked in justifying an individual’s claim to a constitutional right. In one instance, Bork went so far as to classify the amendment as merely a constitutional “inkblot” (Brickner 15). According to Bork, since the Ninth Amendment does not explicitly list any rights or provide for any restrictions on the power of the national government, it is itself meaningless. However, Bork’s interpretation of the amendment is refuted by history. He never explained during his confirmation hearings why the Framers would possibly include an amendment which had no meaning. One explanation for the Framers’ failure to explicitly write the right to privacy into the text of the Constitution is that the right itself is so basic to the proper functioning of any democratic society that it was not necessary to include it in writing. In other words, the nature of democratic government entails the recognition that certain fundamental rights, including that of privacy, are understood as inherent in the form of government created by the Framers. Bork’s interpretation clearly controverts James Madison’s intention in originally proposing the amendment, and thus lacks any form of historical support for his assertion.
Goldberg’s opinion should be considered controlling in the area of privacy, in order to silence the substantive due process concerns which have been levied against Douglas’ reasoning. Furthermore, evidence for this view is provided by the fact that the federal district court which initially adjudicated Roe vs. Wade adopted the Ninth Amendment, rather than Douglas’ penumbra of rights, as the basis for the right to privacy (Roe vs. Wade 17). Although arguments have been offered in opposition to the use of the Ninth Amendment as a means to guarantee the right to privacy, these arguments in general do not hold nearly as much weight as those advanced against Douglas’ somewhat arbitrary penumbra of rights. In summation, regardless of whether the opinion of Douglas or that of Goldberg is ultimately considered controlling in the years to come, the vast majority of legal analysts and judges have acknowledged the fact that the right to privacy is implicit in the text of the Constitution. Thus, a simple conclusion can be drawn from the Griswold case: married couples have a fundamental right to plan their families and enjoy consensual sexual intercourse without interference from the state, although the basis for this right is not concrete at the current time.
Roe vs. Wade: Extending Privacy to Include a Woman’s Right to an Abortion
The Griswold decision was important not only for its establishment of the constitutional right to privacy, but also because of the exterior rights created along with it. The Court’s holding in Griswold played a role of enormous proportions in the Court’s subsequent abortion jurisprudence. In 1970, a single pregnant woman, Norma McCorvey, filed a class action suit challenging the constitutionality of the Texas criminal abortion statutes, which proscribed all abortions except in cases where it was necessary in order to save the mother’s life (McBride 1). At the time during which McCorvey filed suit, most states throughout the Nation had similar laws on the books which substantially restricted a woman’s right to abortion. Although there was by no means a national consensus in support of the right to abortion in 1973, the Court handed down a revolutionary decision, which invalidated the longstanding abortion statutes in several states effectively overnight. Justice Harry Blackmun began his groundbreaking opinion in Roe vs. Wade by addressing the historical enactment of laws criminalizing abortion. “It has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy” (Roe vs. Wade 16). An underlying assumption shared by many of the abortion statutes was that the abortion procedure itself was dangerous, and could be detrimental to the health of the mother. The majority of these abortion statutes were enacted in the late 19th century, prior to the invention of modern medical techniques (Roe vs. Wade 16). Blackmun noted that the mortality rates for women undergoing legal early term abortion were at least as low, if not lower than the mortality rates for actual childbirth (Potts 1). Due to the fact that the mortality rates for women undergoing legal abortions in regulated clinics are significantly lower than those for women undergoing illegal abortions in back alleys, the states have a compelling interest in ensuring that women have access to safe abortion clinics in order to prevent the unnecessary loss of life.
Justice Blackmun continued by listing a second historical justification for the enactment of abortion statutes: the State’s interest in protecting prenatal life. “The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus” (Roe vs. Wade 17). Blackmun countered this justification by articulating that the primary intention behind these statutes was not to safeguard the life of the fetus, but rather to protect the life of the mother. Due to the fact that modern medical techniques have alleviated the latter concern, it is unclear whether or not these statutes strike the right balance between protecting the life of the fetus, and that of the mother. In order to determine the correct balance, Blackmun next tried to answer a fundamental question: is the right to an abortion protected by the Constitution, and if so, is that right absolute or conditional?
In order to answer the first part of the question, Blackmun referred back to the Court’s holding in Griswold. “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” (Roe vs. Wade 19). The right to privacy created by the Griswold majority essentially laid out the framework for the Roe Court to recognize a woman’s right to an abortion. Blackmun articulated that while the constitutional basis for the right to privacy may not be entirely clear, this right is undoubtedly encompassed within the Bill of Rights. He also stated that it is not necessary to determine specifically which single constitutional provision the right to privacy can be implied from. Due to the broad nature of the right, Blackmun considered a woman’s right to an abortion to be included within the right to privacy. Furthermore, if a State were permitted to proscribe abortion altogether, women would experience substantial physical and mental harm as a result. For example, being forced by the State to carry an unwanted child would cause much distress for a single woman, and such a policy would detrimentally affect both the interests of the mother and child alike (Roe vs. Wade 19).
Although Blackmun concluded that a woman’s right to an abortion was encompassed within the right to privacy, he did not consider this right to be absolute. “We, 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 vs. Wade 20). Blackmun noted that a State may properly assert important interests in safeguarding health and in protecting the life of the fetus. Due to the fact that a woman’s right to an abortion is fundamental, the strict scrutiny test must be used when determining whether or not a given restriction on this right is constitutionally permissible. “As with any fundamental right, the State may limit the right to an abortion if it can show a compelling interest for doing so” (Henry 3). Under this test, the State can only place limitations on the right to abortion if it can show a compelling justification for doing so. Blackmun subsequently conceded that at some point these interests become sufficiently important to permit the regulation of abortion by the states (Roe vs. Wade 20). In order to clarify this principle, Blackmun attempted to answer a follow up question later in his opinion: at what point during pregnancy can a State legitimately assert its interest in safeguarding the life of the unborn fetus?
Prior to addressing this inquiry, Blackmun applied this principle to the facts of the case at hand. Due to its broad prohibition of abortion procedures, the Texas statute could only be upheld if the State was successfully able to show that a fetus was an actual person within the meaning of the Fourteenth Amendment. In analyzing this argument, Blackmun referred to several places within the Constitution where the word “person” is used: these provisions include the Due Process Clause, the Equal Protection Clause, and the listing of qualifications for Representatives and Senators (Roe vs. Wade 20). In considering these provisions, Blackmun failed to find any indication that the word “person” was meant by the Framers to be applied to prenatal life. “All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn” (Roe vs. Wade 21). Blackmun went on to state that the criminal and civil laws of our Nation only provided protection for prenatal life in disparate instances. “Culturally, while some groups regard fetuses as people deserving full rights, no consensus exists” (McBride 2). As a result of the fact that no consensus exists as to whether or not fetuses should be provided with tangible rights, Texas effectively adopted one view out of many, which is not borne out by empirical evidence. Therefore, Blackmun articulated that protecting all fetuses throughout the State under this subjective view of prenatal life was not sufficiently important to justify the State’s ban on abortions altogether.
Furthermore, Blackmun continued by attempting to devise a system of standards for determining under what circumstances a State had a compelling interest in restricting a woman’s right to an abortion.
(a) 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. (b) 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. (c) 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 it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother (Roe vs. Wade 25).
Blackmun concluded his opinion by establishing the famous abortion trimester framework. In creating this framework, Blackmun acknowledged that a State has two conflicting interests at stake: preserving the health of a pregnant woman and protecting potential human life. “With respect to the State's important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester” (Roe vs. Wade 22). As previously stated, the mortality rate for abortion may be less than that for regular childbirth during the first trimester. Thus, it follows from this fact that prior to the end of the first trimester, a woman is free to undergo an abortion without any form of interference or restriction on behalf of the State. In other words, abortion is exclusively a decision for a woman and her doctor to make for the first 12 weeks of pregnancy. On the other hand, a State may regulate abortion from this point forward by adopting measures reasonably designed to safeguard the health of the mother. Blackmun listed several examples of these reasonable regulations, including requirements as to who can legally perform abortions and the facility in which the procedure may be performed (Roe vs. Wade 22). Thus, while a State can not legally proscribe abortion procedures during the second trimester, it can place restrictions in the way of a woman seeking an abortion, as long as those restrictions are related to maternal health.
