Roe and Griswold

• Is the right to abortion a fair inference from Griswold? Put another way, can Griswold be distinguished?

• In a sense, Roe is a stronger case than Griswold, because the right to bodily integrity has always been recognized as a core liberty interest.

• Perhaps abortion is different because pregnancy is in some sense voluntary. On the other hand, (1) some intercourse is not always voluntary; and (2) voluntary intercourse is not always voluntary pregnancy. When a woman consents to intercourse, is it fair to say that she assumes the risk of pregnancy?

• What about the government’s interest? SCt said that fetal life is not an important enough interest, but it offered little argument for that assertion.

• Is it relevant that, in other contexts, people are not required to be good Samaritans? Is it relevant that outlawing abortions does not seem to reduce the frequency of abortions much, but forces poor women to resort to dangerous, unlicensed procedures? Is the status of the fetus a religious question, on which the state may not take a position?

Planned Parenthood V. Casey – Abortion waiting period and other restrictions

• 1992. This was a watershed case, because it was thought that the new Republican appointees (O’Connor, Souter, and Kennedy) might vote to overrule Roe. Instead, they joined in a plurality opinion reaffirming it. However, important aspects of Roe – including abortion’s status as a “fundamental right,” the state’s almost complete inability to regulate first-trimester abortions, and in fact the whole trimester framework of Roe – were all overturned. As a result of Casey, the states may restrict abortion so long as they do not place “undue burdens” on the woman’s right to choose.

• Pennsylvania Statute. This statute placed a number of significant restrictions on abortion, such as a requirement that the woman wait for 24 hours after receiving from a doctor certain information about abortion, and a requirement that a married woman notify her husband of her intent to abort. Several of these restrictions were clearly unconstitutional judged by the standards of the SCt’s post-Roe decisions.

• Holding. SCt voted by 5-4 to maintain Roe v. Wade as precedent, but by 7-2 to allow states to regulate more strictly than Roe and its progeny had allowed.

• Significance of Casey.

• Abortion as protected interest. The case seems to ensure that a woman’s right to decide whether to terminate her pregnancy will be an interest that receives special constitutional protection. For example, it seems completely clear that a state may not simply forbid all abortions, or even all abortions occurring, in, say, the second trimester. Similarly, it seems clear that a state may not forbid all pre-viability abortions except those necessary to save the life or health of the mother. Any such regulation would certainly be considered by five Justices to be an “undue burden” on abortion.

• Regulations easier to sustain. On the other hand, state provisions that in some way regulate the abortion process are much more likely to be sustained than they were prior to Casey. The pre-abortion counseling requirements of the Pennsylvania statute, the 24-hour notice provision, and the requirement that a minor’s parent give “informed” consent, are all provisions which either were, or would almost certainly have been, struck down under SCt case law that existed prior to Casey. Assuming that the state is really attempting to “regulate” abortion rather than proscribe it, only the most severe kinds of regulations – the spousal notification requirement struck down in Casey is one of the few actually-existing state restrictions that comes to mind – will constitute such an obstacle that it will be found to be an “undue burden” by the standard announced and applied in the joint opinion.

• Joint opinion. Three “centrist” judges (“O’Connor, Souter, Kennedy) formed a plurality opinion, which spoke for SCt on all points.

• Roe reaffirmed. Joint opinion began by stating broadly that it was reaffirming the “essential holding of Roe v. Wade.” The opinion saw this “essential holding” as having three parts: (1) the recognition of the “right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state,” (2) a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies endangering the woman’s life or health; and (3) a recognition of the state’s “legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.”

1. Rationale. The joint opinion appeared to agree not only with the “essential holding” of Roe, but with the constitutional analysis that gave rise to that decision. The opinion said it remains settled “that the USC places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Cases upholding the right to use contraception (e.g. Griswold) continue to be relevant to the abortion situation as well. Both the contraception and the abortion contexts “involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.”

