[6.6.] The Right to Privacy: Abortion.

 

We have examined a number of Supreme Court decisions relevant to the constitutional right to privacy:

·         Skinner v. Oklahoma (1942)

·         Poe v. Ullman (1961)

·         Griswold v. Connecticut (1965)

 

These cases were the precursors of the Court’s decision in Roe v. Wade (1973), which appealed to the constitutional right to privacy identified in Griswold and found that the right to an abortion fell within women’s privacy rights.

 

 

[6.6.1.] Roe v. Wade (1973)

 

Norma McCorvey (at the time known as Jane Roe to protect her identity) brought a class-action lawsuit against Henry Wade, the district attorney of Dallas County, Texas, challenging the constitutionality of Texas’ abortion laws.[1] Those laws prohibited abortion except in order to save the life of the mother. Many other states had similar statutes at the time.

 

In the majority decision, Justice Harry Blackmun relied upon the substantive component of the due process clause of the 14^th amendment:

 

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. [2]

 

Why “qualified”? Because the Court wanted to balance “a woman’s right to terminate a pregnancy ... against the rights of the fetus, which increase as gestation time increases.”[3] In other words, the Court did not intend to give women an absolute right over their bodies and their gestating fetuses. They held that fetuses might also have rights, and those rights should be taken into consideration as well.

 

 

[6.6.1.1.] Viability.

 

The Roe decision did not view all state laws criminalizing abortion as unconstitutional. It allowed that states could still enact laws criminalizing abortion after viability.

 

The court defined viability as the time at which the fetus is “potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about 7 months (28 weeks) but may occur earlier, even at 24 weeks.” The Court did not specify that viability had to begin within the 24-28 week range, nor did it specify how it could be determined in a given case that a fetus was viable.

 

Because of improved medical technology, the boundary of viability has, since the Roe decision, been pushed back to about 22 weeks.

 

Viability is defined as the ability of fetuses to survive in the extrauterine environment... There is no sharp limit of development, age, or weight at which a fetus automatically becomes viable or beyond which survival is assured, but experience has shown that it is rare for a baby to survive whose weight is less than 500 gm or whose fertilization age is less than 22 weeks. Even fetuses born between 26 and 28 weeks have difficulty surviving, mainly because the respiratory system and the central nervous system are not completely differentiated...[4]

 

The youngest known fetus to survive premature birth was Amillia Taylor, born in Miami in October 2006, at the gestational age of 21 weeks and 6 days.[5]

 

 

[6.6.1.2.] Roe’s Trimester System.

 

Roe v. Wade established the following trimester system (pp.327-28, emphases added):

1)      Up until 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.”

2)      At the beginning of the second 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”

3)      At the point of 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.” (emphases added)

·         “may, if it chooses”: this leaves it open to the states to allow abortion up until the time of birth.

·         “life or health”: states can permit abortions after viability, not only to save the life of, but also to protect the health of, the mother

 

The state of Georgia prohibits abortions after the second trimester except to protect the life or health of the mother:   No abortion can be performed after the second trimester unless the physician and two consulting physicians certify that the abortion is necessary in their best clinical judgment to preserve the life or health of the mother.  (GA Code 16-12-141)   Other Georgia restrictions on abortion:   ·         The parent of a minor must be notified before an abortion is provided. ·         Public funding is available for abortion only in cases of life endangerment, rape or incest.*   *“State Facts About Abortion: Georgia.” Alan Guttmacher Institute: http://www.guttmacher.org/pubs/sfaa/georgia.html

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[6.6.1.3.] A Dissenting Opinion.

 

Justice William Rehnquist wrote one of two dissenting opinions (the other was written by Justice Byron White). In part, Rehnquist wrote:

 

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. ... By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 and “has remained substantially unchanged to the present time.” ...

There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter. (emphasis added)

 

 

[6.6.2.] Planned Parenthood of Southern Pennsylvania v. Casey (1992).

 

In this ruling, otherwise known as “the Pennsylvania decision,” the Court upheld Roe v. Wade.