“With respect to the State's important and legitimate interest in potential life, the ‘compelling’ point is at viability” (Roe vs. Wade 23). The term viability refers to the point at which a fetus has the capability of meaningful life outside of the mother’s womb. This point has been scientifically defined to occur at the end of the second trimester, or at approximately the 27th or 28th week of pregnancy (McBride 2) Blackmun indicates that since a State is more than justified in protecting fetal life subsequent to the period of viability, a State could choose to proscribe abortion, except when necessary to preserve the life or health of the mother. Therefore, during the third trimester, the balance between the freedom of a woman to choose whether or not to carry out her pregnancy and the duty of the State to safeguard the fetus falls in favor of the latter.
In summation, Blackmun’s majority opinion established the principle that the State’s interest in protecting potential life becomes more compelling as the length of pregnancy increases. At least during the initial stages of pregnancy, the decision of whether or not to undergo an abortion was ultimately placed within the hands of the individual woman. Almost immediately upon the issuance of the Court’s decision, conservative politicians and interest groups initiated an enormous backlash against what they perceived as a radical holding by liberal justices who were effectively legislating from the bench. “The erosion of Roe’s protections began immediately. Well-funded abortion opponents pressed state and federal lawmakers to enact a wide range of restrictive abortion laws attempting to directly or indirectly reverse Roe’s protection of women’s reproductive choices” (Center for Reproductive Rights 2). While the majority of Roe’s opponents realized that it was highly unlikely that the Court would reevaluate Roe’s central holding within the near future, this fact did not dissuade them from seeking to narrow Roe’s protections to the greatest extent possible. In pursuance of this effort, state legislatures throughout the Nation began enacting measures designed to restrict a woman’s access to abortion: these included parental notification provisions, consent of a husband requirements, limiting the coverage of abortion procedures by state Medicaid programs, 24 and 48 hour waiting periods, and several others. The Court’s abortion jurisprudence from 1973 up until the present day has primarily been concerned with determining which of these restrictions are consistent with Roe’s fundamental holding.
Prior to discussing the specifics of the Court’s subsequent abortion decisions, it is crucial to draw a distinction between Roe’s core holding and the sections of Justice Blackmun’s opinion which are peripheral to that principle.
The essential holding of Roe consisted of three parts. First, Roe recognized that a woman has the right to choose to terminate her pregnancy before viability and to do so without undue interference from the State. Second, the State has the power to restrict abortions after viability provided that the law contains exceptions for post viability abortion if the woman's life or health is in danger. Finally, the State has legitimate interests from the outset of pregnancy in protecting both the health of the mother and of the unborn child (Henry 8).
The central holding of Roe consists of the principle that a woman’s right to undergo an abortion procedure can never be denied by the State prior to the 27th or 28th week of pregnancy. Furthermore, the State does retain the authority to ban abortion after the period of viability, except if the procedure is necessary in order to preserve the life or health of the mother. Although it served as a useful method by which to initially formulate the abortion timeline, Justice Blackmun’s trimester framework is not an essential part of this holding. While the framework precludes the states from enacting any restrictions whatsoever during the first trimester, this peripheral protection is not necessary in order to ensure that a woman’s right to an abortion is safeguarded prior to viability. For example, while the enactment of a 24 hour waiting period measure may inconvenience a woman seeking an abortion, it ultimately would not restrict her right to actually undergo the procedure. Therefore, despite the fact that the peripheral protections inherent in the framework are greatly beneficial to women, their demise would not alter Roe’s core holding. The trimester framework is not necessary to guarantee that, prior to the period of viability, a woman’s right to an abortion would not become subordinate to the State’s interest in supporting childbirth. Thus, in order to substantially impair Roe’s core, a Supreme Court decision would have to either restrict the right to abortion prior to viability, or approve the ability of the State to restrict late term abortions when the life or health of the mother is in jeopardy. At least until 2007, the Supreme Court was unable to do either.
The Supreme Court After Roe: Initially Safeguarding Roe in its Entirety
Although the political right was infuriated by the judicial activism exemplified by the Roe majority, they were unable to convince the Court to restrict Roe’s holding for the duration of the 1970s. The failure on behalf of the right to successfully curtail Roe during this era can be explained by the fact that the Court’s membership remained very stable from 1972 until the election of President Reagan in 1980. The only appointment to the Supreme Court during this period was that of John Paul Stevens, by President Gerald Ford in 1975 (United States Supreme Court 2). Due to the gravity of the Watergate scandal and President Nixon’s subsequent resignation, Ford did not believe it would be practical, or perhaps even politically possible, to nominate a true conservative to the Court at this time. Instead, he chose the moderate Stevens, whose views on abortion were not well known, in order to avoid wasting the Republican Party’s little remaining political capital on a drawn out and most likely controversial confirmation process. Thus, the replacement of Justice Douglas, who voted with the Roe majority, by John Paul Stevens did not significantly alter the Court’s ideological balance on the abortion issue.
A case in point is the 1976 case of Planned Parenthood of Central Missouri vs. Danforth. This case involved a challenge to a Missouri abortion statute which promulgated an informed consent provision, a spousal consent provision, a parental consent provision for minors seeking an abortion, reporting and recordkeeping requirements, and a ban on the abortion procedure known as saline amniocentesis after the first 12 weeks of pregnancy (Planned Parenthood of Central Missouri vs. Danforth 1). With regard to the informed consent provision, the Court ruled that the measure did not serve to restrict a woman’s right to an abortion. “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” (Planned Parenthood of Central Missouri vs. Danforth 8). Justice Blackmun articulated that since an individual woman’s decision of whether or not to undergo an abortion is one an important nature, the significance of this decision can be legally assured by the State by requiring prior written consent. This requirement does not serve as a roadblock in the way of a woman seeking an abortion: instead, it is beneficial to her by ensuring that the decision is made with the full knowledge of its consequences (Planned Parenthood of Central Missouri vs. Danforth 14). Furthermore, a majority of the Court agreed to uphold the reporting and recordkeeping requirements. These requirements were reasonably related to collecting information pertinent to the preservation of maternal health. Due to the fact that these records are confidential, they do not amount to a State imposed regulation on early term abortions.
On the other hand, the Court found fault with the other three provisions. The spousal notification provision required the prior written consent of the husband of a woman seeking an abortion within the first 12 weeks of pregnancy, unless that abortion was determined by a doctor to be medically necessary to preserve the life of the mother. The majority chastised the lower courts for upholding such a restrictive measure. “Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period” (Planned Parenthood of Central Missouri vs. Danforth 9). According to Justice Blackmun, the effect of the measure was to delegate an abortion veto power to the husband, permitting him to unilaterally make the abortion decision in place of his spouse. Due to the fact that the State itself can not prevent a woman from having an abortion prior to the period of viability, the State is precluded from effectively exercising this power through a third party. Although the husband undoubtedly has an interest in his wife’s pregnancy, many cases arise in which the decision to terminate a pregnancy is not agreed upon by both parties. As a result of the fact that the woman ultimately bears the child and is more directly affected by the pregnancy, the wife’s view must prevail in cases of conflict (Planned Parenthood of Central Missouri vs. Danforth 9).
With regard to the parental consent provision, while the Court acknowledged that its intention was to safeguard the family, this justification was not considered a compelling reason to restrict abortion. “We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as s 3(4), 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” (Planned Parenthood of Central Missouri vs. Danforth 10). Just as the State can not delegate to the husband an absolute veto over his wife’s decision, similarly the State can not transfer this right to the parents of a minor. The parents’ interest in monitoring the childbirth decisions of a minor does not outweigh the minor’s right to privacy in pregnancy. By invalidating this measure, the Court reiterated that during the early stages of pregnancy the abortion decision must be left exclusively in the hands of a woman and her physician.
The final provision of the statute with which the majority disagreed was Section 9, which prohibited the use of saline amniocentesis after the first 12 weeks of pregnancy. During this type of abortion procedure, amniotic fluid is removed and then saline is inserted into the amnioticac (Planned Parenthood of Central Missouri vs. Danforth 11). Missouri proscribed this procedure on the grounds that this technique was detrimental to maternal health. However, in enacting this restrictive provision, the Missouri Legislature failed to take into account the fact that this technique was the most commonly used abortion procedure subsequent to the first trimester. “It did not recognize the prevalence, as the record conclusively demonstrates, of the use of saline amniocentesis as an accepted medical procedure in this country; the procedure, as noted above, is employed in a substantial majority (the testimony from both sides ranges from 68% To 80%) of all post-first-trimester abortions” (Planned Parenthood of Central Missouri vs. Danforth 11). Justice Blackmun pointed out that among the alternative techniques used to conduct second trimester abortions, saline amniocentesis was by far the safest method from the mother’s perspective. Although the procedure is not immune to maternal mortality, the fact remains that all medical procedures carry a risk of mortality. Therefore, the argument articulated by Missouri, that the procedure should be prohibited because it could potentially harm the mother, does not carry any significant weight. Furthermore, as identified in the brief filed by Planned Parenthood, while the Missouri statute prohibited the generally accepted second trimester abortion procedure, it failed to ban the techniques of hysterotomy and hysterectomy, which are significantly more dangerous for the woman (Hall and Freiman 16). The underlying intention of Section 9 was to ultimately preclude all post first trimester abortions, and thus it was an unreasonable regulation which clearly controverted the Court’s opinion in Roe.