2. Decision personal to the woman. Joint opinion also emphasized that the special nature of the abortion decision required that it be left to the woman alone, for it impacts upon her in a uniquely personal way. “The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear . . . Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”

• Stare Decisis. However, the joint opinion also suggested that its authors might not have endorsed the principles of Roe if the issue were appearing before the SCt for the first time. The opinion referred to the “reservations any of us may have in reaffirming the central holding of Roe.” But what tipped the scales in favor of reaffirming Roe was the force of stare decisis, the doctrine that says that courts should not lightly overturn precedent. Where a constitutional decision has not proven “unworkable,” and where overturning it would damage reliance interests, stare decisis dictated that the decision not be overturned.

1. Not “unworkable.” By this standard, Roe was a decision that should not be discarded. The decision had not proven to be “unworkable.” It was true that some of the factual assumptions underlying Roe had changed. For instance, the point of viability (after six months of pregnancy, at the time of Roe) had been advanced to a somewhat earlier time due to medical progress. But the core aspects of the Roe holding – such as the principle that a woman’s right to decide on whether to carry a pregnancy to term is a constitutionally-protected liberty interest, or the principle that viability is the earliest point at which the state may institute a general ban on abortions – had not proven unworkable during the 19 years following Roe.

2. Reliance. Similarly, there was a significant “reliance” interest in upholding Roe. “People have organized intimate relationships and made choices . . . in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

3. Shouldn’t overrule under fire: Finally, the legitimacy of the Court would be undermined if it were to overrule Roe. “Where, in the performance of its judicial duties, the SCt decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the SCt’s interpretation of the USC calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the USC.” In this respect, the only other comparable case from “our lifetime” was Brown v. Board of Education. If the SCt overruled Roe without a compelling reason to do so, it would be seen as surrendering to political pressure, a result that would “subvert the SCt’s legitimacy beyond any serious question.”

• The “undue burden” standard. The joint opinion abandoned two aspects of Roe, the trimester framework and (at least implicitly) the principle that any pre-viability abortion regulation must survive strict scrutiny.

1. Trimester approach rejected. The joint opinion noted that Roe used a trimester approach to govern abortion regulations; joint opinion did not agree that the trimester approach was a necessary method of safeguarding a woman’s right to choose. The biggest vice of the trimester approach was that it “undervalues the State’s interest in potential life,” because it completely ignores that interest during the first two trimesters.

2. The “undue burden” standard. In place of the trimester approach, the joint opinion articulated a new “undue burden” standard: “Only where state regulation imposes an undue burden on a woman’s ability to make [the decision whether to abort] does the power of the State reach into the heart of liberty protected by the Due Process Clause.” A state regulation will constitute an “undue burden” if the regulation “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Under this standard, if state regulations merely “create a structural mechanism” by which the state may “express profound respect for the life of the unborn,” and do not place a substantial obstacle in the woman’s path, the regulations will be upheld. Similarly, the state may regulate to further the health or safety of the woman, as long as the regulation does not unduly burden the right to abortion. After viability, the state may proscribe all abortions not needed to protect the health or life of the mother (a holding that does not represent any change from Roe or later cases).

3. Fundamental rights and strict scrutiny. The joint opinion implicitly rejected Roe’s view that the right to abortion is a “fundamental” right, and Roe’s concomitant rule that every pre-viability restriction on this fundamental right must survive strict scrutiny. The opinion did not discuss either the “fundamental rights” or “strict scrutiny” issue, but it is clear that the opinion did not in fact apply strict scrutiny to the Pennsylvania statute (and applied the “undue burden” test instead). So we must assume that abortion is no longer a fundamental right, and restrictions on it are no longer to be strictly scrutinized.