 

The Court considered five provisions of the Pennsylvania Abortion Control Act of 1982:

 

1)      the informed consent rule: “a woman seeking an abortion [must] give her informed consent prior to the procedure, and ... be provided with certain information at least 24 hours before the abortion is performed”;

2)      the parental notification rule: one parent of a minor seeking an abortion must be notified (the provision provided a judicial bypass procedure for this requirement);

3)      the husband notification rule: “unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband”;

4)      this provision defined a “medical emergency” that excused compliance with the first three provisions;

5)      this provision “impose[d] certain reporting requirements on facilities providing abortion services.”[6]

 

The Court described the origins of the suit:

 

Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others. [7]

 

The Court found the husband notification rule unconstitutional because it constitutes “an undue burden” on the woman. The majority decision explains the notion as follows:

 

To protect the central right recognized by Roe while at the same time accommodating the State's profound interest in potential life, ... the undue burden standard should be employed. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability. (330)

 

The other four provisions were found not to be unconstitutional and in particular not to constitute undue burdens.

 

In this ruling, the Court introduced the idea that states may impose restrictions on abortion prior to viability, so long as those restrictions do not constitute undue burdens on the mother.

The Casey Court also rejected Roe’s trimester system:

 

Roe's rigid trimester framework is rejected. To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed. Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right. (330, although the first sentence is apparently misquoted by Simon)

 

 

A decision in Gonzalez v. Carhart was handed down today (April 18, 2007). The Court upheld the federal “Partial Birth Abortion Ban” of 2003. The statute outlaws intact dilation and extraction as a method of aborting a pregnancy. According to the Court, because there are other methods available, this ban does not impose an undue burden on women. See http://www.nytimes.com/2007/04/18/us/18cnd-scotus.html?hp .

 

 

[6.6.3.] Noonan Against Abortion

 

John Noonan (b.1926, Boston)

·         formerly a professor of law at Notre Dame and UC Berkeley.

·         currently a judge on the U.S. Court of Appeals, Ninth Circuit; appointed by President Reagan in 1985.

·         our reading is an excerpt from his 1984 article “The Root and Branch of Roe v. Wade”

 

Noonan compares the attitude of the Roe Court to that of the Court that decided the case of Scott v. Sanford (1856), in which the Court held that no one of African descent could ever be a citizen of the United States, even if he or she was not a slave, and that the federal government had no legal right to prohibit slavery in federal territories.

 

Noonan sees both the Scott decision and recent decisions regarding abortion as stemming from the view that whether or not an entity is a person is a matter of law and nothing else:

 

...even the apparently natural physical person is a construction of juristic thinking. In this account it appears that just as we personify a corporation for legal purposes so we personify natural physical beings. There are no independent, ontological existences to which we respond as persons. Personhood depends on recognition by the law. (331)

 

Once this view is adopted, then the laws can be formulated so that anything whatsoever is a person, with corresponding rights and duties, and that anyone whosever is not a person, and thus lacks legal rights and duties:

 

... law can operate as a kind of magic. All that is necessary is to permit legal legerdemain [tricks] to create a mask obliterating the human person being dealt with. Looking at the mask—that is looking at the abstract category created by the law—is not to see the human reality on which the mask is imposed... (332)

 

It was apparently quite easy for jurists in the mid 19^th century to place this “mask” on people of African descent and see them not as persons but as property. And it seems even easier to put the “mask” on unseen fetuses:

 

...intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see— ... they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye. (333)

 

This attitude toward personhood, then, is the root of Roe v. Wade.

 

And its branch is the sort of legal “fantasy in the service of ideology” in which the Court engaged in that decision. Once this understanding of personhood has been accepted,

 

... the judges at the apex of a system [are permitted] to dispense with correspondence to reality. The highest court is then free, within the limits that the society in which it functions will tolerate, to be inventive. It may, as the Supreme Court of the United States has sometimes thought, be constrained by the language of the Constitution and the purposes of its makers. Or, as has also sometimes happened, the Court, viewing itself as the final expounder of the Constitution’s meaning, will exercise its inventiveness in creating new constitutional doctrine not dependent on text or purposes. Such doctrine—fantasy in the service of ideology—is “the branch” of Roe v. Wade. (333, emphasis added)

 

 

 

Stopping point for Wednesday April 18. For next time, read pp.339-49.