As shown by the Court’s rebuke of substantial sections of the Missouri statute, the Danforth majority was unwilling to concede any significant limitations on the right to abortion. While it did not consider the right to abortion to be absolute by any means, the Court articulated that restrictions upon this fundamental right will only be upheld if they are narrowly tailored to advance the State’s interest in childbirth. By assigning substantial weight to privacy concerns, the Danforth Court established the principle that all broad abortion restrictions will be invalidated. The majority’s position was subsequently reaffirmed in the 1979 case of Bellotti vs. Baird. The Bellotti case involved the constitutionality of a Massachusetts statute which required a minor to obtain the consent of both parents prior to receiving an abortion. However, the law did contain a judicial bypass provision, permitting a woman to obtain an abortion by order of a superior court judge under special circumstances, but only after she has previously notified her parents (Bellotti vs. Baird 1). Despite the inclusion of this judicial bypass provision in the legislation, the Court determined that it was not sufficient to ensure that a woman’s right to an abortion would be protected. “It would be unrealistic, therefore, to assume that the mere existence of a legal right to seek relief in superior court provides an effective avenue of relief for some of those who need it the most” (Bellotti vs. Baird 17). Although the statute provides an avenue for a minor to obtain an abortion without parental consent, the fact remains that a minor would be unable to obtain a judicial bypass without first consulting her parents. However, due to the extraordinary influence that parents have over their children, parents who possess particularly strong views on the issue of abortion may attempt to obstruct their daughter’s access to the court. Therefore, just like in Danforth, the Massachusetts statute effectively authorized a third party to restrict a woman’s access to abortion prior to viability, in clear violation of Roe. While Justice Powell invalidated the Massachusetts statute, he noted that parental notification laws are not inherently unconstitutional. Powell attempted to lay out a guiding principle in order to demonstrate to the states how to create constitutionally permissible consent measures.
We conclude, therefore, that under state regulation such as that undertaken by Massachusetts, every minor must have the opportunity-if she so desires-to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation (Bellotti vs. Baird 20).
According to Powell, the Massachusetts law would have been upheld had it contained a judicial bypass provision which did not require parental notification as a precondition for its invocation. A minor must be provided with the opportunity to prove to a court that she is mature enough to make an informed decision to terminate her pregnancy. If the court accepts this argument on its face, or believes abortion to be in her best interests regardless, the court will authorize her to act without parental consent. Thus, while the Bellotti Court refused to promulgate a general rule invalidating all parental consent provisions, it did create relatively strict requirements for the states to take into consideration when enacting future restrictions.
While the pre-Reagan Court was unable to curtail Roe’s holding, it did limit public funding for abortion procedures, in the 1980 case of Harris vs. McRae. Harris involved a challenge to the Hyde Amendment, which significantly limited the use of federal funds to reimburse the cost of abortion procedures under the federal Medicaid program. The respondents argued that the legislation was invalid on two grounds: it violated the Due Process Clause of the Fifth Amendment and the Establishment Clause of the First Amendment. With regard to the due process claim, the Court held that the issue of public funding was not materially related to the Roe precedent. “But, 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, it simply 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” (Harris vs. McRae 23). According to Justice Stewart, the Roe majority did not state that public funding was a necessary component of a woman’s right to an abortion. The Hyde Amendment does not restrict a woman’s decision of whether or not to undergo an abortion: it simply allows the government the ability to refuse to subsidize that activity. While the liberty afforded by the Due Process Clause offers protection against government interference in certain personal activities, it does not follow that this clause guarantees an entitlement to funds which would aid a person seeking that liberty.
Furthermore, with regard to the First Amendment inquiry, the Court ruled that the law did not violate the Establishment Clause. Justice Stewart noted that if a peripheral effect of a statute is to advance religion, that fact alone does not render the legislation invalid. “It is well settled that ‘a legislative enactment does not contravene the Establishment Clause if it has a secular legislative purpose, if its principal or primary effect neither advances nor inhibits religion, and if it does not foster an excessive governmental entanglement with religion’” (Harris vs. McRae 29). Stewart articulated that it does not follow that the Hyde Amendment is invalid simply because it happens to coincide with certain religious values. The primary purpose of the law is not to advance particular religious values, but rather to preclude the federal government from subsidizing a certain medical activity. While the ultimate effect of the Harris holding was to bar the federal government from actively supporting abortion procedures, the ruling did not serve as a restriction on Justice Blackmun’s opinion in Roe. Instead of placing tangible obstacles in the path of a woman seeking an abortion (which would effectively curtail Roe at least in the peripheral sense), the Harris Court simply decided not to remove a preexisting obstacle: indigency. Thus, although Roe and Harris implicated the same basic issue, the details of the two rulings were largely unrelated to one another. It was not until the election of President Reagan that the Court actually began to curtail the peripheral sections of Justice Blackmun’s opinion.
1980-2000: Changes in Membership and Their Implications for Roe
President Reagan’s election in 1980 coupled with an aging Supreme Court convinced conservatives that the demise of Roe was within reach. Pro-life interest groups exerted substantial pressure on Reagan to only appoint justices who clearly satisfied the abortion litmus test by openly expressing disagreement with the Court’s holding in Roe. Although Reagan was immediately provided with the opportunity to appoint a new justice to replace Potter Stewart in 1981, abortion was initially only a secondary concern. First and foremost, Reagan wanted to appear progressive by appointing the first woman to the Court. Thus, although she was regarded with hostility by the evangelical wing of the Republican Party, Sandra Day O’Connor was confirmed by the Senate in September 1981 (Toobin 17). For one, Jerry Falwell articulated that “good Christians” should be wary of O’Connor’s appointment to the federal bench (Toobin 17). As exemplified by Justice O’Connor’s cautiously written dissenting opinion in the 1986 case of Thornburgh vs. American College of Obstetricians and Gynecologists, the religious right had sufficient reason to be concerned about O’Connor’s commitment to the pro-life agenda.
The Thornburgh case involved the constitutionality of the Pennsylvania Abortion Control Act, which imposed several abortion restraints. Writing for the majority, Justice Blackmun invalidated six provisions contained within the act. The two most relevant sections will be discussed here. The first provision required a woman to give her voluntary and informed consent to an abortion. Unlike the informed consent provision which was upheld in Danforth, the majority determined that the section in the case at hand unduly served to dissuade a woman from obtaining an abortion. “The mandated description of fetal characteristics at 2-week intervals, no matter how objective, is plainly overinclusive. This is not medical information that is always relevant to the woman's decision, and it may serve only to confuse and punish her and to heighten her anxiety, contrary to accepted medical practice” (Thornburgh vs. American College of Obstetricians and Gynecologists 8). The Pennsylvania Legislature’s decision to require a woman seeking an abortion to listen to biweekly fetal descriptions is unnecessarily broad, and does not provide the mother with essential medical information. The underlying intent of the legislature was to impose the State’s subjective pro-life message into the informed consent discussion between a woman and her doctor. Further evidence for this assertion is provided by the additional requirement that the physician inform the woman of detrimental physical and psychological effects of abortion procedures (Thornburgh vs. American College of Obstetricians and Gynecologists 10). The ultimate effect of this mandate is to create in a woman a heightened state of anxiety, as part of an attempt to compel her to reconsider her decision to seek an abortion. Such an intrusive requirement controverts Roe’s emphasis on the privacy of physician-client relationships, and is thus constitutionally repugnant.
Furthermore, the Court found fault with a separate provision which required that a second physician be present during an abortion performed in close proximity to the period of fetal viability. Although the Court had previously upheld a similar requirement in Missouri, Justice Blackmun drew a crucial distinction between the Missouri provision and the one enacted in Pennsylvania. “While the Missouri statute, in the view of Justice POWELL, was worded sufficiently to imply an emergency exception, Pennsylvania's statute contains no such comforting or helpful language and evinces no intent to protect a woman whose life may be at risk” (Thornburgh vs. American College of Obstetricians and Gynecologists). Unlike the Missouri statute, the Court could not reasonably imply from the text of the Pennsylvania law that an exception existed for cases in which the life or health of the mother was threatened. Without such an exception, the life of the mother could be endangered by a delay in the arrival of the second physician. Therefore, although this provision was designed to advance the State’s interest in safeguarding prenatal life by requiring physicians to use abortion techniques that maximized the chance of fetal survival, it was unconstitutionally burdensome due to the fact that it attempted to accomplish this goal through means which increased the risks to pregnant women (American Civil Liberties Union 3).