• Application to Pennsylvania Statute. The plurality then applied its new “undue burden” analysis to the Pennsylvania statute. All but one of the Pennsylvania restrictions were upheld as not being unduly burdensome:

1. Informed Consent. The statute contained an elaborate “informed consent” requirement, which the joint opinion upheld. First, at least 24 hours before performing an abortion, a physician must inform the woman of the nature of the procedure, the health risks of both abortion and childbirth, and the “probable gestational age of the unborn child.” (The waiting period was subject to an exception for “medical emergencies,” defined as situations where an immediate abortion is required to avert serious risk of death or major bodily impairment to the woman.) Second, either a physician or a qualified non-physician must inform the woman of the availability of state-printed materials describing the fetus and providing information about non-abortion alternatives (e.g. adoption, child support, etc.) The joint opinion found that these informed consent requirements did not “unduly burden” the woman’s right to choose to abort. The closest question came as to the 24-hour waiting period: here, the joint opinion relied mainly on the absence of any strong findings by the district court that the increased costs and potential delays which might stem from this waiting period were truly “substantial” obstacles. (The opinion acknowledged that the waiting period might well most heavily burden women with the fewest financial resources, those who must travel long distances, and those who have difficulty explaining there whereabouts to husbands, employers, or others. However, “on the record before us, and in the context of this facial challenge,” the joint operation was not prepared to say that the waiting period constituted an undue burden.

2. Spousal Notification. But the joint opinion struck down the statue’s “spousal notification” provision. Under that provision, a married woman could not receive an abortion without signing a statement that she had notified her spouse that she was about to undergo the procedure. The provision contained several exceptions, including one for the situation where pregnancy was the result of spousal sexual assault (provided that the assault was reported to the police within 90 days), and one applicable if the woman believed that notifying her husband would cause him or someone else to inflict bodily injury upon her. The joint opinion found that this spousal notification requirement was a substantial obstacle to abortion for some women: many fear that they will be psychologically abused by the husband, or that he will abuse their children (neither situation was covered by an exception in the notification requirement); others may fail to be able to use the exception for sexual assaults because they will be terrified to report the episode to the police, as was required for the use of that exception. The fact that the overwhelming majority of married women do notify their husbands was irrelevant; what counted was that as to that small percentage who do not voluntarily notify spouse, the requirement that they do so was a substantial impediment. The three Justices concluded their ruling on the spousal-notification requirement by asserting that the requirement reflected an outmoded view of the position of women in society: the requirement “embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the USC. Women do not lose their constitutionally protected liberty when they marry.

3. Parental Consent. The joint opinion upheld the statute’s parental consent provision, by which except in medical emergencies, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents provides informed consent. The statue allowed for a “judicial bypass,” by which a court could authorize performance of the abortion without parental consent, if the judge determined that the young woman had given informed consent and that an abortion would be in her best interest. The three justices had little trouble upholding this provision because it matched other “parental consent with possibility of judicial bypass” provisions that the SCt had previously upheld. One difference was that here, the parent’s consent must be shown to have been informed (which under the statue required the parent to listen to the alternatives to abortion and to hear about available state literature, 24 hours before the procedure). But the three Justices believed that the parental informed consent requirement was constitutional just as the requirement that an adult woman give her own informed consent was now constitutional; neither represented an “undue burden” on the right of abortion.

4. Record Kepping. Pennsylvania required each facility performing abortions to comply with detailed record keeping provisions (e.g. the filing of a report for each abortion, identifying the physician, the facility, the referring physician, the woman’s age, the number of prior pregnancies and prior abortions she had had, gestational age, type of abortion procedure, date of abortion, medical complications, weight of the aborted fetus, etc.) The provisions did not require disclosure of the mother’s identity. Because all elements of the record keeping were “reasonably directed to the preservation of maternal health,” they were all upheld by the joint opinion, except the one requiring disclosure of whether spousal notice was given.

• AK Critique. Plurality opinion had two parts. First reaffirmed Roe’s holding, invoking a broad reading of the privacy right. The second offered a theory of stare decisis, and explained why the Roe precedent should be adhered to. The two parts of the opinion are in some tension with each other:

1. If it is clear that Roe was correctly decided, then there is no need to rely on stare decisis, because the SCt would come out the same way even if it were writing on a blank slate. Stare decisis is only relevant when there is some doubt about the validity of the earlier precedent.

2. How persuasive is the plurality’s stare decisis argument? Is it ever appropriate to rely on precedent in constitutional decision making? Is Rehnquist right that “any traditional notion of reliance is not applicable here”?

• The Stevens and Blackmun opinions. Each concurred in part and dissented in part. Each agreed that Roe should be maintained as precedent, but each disagreed with the plurality as to how tightly the states may regulate abortion, and each believed that some of the Pennsylvania regulations upheld by the plurality were unconstitutional.

• Stevens. Argued that the right to abortion must be understood at a very high level of generality (why?) Agreed with the joint opinion that the state has a legitimate interest in protecting potential life. But he did not believe that this interest was directly protected by the USC, and believed it was therefore a less weighty interest than the woman’s constitutional liberty interest in deciding whether to bear a child. Stevens believed that the state could “express a preference for normal childbirth,” but that the state could not force the woman to receive the state’s obviously pro-life materials just at the moment she was considering her decision. So for Stevens, the requirement that a physician tell the woman about alternatives to abortion, and disclose the availability of state-printed pro-life materials, was unconstitutional – there was no evidence that the requirement truly furthered the state’s interest in making sure the woman had given informed consent, and the state’s interest in protecting potential life could not justify the result, because the “state cannot further its interests by simply wearing down the ability of the pregnant woman to exercise her constitutional right.” Stevens did not expressly say whether he agreed with the joint opinion’s “undue burden” standard, but believed that “correct application” of this standard would produce the same result as strict scrutiny, that the pre-abortion counseling and 24-hour waiting period requirements were unconstitutional.

• Blackmun. Concurring and dissenting in part, Blackmun argued for complete reaffirmation of Roe. As the result of prior court decisions, “All that remained between the promise of Roe and darkness was a single, flickering flame. But now, just when so many expected the darkness to fall, the flame has grown bright.” He argued that the standard imposed by Roe – that any regulation of abortion be subject to strict scrutiny – should be maintained, which he believed the “undue burden” standard did not do. Similarly, he believed that Roe’s trimester framework should be maintained. For Blackmun, all of the challenged regulations were infirm: the pre-abortion counseling requirement, the 24-hour waiting period, the requirement that consent by a minor’s parent be “informed” (which the trial court found would require an in-person visit by the parent to the facility), the detailed record-keeping and disclosure provisions – none of these could survive strict scrutiny.

1. Attack on dissent. Blackmun then attacked the dissenters, especially Rehnquist. He noted that under Rehnquist’s view, restrictions on abortion should be upheld so long as they are rationally related to a legitimate state interest. Under this extremely deferential standard, not even women who became pregnant through rape or incest would be constitutionally entitled to an abortion. He also attacked Rehnquist’s reliance on “tradition” as the only source of fundamental rights: “In the Chief Justice’s world, a woman considering whether to terminate a pregnancy is entitled to no more protection than adulterers, murderers, and so-called ‘sexual deviates.’ Given the Chief Justice’s exclusive reliance on tradition, people using contraceptives seem the next likely candidate for his list of outcasts.”

2. Succession. Blackmun closed his opinion in an even more personal way. He noted the precarious balance by which the Justices following the pro-choice approach of the SCt in Casey narrowly outnumbered those following the wildly differing approach of the dissent: “The distance between the two approaches is short – the distance is but a single vote.” He went on to say that “I am 83 years old. I cannot remain on this SCt forever, and when I do step down, the confirmation process for my successor may well focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”

• Dissent - Rehnquist. Argued that SCt’s precedents in the fundamental rights area should be understood at a very narrow level of generality, and thus that Roe should be overruled. The joint opinion “retains the outer shell of Roe but beats a wholesale retreat from the substance of that case.” He indicated that he and the other dissenters “believe that Roe was wrongly decided, and that it can be and should be overruled.” Dissenters would have upheld all the challenged provisions of the Pennsylvania statute.