Despite the fact that Justice O’Connor filed a dissenting opinion in the Thornburgh case, her opinion indicated that it was highly unlikely that she would vote to overturn Roe. Unlike the other dissenting opinion filed in the case by Justice White, O’Connor refrained from chastising Roe. Instead, she disagreed with the increased level of scrutiny invoked by the majority in order to invalidate the several provisions of the Pennsylvania statute. “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’” (Thornburgh vs. American College of Obstetricians and Gynecologists 40). O’Connor found fault with the majority’s approach that the mere possibility that a State regulation could deter some women from seeking an abortion is a sufficient justification for invalidating it altogether. For example, O’Connor noted that the majority made no effort to empirically demonstrate that biweekly fetal descriptions were inflammatory to the extent that they would actually influence women not to undergo abortion procedures.
Contrary to the approach used by the Thornburgh majority, O’Connor articulated a competing method of abortion jurisprudence. “Judicial scrutiny of state regulation of abortion should be limited to whether the state law bears a rational relationship to legitimate purposes such as the advancement of these compelling interests, with heightened scrutiny reserved for instances in which the State has imposed an ‘undue burden’ on the abortion decision” (Thornburgh vs. American College of Obstetricians and Gynecologists 40). Although O’Connor’s test is not as protective of abortion rights as the inquiry favored by the majority, it nonetheless would forbid the states from enacting arbitrary and overinclusive restrictions on abortion. Under O’Connor’s test, significant limitations on a woman’s abortion decision constitute an undue burden, which in turn are unlikely to survive the heightened level of scrutiny applied to this category of restrictions. As indicated by her willingness to apply increased scrutiny to certain abortion restrictions, it can be assumed that regardless of whether or not O’Connor agreed with the Court’s original holding in Roe, she considered the case to be settled law. If O’Connor had seriously aspired to overturn Roe’s core holding, then she would not have created an abortion restriction inquiry which could be used to invalidate State efforts to curtail Roe. Thus, an essential precondition required for the development of O’Connor’s undue burden standard was her commitment to the belief that Roe’s core principle, that a woman’s right to an abortion can not be significantly curtailed until the end of the second trimester, should not be overturned.
Despite the fact that O’Connor did not express ardent opposition to abortion rights, subsequent changes in the Court’s membership would serve to shift the Court to the right. Just days after the Thornburgh ruling was handed down, Chief Justice Warren Burger announced his resignation. President Reagan decided to appoint the Court’s most outspoken opponent of Roe, William Rehnquist, to take over as Chief Justice. Furthermore, he appointed D.C. Circuit Court Judge Antonin Scalia to fill the remaining vacancy. Scalia was a constitutional textualist who openly expressed his distaste for the unenumerated right to privacy and its subsequent application to the Court’s abortion jurisprudence (Toobin 191). Scalia insisted that the only rights protected under the Constitution were those which were explicitly enumerated in its text. Under Scalia’s method of constitutional interpretation, since the right to abortion is not specifically contained in the Constitution or easily inferred from the intent of the Framers, it effectively fails to exist. As if the appointment of Scalia to the bench did not give proponents of Roe enough of a reason to be concerned, Lewis Powell subsequently stepped down in 1987. Reagan initially attempted to fill the vacancy left by Powell with a judge whose commitment to undoing Roe was as firm as that of Scalia. However, after the controversial nominations of the extremely conservative Robert Bork and Douglas Ginsburg collapsed in the Senate, Reagan settled on Ninth Circuit Judge Anthony Kennedy, who was quickly confirmed without incident. “Kennedy was also a serious Catholic, of pre-Vatican II vintage, who went to Mass every Sunday and prayed in the old-fashioned manner, hands clasped before him. Abortion repelled him. Once, before he joined the Court, he had called Roe the Dred Scott of our time” (Toobin 53). Although evangelical support for Kennedy did not match that of Scalia, it was clear from the outset that Kennedy believed that Roe was incorrectly decided. The ultimate effect of the Reagan appointments was that two members of the original Roe majority, Burger and Powell, were replaced by two justices who had openly expressed their disagreement with Roe’s core holding. Thus, it was no surprise to many legal analysts when the Court imposed several limits on Roe in the 1989 case of Webster vs. Reproductive Health Services.
Webster involved a challenge to a Missouri statute regulating the performance of abortions within the State. One section of the statute prohibited the expenditure of public funds or the use of public facilities for the purpose of performing abortion procedures, except when the mother’s life was at risk. Furthermore, a second provision required a doctor who had reason to believe that a fetus was at least 20 weeks old to determine whether or not the fetus was viable prior to performing an abortion (Wardle 10). The district court had invalidated both of these sections, and was subsequently affirmed by the 8th Circuit Court. On appeal to the Supreme Court, the Webster decision generated an unprecedented number of amicus curiae briefs, one of which was filed by the United States urging the Court to overturn Roe altogether.
Roe rests on assumptions that are not firmly grounded in the Constitution; it adopts an unworkable framework tying permissible state regulation of abortion to particular periods in pregnancy; and it has allowed courts to usurp the function of legislative bodies in weighing competing social, ethical, and scientific factors in reaching a judgment as to how much state regulation is appropriate in this highly sensitive area (Bryson and Bolton 8).
The U.S. government argued that although the doctrine of stare decisis carries significant weight in the Court’s jurisprudence on account of the fact that it promotes consistency in the law, it should be abandoned in this case due to the arbitrary legal basis for the right to abortion. Furthermore, since the issue of abortion has the potential to touch the lives of every U.S. citizen, it should be resolved by the people through political discourse in the elected branches of government. It is contrary to the principle of democratic government to permit an unelected judicial body to mandate a resolution to the public abortion debate. Therefore, the submission of this brief articulating such an extreme position by the U.S. government indicates that the Reagan administration considered Webster as a test case, in order to determine to what extent the changes in the Court’s membership had shifted the Court to the right on the abortion issue.
While the Court refrained from adopting the government’s extreme position, the majority led by Justice Rehnquist did overturn the lower courts by upholding the disputed provisions. With regard to the public funding and facilities provision, the Court held that Missouri’s decision to use public facilities in order to encourage childbirth over abortion did not place a tangible obstacle in the path of a woman seeking an abortion. “Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all” (Webster vs. Reproductive Health Services 15). Similar to the Court’s reasoning in Harris, Rehnquist articulated that Missouri did not enact an affirmative restriction on a woman’s right to an abortion: rather, it reflected the State’s judgment that the procurement of abortion procedures in public hospitals should not be encouraged. “Having earlier upheld public refusal to fund abortions, the Court noted that ‘it strained logic for the Court to reach a contrary result for the use of public facilities and employees’” (Wardle 12). The Court effectively extended the Harris decision to include a prohibition on the use of public funds and facilities. Rehnquist justified this application by articulating that the restrictions at issue in Webster were significantly less burdensome than those relating to indigency, which made it very difficult for some women to obtain abortions without public funding. Thus, it would be contradictory for the Court to strike down the Webster restriction when it had previously upheld the Harris restriction.
Furthermore, the majority disagreed with the interpretation of the viability test provision adopted by the lower courts. The viability test provision of the Missouri statute provides:
Before 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 (Webster vs. Reproductive Health Services 15).
While the lower courts upheld the first sentence, they both invalidated the second sentence. According to the district court, the second sentence violated the Court’s previous ruling in Colautti vs. Franklin, in which the Court expressly prohibited state legislatures from considering weeks of gestation or fetal weight to be elements entering into the ascertainment of viability (Wardle 15). Countering this argument, Rehnquist asserted that the first sentence of the provision effectively acted as a limitation on the second sentence. “We think the viability-testing provision makes sense only if the second sentence is read to require only those tests that are useful to making subsidiary findings as to viability” (Webster vs. Reproductive Health Services 16). Rehnquist articulated that the provision only makes sense only if the requirement that the doctor exercise reasonable judgment is interpreted to exclude those tests which are either irrelevant to determining fetal viability or dangerous to the mother’s life. Therefore, the lower courts erred by only considering the plain meaning of the second sentence by itself, without taking into account the limitation placed upon it by the first sentence.