• Not a fundamental right. The right to terminate a pregnancy was not, and should not have ever been declared to be, “fundamental.” Abortion was quite different from marriage, procreation and contraception (other rights found to be “fundamental”), because it involved the termination of life and was thus a unique situation. Nor was the right to abort rooted in the historical traditions of the American people, which Rehnquist believed was the only way in which a right could become fundamental. Rehnquist believed that a woman’s interest in having an abortion is a form of liberty protected by the Due Process Clause, but that since that interest was not a fundamental right, the states could regulate it “in ways rationally related to a legitimate state interest.”

• Stare Decisis. Rehnquist also attacked the joint opinion’s reliance on the doctrine of stare decisis. First, he did not believe that the joint opinion in fact applied the doctrine. Stare decisis means to adhere to decided cases, but the joint opinion so revised Roe that it was being overruled more than adhered to: “Roe stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent.” Nor did Rehnqhist believe that stare decisis should be applied in this case. Certainly the fact that there was substantial public opposition to Roe should not make any difference: “Just as the SCt should not respond to [anti-Roe] protests by retreating from the decision simply to ally the concerns of the protesters, it should likewise not respond by determining to adhere to the decision at all costs lest it seem to be retreating under fire. Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the SCt itself.” To Rehnquist, Roe was like Plessy v. Ferguson (legitimizing “separate but equal” treatment of blacks): both were decisions that the passage of time had shown to be clearly wrong, and the SCt should definitively overrule Roe just as it had overruled Plessy in Brown v. Board of Education.

• Application to statute. Given Rehnquist’s belief that the regulations merely needed to be “rationally related to a legitimate state interest,” it was not surprising that he found them all to be valid. For instance, the spousal notice requirement was a “rational attempt by the State to improve truthful communication between spouses and encourage a collaborative decision making, and thereby fosters marital integrity.”

• Scalia’s dissent. Thought that Roe was just Lochner again, and that it is bad law for similar reasons. He also attacked what he regarded as SCt’s exaggerated view of its own importance in the American polity.

• Right to abortion is not protected by USC. The right to terminate an unwanted pregnancy was simply not a liberty interest protected in any way by the USC. “I reach this conclusion for the same reason I reach the conclusion that bigamy is not constitutionally protected – because of two simple facts: (1) the constitution says absolutely nothing about it, and (2) the long standing traditions of American society have permitted it to be legally proscribed.” The non-historically-oriented factors relied on by the majority to support abortion’s special protected status – for instance, the fact that it is among “a person’s most basic decisions” and involves “ most intimate and personal choice” – could be applied equally to homosexual sodomy, polygamy, adult incest and suicide, “all of which can constitutionally be proscribed because it is our own unquestionable constitutional tradition that they are proscribable.”

• Stare decisis. Like Rehnquist, Scalia was especially scornful of the joint opinion’s reliance on stare decisis, and on the reasoning that the SCt should not overrule an unpopular precedent lest it be seen to be caving in to popular pressure. “The notion that we would decide a case differently from the way we otherwise would have in order to show that we can stand firm against public disapproval is frightening . . . [T]he notion that the SCt must adhere to a decision for as long as the decision faces ‘great opposition’ and the Court is ‘under fire’ acquires a character of czarist arrogance.” To Scalia, the majority was simply making value judgments, and value judgments should be voted on by citizens and their elected representatives, not dictated by an “Imperial Judiciary.” Scalia concluded by saying that “we should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

• “Levels of generality” debate between Scalia and Brennan.

• Scalia: rely on tradition at “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.”

• C/A. Many of SCt’s cases (e.g. Griswold) would come out other way under such a test.

• Scalia would respond that they have no better means of confining judicial discretion, and that “a rule of law that binds neither by text nor by any particular, identifiable tradition, is not rule of law at all.”