The final issue considered by the Court was the validity of the trimester framework created by the Roe majority. “The last question the Court addressed in Webster was the big issue: ‘Should the Roe v. Wade . . . trimester approach . . . be reconsidered . . . in favor of a rational basis test’” (Wardle 21). Chief Justice Rehnquist wanted to abandon Roe’s rigid trimester framework in order to provide the states with increased flexibility to enact restrictions on abortion. He believed that the trimester framework was an extraconstitutional doctrine that was unworkable in practice and effectively unable to achieve consistency in the Court’s jurisprudence. “The key elements of the Roe framework-trimesters and viability-are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle” (Webster vs. Reproductive Health Services 26). However, he was ultimately unable to convince a majority of the Court to sign on to this section of his opinion. While the four liberal members of the Court voted to uphold the trimester framework and the four conservatives voted to overturn it, Justice O’Connor refused to address the issue. “First, where there is no need to decide a constitutional question, it is a venerable principle of the Court's adjudicatory processes not to do so for ‘the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it’” (Crain 14). Although the U.S. government had asked the Court to reconsider Roe in its brief, O’Connor recognized that the issue of Roe’s validity was not germane to the specific circumstances of the Webster case. In her concurring opinion, O’Connor articulated that the Court has traditionally refrained from issuing pronouncements that are broader than what is required in order to resolve a specific dispute. The Missouri statute at issue in the case at hand required only for the Court to issue a narrow rule disposing of the issues involved (Crain 14). Thus, at least for the time being, Justice Blackmun’s trimester framework remained untouched.
The Webster decision was the Supreme Court’s most restrictive abortion ruling issued up until this point in time. The Webster majority effectively overturned the method used by the Court in Thornburgh in order to invalidate State restrictions on abortion. By repudiating the lower courts, the Court articulated the principle that plausible constructions of state statutes advanced by the State in question, which render constitutional decisions unnecessary, are preferred to interpretations articulated by the federal courts (Wardle 32). Furthermore, the Webster majority contradicted Thornburgh by upholding previability regulations, although the Thornburgh Court had expressly stated that such restrictions could only be applied postviability. Thus, the repudiation of significant sections of Thornburgh indicates that changes in membership played a pivotal role in altering the Court’ abortion jurisprudence.
On the other hand, while the four conservatives were able place restrictions on a woman’s right to abortion in the Webster ruling, they were unable to limit the fundamental holding of Roe itself. “Justice Blackmun's plurality agreed that the state's interpretation of the viability testing statute posed little or no conflict with Roe’” (Wardle 25). In his dissenting opinion, Justice Blackmun agreed with O’Connor’s statement that the specific facts of the Webster dispute did not implicate Roe’s core principle. Nothing in Roe precluded the State from asserting its compelling interest in the potential life of a viable fetus, by adopting measures designed to prevent a woman from mistakenly terminating a viable fetus. Therefore, at least from Blackmun’s perspective, the validation of the Missouri statute did not serve to curtail Roe. While Rehnquist attempted to expand the states’ authority to regulate abortion procedures, he was unable to overturn the line of reasoning used in Roe. “Four members of the Court (with Justice Scalia as a silent fifth) have moved outward the line of permissible state involvement, but the line is no clearer than before” (Crain 17). According to legal analyst Christopher Crain, the effect of the Court’s decision was to increase the ability of the states to regulate abortion, but to an uncertain extent. The Webster majority failed to provide the states with guidelines regarding whether or not the enactment of a particular restrictive measure would be constitutionally permissible. Despite the fact that Rehnquist moved this line outward, the line itself relates only to a peripheral concern of Blackmun’s opinion in Roe: the specific restrictions that a state may impose on a woman seeking an abortion prior to the period of fetal viability. Regardless of the restrictions approved by the Webster majority, a woman’s right to undergo an abortion prior to the period of viability was left untouched by the Court. “While the Webster Court made important adjustments to the abortion privacy doctrine and revealed that further changes are likely and while the decision revived concern for matters of constitutional system and structure, the Webster decision is more important for the greater changes the Court could have made but did not make” (Wardle 54). Instead of revisiting Roe’s core holding (as Justice Scalia) wanted the Court to do, the Webster majority adopted an incremental approach to curtailing abortion rights. Therefore, the Court’s ruling in Webster exemplified that while Roe’s future would not be in jeopardy without more significant alterations in the Court’s membership, it would likely continue to uphold increasingly restrictive measures in subsequent abortion decisions.
Between the Webster case and the Court’s next important abortion ruling in the 1991 case of Rust vs. Sullivan, the Court did undergo a change in membership, but this change did not serve to substantially alter the Court’s ideological balance on abortion. President George H.W. Bush appointed David Souter to replace William Brennan, who was considered by many analysts to be the most liberal justice on the Court. White House chief of staff, John Sununu, promised conservatives that the appointment of Souter would be a “home run” for them, and at first look he appeared to be correct (Toobin 21). For example, in Rust vs. Sullivan, Souter cast the deciding vote in a 5-4 decision that further restricted a woman’s right to an abortion. The Rust case involved the Reagan administration’s so-called abortion gag rule, which prohibited doctors receiving federal funds from mentioning abortion as an alternative to pregnancy. Writing for the majority, Chief Justice Rehnquist articulated that the gag rule did not violate a woman’s 5th Amendment right to determine whether or not to terminate her pregnancy. “Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion” (Rust vs. Sullivan 15). Rehnquist stated that the gag rule did not discriminate against a woman seeking an abortion, but rather served to express the State’s interest in protecting prenatal life.
In dissent, Justice Blackmun criticized the majority for singling out a specific type of medical counseling for prohibition. “Until today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds” (Rust vs. Sullivan 18). Blackmun claimed that the intention behind the gag rule was to prevent a class of speech which the current administration was morally opposed to. It is a well established principle of 1st Amendment jurisprudence that the government does not have the ability to restrict speech based solely on its message or content. Thus, the ultimate result of the Rust decision was that it effectively reversed nearly 20 years of policies which had permitted non-directive, comprehensive medical options counseling with regard to childbirth (American Civil Liberties Union 7). The retirement of Justice Brennan prevented the liberals from obtaining the Fifth vote necessary in order to repudiate the Reagan administration’s policies. While this ruling was viewed by many pro-choice advocates as another attempt by conservative judges to impose restrictions on abortion, the Rust decision did not cut back on Roe in any way. Roe can be interpreted as solely establishing a prohibition on the criminalization of abortion during the first two trimesters of pregnancy. Therefore, Roe itself did not preclude the government from preventing doctors from encouraging abortions. Regardless of the Court’s holding in Rust, President Clinton repealed the gag rule upon assuming office in 1993, temporarily ending the debate over the issue (American Civil Liberties Union 7). However, during his first day in office in January 2001, President George W. Bush not only reinstated the gag rule, but extended its reach to the activities of international organizations. This newly expanded global gag rule restricts foreign organizations that receive USAID (from the U.S. Agency for International Development) family planning funds from using their own domestic funds to provide legal abortion services, encouraging their national government to enact abortion reforms, or even providing accurate medical counseling regarding abortion (Center for Reproductive Rights 1). Thus, the effects of President Bush’s pro-life policies have not been confined only to the American public: instead, they have effectively been imposed on the international community as well. The 2008 Presidential Election will likely determine whether or not this global gag rule will survive into the future.
The Court experienced another major shift in its composition when the liberal protector of abortion rights, Thurgood Marshall, retired from the bench in October 1991. In response to conservatives’ disappointment in President Bush’s appointment of David Souter (who turned out to be much more moderate than expected), Bush attempted to satisfy his base by nominating a more extreme candidate. The worst fears of the pro-choice advocates were realized on October 15, 1991, when Clarence Thomas was confirmed to replace Justice Marshall, by a vote of 52-48 (Toobin 22). During his confirmation hearings, Thomas had explicitly voiced his opposition to Roe’s central holding. Within weeks after being confirmed, Thomas was presented with the opportunity to overturn Roe once and for all, in the case of Planned Parenthood of Southeastern Pennsylvania vs. Casey. “For the first time since Roe vs. Wade was decided nineteen years earlier, eight of the nine justices on the Court had been appointed by Republicans, whose party was publicly and officially committed to ending legalized abortion” (Toobin 36). With the majority of the justices on the Court opposed to the practice of abortion at least in theory, the demise of Roe appeared to be imminent. In response to the increasing flexibility provided to the states by the Webster decision, Pennsylvania amended its Abortion Control Act to include a number of burdensome restrictions on abortion which nevertheless fell short of outright bans. These amendments included several provisions: that a woman seeking an abortion give her informed consent prior to the abortion procedure after being provided with certain information at least 24 hours before the abortion is performed, that a minor seeking an abortion must obtain the consent of one parent or a judge if the minor does not wish to obtain a parent’s approval, that a married woman seeking an abortion must sign a statement indicating that she has notified her husband of her intended abortion, and that facilities providing abortion services must comply with specific reporting requirements (Planned Parenthood of Southeastern Pennsylvania vs. Casey 2).
In addition to the legality of the specific provisions of the Pennsylvania statute, the American public believed that a more fundamental question was at stake in the Casey dispute: would Roe vs. Wade be overturned altogether? At least initially it appeared that this would be the case. Personal notes from the writings of Justice Blackmun revealed that Chief Justice Rehnquist had started composing an opinion overturning Roe, which was supported by Thomas, Scalia, White, and Kennedy (CNN 1). Rehnquist’s draft opinion explicitly condemned Justice Blackmun’s majority opinion in Roe. “The Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a ‘fundamental right’” (Toobin 54). If accepted by a majority of the Court, Rehnquist’s opinion would have permitted the states to regulate or even proscribe abortion prior to viability. However, internal lobbying by Justices O’Connor and Souter eventually convinced the ambivalent Kennedy to support a compromise position, upholding at least the core of Roe.
The three justices began their joint opinion by reaffirming Roe’s core holding. According to their opinion, this holding consisted of three central tenets: that a woman’s right to undergo an abortion can not be removed prior to viability, that the State has the authority to restrict the right to abortion after viability as long as exceptions are provided for abortions necessary to preserve the woman’s life or health, and the principle that the State has a legitimate interest from the outset of pregnancy in protecting both the health of the woman and the life of the fetus that may become a child (Wharton, Frietsche, and Kolbert 14). In upholding Roe, the majority emphasized the role of stare decisis in promoting consistency and predictability in the law. “To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 21). Overturning Roe would serve to substantially undermine the Court’s integrity, due to the fact that its reversal would likely be perceived by the public as solely a result of the changing membership of the Court since 1973. Therefore, the repudiation of Roe could ultimately weaken the Court’s ability to exercise sovereign judicial power.
The joint opinion attempted to draw a crucial distinction between the three fundamental tenets of Roe and the peripheral concept of the trimester framework. “The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 36). The majority articulated that the trimester framework unnecessarily limited the State’s interest in safeguarding potential life, by permitting restrictions on first trimester abortions only if the government could prove that they served to protect women’s health. In place of the rigid trimester framework, the Court adopted the undue burden standard, which Justice O’Connor had advocated in several previous cases, including Thornburgh. “A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 39). An undue burden exists when the means chosen by the State to pursue its interest in protecting prenatal life substantially hinder a women’s ability to procure an abortion prior to the period of viability. The significance of the Casey majority’s replacement of Blackmun’s trimester framework with O’Connor’s undue burden standard is twofold. For one, Casey articulated that protecting women’s health is not the only justification for the State to impose restrictions on abortion prior to viability. “Though the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 38). According to the majority, not all governmental intrusion into a woman’s decision of whether or not to undergo a pre-viability abortion is unwarranted. For example, the joint opinion notes that the State may, as a means of expressing its interest in protecting potential life, encourage a woman seeking an abortion to at least be informed of the various philosophic and social implications of the abortion decision. Unlike under the trimester framework, the undue burden standard permits the State to regulate pre-viability abortions in order to promote the State’s interest in potential life, as long as the specific regulations do not unduly burden a woman’s access to abortion.
Furthermore, the other major implication of the invalidation of the trimester framework is the alteration of the standard by which to judge future restrictions on abortion. “Despite its strong language, however, the joint opinion also altered key aspects of Roe vs. Wade, rejecting Roe’s strict scrutiny standard” (Wharton, Frietsche, and Kolbert 14). Under the trimester framework, all pre-viability restrictions on a woman’s right to abortion were subject to the highest standard of constitutional protection. In other words, these restrictions were viewed as inherently suspect and would only be upheld if the State could show a compelling reason for their enactment. The undue burden standard clearly represents less constitutional protection for abortion than that previously provided by strict scrutiny. However, as will be discussed later, a serious examination of the undue burden standard indicates that the Casey majority attempted to replace the trimester framework with at least a relatively rigorous standard which could be used to invalidate future restrictions on abortion.
Upon developing and articulating this undue burden standard, the Court applied it to the four distinct provisions implicated in the case at hand. With regard to the informed consent provision, the Court held the measure to be constitutionally permissible. “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 40). The joint opinion effectively overturned the section of the Thornburgh decision that prevented the State from requiring the giving of information about the nature of the abortion procedure and the probable gestational age of the fetus to a woman seeking an abortion. According to the majority, as long as this information was truthful and nonmisleading, the State had a right to provide this information. Had the Court failed to replace the trimester framework with O’Connor’s undue burden standard, it is likely that the informed consent measure would have been invalidated. “Although Roe had generally acknowledged the state's ‘important and legitimate’ interest in the fetus, Justice Blackmun was careful to recognize that interest as compelling only after viability” (Borgmann 6). Under the trimester framework, the Court generally refused to permit the State to pursue its interest in protecting potential life until the end of the second trimester. However, the adoption of the more flexible undue burden standard effectively allowed the State to promulgate reasonable measures designed to advance its interest in prenatal life from the outset of pregnancy. This standard was used by the Casey Court to uphold the parental consent provision as well. Thus, the validation of the informed consent provision, despite the previous precedent established in Thornburgh, indicates that the adoption of the undue burden standard does have the potential to alter significant portions of the Court’s abortion jurisprudence.
On the other hand, the Court ruled that the spousal notification provision was not permissible under the new standard. The joint opinion explicitly rejected the argument articulated by Pennsylvania, that the husband notification provision was not unduly burdensome because the vast majority of married women voluntarily tell their husbands about their abortion decisions, and thus only a small percentage of women would be affected by the measure. “The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant” (Wharton, Frietsche, and Kolbert 17). According to the majority, the inquiry of importance was not determining whether or not a majority of women would be denied protection by the law, but rather observing if any women at all would be disadvantaged by the provision. Although the Court acknowledged that the notification measure may only affect about 1% of women, the effects could potentially be devastating for this class of women. “But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion” (Planned Parenthood of Southeastern Pennsylvania vs. Casey 44). The Court used social scientific evidence provided by the American Medical Association in order to justify its assertion that the spousal notification scheme amounted to an undue burden. Under the provision, women subject to psychological or physical abuse were not exempt from notification requirements. A measure of the provision’s inflexibility is that as a result of the very limited sexual assault exception contained within its text, many women who become pregnant as a result of sexual assaults by their husbands will not be able to avail themselves of the requirements if they fail to report the assault to law enforcement within 90 days (Planned Parenthood of Southeastern Pennsylvania vs. Casey 45). Therefore, due to the fact that the measure imposed a substantial obstacle in the path of a woman seeking an abortion, the majority invalidated the spousal notification provision under the undue burden standard.
As exemplified by the invalidation of the husband notification provision, the undue burden standard did provide a significant level of protection for a woman’s right to an abortion. For example, the undue burden standard allowed the Court to reference social science evidence in order to safeguard the right to abortion. “In applying the undue burden standard to the husband-notification provision, the joint opinion authors were strikingly sensitive to the specific social context in which forced husband notification would operate, connection and understanding the interrelationship between domestic violence and women’s reproductive autonomy” (Wharton, Frietsche, and Kolbert 18). Just as the Court would have under the trimester framework, it effectively deferred without question to the findings of the American Medical Association on the significant dangers posed by compelling abused women to notify their husbands of their intention to procure an abortion. Therefore, while critics charged that the elimination of the trimester framework removed much of Roe’s substance, the actual effect of the joint opinion was to remove Roe’s outer shell. The repudiation of the trimester framework did not serve to limit a woman’s right to procure an abortion prior to the period of fetal viability.
Further support for the position that the undue burden standard does not represent a dramatic rebuke of Roe is shown by the fact that the joint opinion did not adopt the term undue burden as used in several of O’Connor’s previous opinions. Instead, the Court made a concerted effort to redefine the term in order to make it more conducive to ensuring women’s access to abortions. “In refining the undue burden analysis the plurality rejected its narrow formulation in Justice O’Connor’s prior opinions, which had defined undue burden as an ‘absolute obstacle or severe limitation on the abortion decision’” (Wharton, Frietsche, and Kolbert 15). In an important revision, the joint opinion replaced the term absolute obstacle with the much more protective term of substantial obstacle. The significance of this alteration is that the Casey majority articulated the principle that abortion regulations may still present an undue burden even in cases where they do not serve to ultimately prevent a woman from obtaining a pre-viability abortion procedure. In addition to this revision, the Court subsequently stated that regardless of a regulation’s intention, if its actual effect is to place an undue burden in the path of a woman seeking an abortion, then it would not be constitutionally permissible. Thus, while the Casey decision removed abortion from the special class of rights known to be fundamental to the proper functioning of a democratic society, in its place it created a new standard which in practice served to provide reasonable protection for the right to abortion first established in Roe.
Despite the relative success of the pro-life movement in repudiating Blackmun’s trimester framework in the Casey decision, Justice Scalia was ultimately left to file another scathing dissent, chastising the majority for failing to touch Roe’s core yet again. “Justice Scalia criticized the joint opinion authors for ‘stealthily downgrading the State’s interest in unborn human life from a compelling interest to a merely substantial or profound interest’” (Wharton, Frietsche, and Kolbert 24). Scalia articulated that Casey’s joint opinion should be viewed by pro-life advocates as counterproductive due to the fact that it effectively downplayed the interest of the State in safeguarding fetal life. While Casey was by no means a significant victory for the left, the right perceived the ruling to be a major setback for the pro-life movement. Thus, although the conservative bloc on the Court dedicated nearly 20 years to attempting to overturn Roe once and for all, Roe’s core ultimately remained steadfast when President George W. Bush assumed the presidency in January 2001.
The Roberts Court: Finally Curtailing Roe’s Core Holding
President Bush, himself a devout born again Christian, was sent to the White House due in large part to his mobilized base of socially conservative evangelicals. The evangelicals had established an impressive financial network which allowed them to quickly transform into an increasingly important branch of the Republican Party. The evangelicals urged the party to adopt their agenda of reinstituting prayer in public schools, permitting religion in civic life, expanding private school voucher programs, promoting faith-based initiatives, prohibiting gay marriage, and most importantly reversing Roe vs. Wade. Thus, when Bush was presented with the opportunity to appoint a new Chief Justice to replace the late William Rehnquist, the issue of abortion was foremost on his mind. Rehnquist’s replacement, John Roberts, was viewed as an extremely well qualified, but also very conservative judicial nominee. When asked about Roe during his confirmation hearings, Roberts responded that it was undoubtedly a settled precedent of the Court, but subsequently pointed out that stare decisis is not the only factor to be considered in a specific area of the Court’s jurisprudence (Toobin 281). Therefore, Roberts did not rule out the possibility that he would vote to overturn Roe. Regardless of Roberts’ personal views on abortion, his appointment to the Court did not initiate a shift in the Court’s abortion jurisprudence. Instead, Roberts effectively served to vote in place of the former Chief Justice, for the position that Rehnquist would have voted for had he still been Chief Justice.
On the other hand, Bush’s second appointment was one of enormous importance. After his initial nomination of former White House counsel Harriet Miers went under as a result of protest by pro-life interest groups who were not convinced of her commitment to the evangelical agenda, Bush pledged to nominate a candidate with impeccable conservative credentials. His choice, Third Circuit Court Judge Samuel Alito, served to greatly satisfy the evangelical base. As it so happened, Alito had been on the three judge panel that had adjudicated the Casey dispute prior to its review by the Supreme Court. While two of the three judges though that the spousal notification was unconstitutionally burdensome, Alito disagreed. “He wrote his own opinion saying he would have approved the Pennsylvania law in full and thus offered the states a road map to restricting abortions as much as possible without outlawing the practice altogether” (Toobin 300). The evangelicals praised Alito for his expansive view on the authority of the states to regulate abortions. Under the test that Alito proposed for evaluating restrictions on abortion, any regulation which reasonably advanced the State’s interest in protecting potential life would be upheld (Toobin 300). Regardless of the regulation’s potential burden to be placed on a woman seeking an abortion, Alito would refuse to invalidate it so long as it exemplified a rational relationship to the State’s interest. Thus, legal analysts predicted that the replacement of the ever so moderate Sandra Day O’Connor, herself primarily responsible for precluding Roe’s demise in the carefully worded Casey joint opinion, with the ardent opponent of abortion rights, Samuel Alito, would substantially alter the Court’s ideological balance on the abortion issue.
The most important abortion dispute to reach the Roberts Court’s docket thus far has been the 2007 case of Gonzales vs. Carhart. Carhart can effectively be viewed as a test case, designed to determine the extent of the impact of Alito’s appointment to the Court on the Court’s abortion jurisprudence. The dispute involved the legality of the Partial-Birth Abortion Ban Act of 2003. The act proscribed the method of intact dilation and extraction from being used by a medical doctor in order to end a fetal life (Grossman and McClain 1). While the law contains an exception for when the mother’s life is in danger, it lacks a health exception. Indeed, in the 2000 case of Stenberg vs. Carhart, the Court by a 5-4 vote had struck down a very similar prohibition on intact dilation and extraction in Nebraska. “The Court found two fatal flaws in the Nebraska ‘partial birth abortion’ ban: the failure to make an exception to preserve the mother's health, and the vagueness of law's description of the outlawed procedure” (Grossman and McClain 2). The Stenberg majority articulated that a ban on dilation and extraction must be explicitly worded and contain a health exception in order to be considered a reasonable restriction on abortion. However, when the Court considered the validity of the federal partial birth abortion ban in 2007, the swing vote of Sandra Day O’Connor had since been replaced by the undoubtedly conservative vote of Alito. Thus, this time around the Court again voted 5-4, but this time to uphold the ban.
In his majority opinion, Justice Kennedy attempted to distinguish the Nebraska statute from the federal law at issue in the case at hand. “Unlike the statutory language in Stenberg that prohibited the delivery of a ‘substantial portion’ of the fetus-where a doctor might question how much of the fetus is a substantial portion-the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other” (Gonzales vs. Carhart 17). Kennedy addressed the vagueness argument by noting that unlike the Nebraska law, the federal law explicitly defined the scope of the procedure to be prohibited. Due to the fact that Congress promulgated detailed findings prior to enacting the ban, Congress paid more careful attention to the specific components of the procedure than Nebraska did. Thus, Kennedy articulated that the law did not significantly restrict the ability of doctors to perform second trimester abortions. Furthermore, although the federal law did not contain a health exception, Kennedy did not believe that this fact alone caused the law to be unconstitutionally burdensome. “There is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women” (Gonzales vs. Carhart 28). While Kennedy acknowledged that many doctors testified that a health exception was necessary in order to preclude the occurrence of injury, other doctors had testified in the opposite direction. Due to the fact that there is no medical consensus on whether or not intact dilation and extraction is ever medically necessary, Kennedy asserted that the effects of the ban on women would not necessarily serve as a substantial obstacle. Therefore, the Court determined that there is no compelling reason to invalidate a provision which could potentially harm women, but has not at the current time been empirically shown to do so.
In his opinion, Kennedy attempted to justify his reasoning on moral grounds by stating that on numerous occasions, women have regretted their decisions to undergo abortion procedures. “It seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained” (Gonzales vs. Carhart). Kennedy’s moral beliefs are clearly exposed in this opinion by his word choice. Instead of referring to the unborn child as a fetus, he used the term “infant life.” We can infer from his opinion that Kennedy believes that if any woman knew just how terrible the procedure of dilation and extraction was, they would choose not to undergo it (Lithwick 4). Kennedy also stated that it is not the job of the Court to determine whether or not dilation and extraction is morally acceptable: instead, that judgment should be left up to Congress. Due to the fact that the majority of Congress believes the procedure to be immoral, now all women regardless of their moral beliefs are prohibited from using it. This section of Kennedy’s opinion patronizes women in general by articulating that by prohibiting intact dilation and extraction, the Court was trying to protect women’s mental and moral health. The underlying assumption of this belief is that women are not knowledgeable enough to make important decisions relating to childbirth on their own, without the State providing moral guidance. Thus, Kennedy effectively downplayed the use of legal reasoning in his opinion, and instead imposed what he believes to be his morally superior position on all women seeking second trimester abortions.
The Carhart ruling has been the first Supreme Court decision to effectively undermine Roe’s fundamental holding: that a woman has a right to an abortion at any time up until the period of fetal viability (between the 27th and 28th weeks). Now, a woman planning on using the intact dilation and extraction method can be prohibited from having an abortion as early as the 12th week of pregnancy. According to Justice Blackmun, while the states could impose restrictions on a woman seeking an abortion prior to the period of fetal viability, they were not allowed to proscribe abortion. Due to the fact that Blackmun did not create any exceptions to this rule within his opinion, we can infer that Roe prohibits the states from proscribing a particular method of abortion as well, prior to fetal viability. This decision is the first time since 1973 that the Court has upheld the ban of an abortion procedure before the period of fetal viability. Anti-abortion activists would counter this argument by stating that a woman is not precluded from having a 2nd trimester abortion: she is only prohibited from using one particular method. However, the reason intact dilation and extraction is used instead of other methods is because a woman has the least probability of experiencing permanent injury to her uterus when this technique is used (Lithwick 2). “According to the expert testimony plaintiffs introduced, the safety advantages of intact D & E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems” (Gonzales vs. Carhart 38). As stated by Justice Ginsburg in her dissenting opinion, under a plethora of different circumstances, dilation and extraction is safer to use than any other late-term abortion method. Prohibiting dilation and extraction will not cut back on 2nd trimester abortions: it will simply cause more women to be injured in the process. As a result of the Carhart ruling, some women with heart disease will thus be unable to undergo abortions after the 12th week of pregnancy, due to the fact that any other method of abortion besides dilation and extraction may be detrimental to their health. At least for this specific disadvantaged class of women, the right to procure an abortion at any time prior to the period of fetal viability no longer exists. Justice Blackmun’s opinion in Roe did not only guarantee the right to undergo a pre-viability abortion to the majority of women: rather, Blackmun established the principle that this right could not be denied to even a single woman. Thus, while Carhart did not overturn Roe directly and place the abortion decision entirely into the hands of the State, it did significantly curtail Roe’s core by limiting the opportunity for at least some women to undergo second trimester abortions.
Conclusion: The Importance of the 2008 Presidential Election and Ginsburg’s Alternative Basis for Abortion
While the Rehnquist Court was able to cut back on much of Roe’s outer shell, it ultimately was unable to strike a substantial blow to Roe’s core. However, as exemplified by the Carhart Court’s willingness to permit the placement of substantial obstacles in the path of a woman seeking an abortion, it appears likely that the Roberts Court will continue to uphold abortion regulations in the future. Kennedy’s opinion indicates that the next goal to be pursued by the conservative bloc will probably be the elimination of second trimester abortions altogether. “It seems likely that the next spate of abortion restrictions, sponsored by opponents of Roe and Casey, will attack D & E as a ‘gruesome’ and ‘inhumane’ procedure that offends (to use Justice Kennedy's term) the ‘dignity’ of life” (Grossman and McClain 4). Now that intact dilation and extraction has been prohibited, pro-life groups will next use the same successful strategy consisting of graphic description of fetal dismemberment in order to ban dilation and extraction altogether. Dilation and extraction is the most commonly used abortion procedure during the second trimester, thus its prohibition would effectively eliminate all abortion procedures after the first 12 weeks of pregnancy (Grossman and McClain 4). If second trimester abortions are successfully prohibited, the conservative bloc will likely continue using this incremental approach to uphold restrictions on even earlier abortion procedures, ultimately leading to the complete demise of Roe and placing the abortion decision solely in the hands of the individual states. The demise of Roe would lead to enormous disparities among the states, creating a situation in which a woman’s right to an abortion is safeguarded in one state, but not in another. Therefore, the horrifying memory of the days of back alley abortions would once again transform into a reality throughout much the Midwest and the South, endangering the lives of numerous women and leading to a perpetual growth in the number of unwanted children. Is there any way in which this bleak future can be prevented? Two courses of action could serve to save Roe vs. Wade: altering the basis for the right to abortion, and electing a Democratic president in 2008.
In her dissenting opinion in the Carhart case, Ginsburg articulated her own view of the constitutional basis for abortion rights. Unlike the other liberals on the Court, Ginsburg did not agree that the right to abortion was firmly grounded in the notion of privacy. “Rather, as she wrote in her dissent in Gonzales vs. Carhart, ‘legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy: rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature’” (Toobin 330). According to Ginsburg, the basis for the right to abortion should be shifted from privacy to equal protection. Ginsburg believes that restrictions on abortion effectively serve to perpetuate gender inequality (Allen 11). Under this perspective, burdensome regulations of abortion procedures would be invalid because they unfairly restrict the ability of individual women, but not men, to make their own decisions relating to childbirth. Although Souter, Stevens, and Breyer joined in her opinion, Ginsburg has thus far been unable to convince a fifth justice to alter the constitutional basis for abortion. However, Justice Kennedy has always been skeptical of abortion’s foundation in the right to privacy, leading some legal analysts to believe that the alteration of the basis for abortion is currently within reach.
The primary problem with using privacy as the basis for abortion is that its basis even today is still somewhat ambiguous. It is unclear if the foundation of privacy is located in Douglas’ penumbra of rights, the Ninth Amendment, or is a substantive right protected by the Due Process Clause. This ambiguous basis has allowed the pro-life movement to advance the argument that due to the fact that abortion is not safeguarded by any single constitutional provision, it is not worthy of constitutional protection. Furthermore, it is impossible to empirically show the link between abortion and the abstract concept of privacy. Although the argument can be made that these two concepts are related, it is hardly the case that they are inseparable. For example, legal analyst Cass Sunstein has articulated his belief that the notion of conventional privacy is unrelated to the realization of abortion rights (Allen 11). On the other hand, equal protection could serve as a more concrete basis for the right to abortion while simultaneously promoting gender equality. “Privacy law and other ‘legal attempts to advance women’ are based on false assumptions about the status quo, ‘as if women were citizens -- as if the doctrine was not gendered to women's disadvantage, as if the legal system had no sex, as if women were gender-neutral persons temporarily trapped by law in female bodies’” (Allen 13). The privacy doctrine would only work to successfully advance abortion rights if it were the case that women were equal in every respect under the law. Although this situation may be ideal, it is not an accurate representation of reality even in the contemporary era. At least to some degree, women and men are still confined to traditional gender roles with regard to both public and private life. Therefore, the privacy argument should be discarded due to the fact that it relies on the false underlying assumption of the existence of a completely autonomous state for women and their fetuses (Allen 14). Instead of a privacy issue, restrictions on abortion could be viewed as an attempt by conservative state legislatures to treat women in a disparate manner under the law, effectively making women subordinate to men in the area of childbirth determinations. It would be more challenging for the Court to uphold an abortion regulation under this new standard, due to the fact that it would be viewed by many as a judicial attempt to reinforce the traditionally subordinate position of women within American society, which likely would not be tolerated by the general public. If this standard were adopted by a majority of the Court, every abortion decision handed down by the Court would have substantial implications for the advancement or curtailment of women’s rights in general. Under this altered basis, the Court would be forced to tread with caution, in order to avoid undermining its own legitimacy by issuing a decision perpetuating these gender roles. Thus, the adoption of this more concrete basis has the potential to make it more difficult for the Court to uphold burdensome restrictions on a woman’s right to an abortion.
The 2008 Presidential Election may ultimately be the determining factor in influencing whether or not this future state will someday become a reality. Examining the current composition of the Supreme Court indicates that the pro-life movement has four votes they can count on for overturning Roe: Scalia, Thomas, Roberts, and Alito. On the other hand, abortion proponents also have four votes they can count on for upholding Roe: Ginsburg, Breyer, Souter, and Stevens. Kennedy, the crucial swing vote, joined O’Connor’s opinion in Casey reaffirming Roe’s core holding. Thus, although it may come very close, the current Court will most likely not be able to succeed in overturning Roe. However it is likely that at least one if not both of the Court’s leading liberals, Justices Stevens and Ginsburg, at ages 87 and 74 respectively, will retire during the Court’s next few terms. Due to the Republican Party’s continued interest in the abortion issue, the election of the Republican candidate to the White House in 2008 would all but ensure the end of Roe. “Roe is always hanging by a thread. So much in the future depends on who on the Supreme Court resigns and who replaces them” (Cooper 1). As a result of the fact that the pro-life movement would not tolerate a candidate nominated by a Republican president who fails to express active opposition to Roe, if elected in the general election, this candidate would if given the opportunity appoint justices to the Supreme Court who will vote to overturn Roe. Thus, abortion proponents must mobilize in order to prevent the ascension of another pro-life president to the White House. If they ultimately fail, Justice Scalia’s radical position may finally be transformed into substantive law.
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