July 5, 2005
Private: Guest Bloggers: What O'Connor's Retirement Means for Reproductive Liberty
by Dawn Johnsen, Professor of Law, Indiana University School of Law-Bloomington and Pamela Harris, Partner, O'Melveny & Myers
Will a future Supreme Court overrule Roe v. Wade? Are women's fundamental reproductive liberties truly at stake in the coming Supreme Court confirmation battle? Will the Court stop protecting women from anti-choice politicians, and leave women's decisions about whether or not to have an abortion subject to ever-greater governmental restriction and control?
These questions undoubtedly will be (and should be) front and center as the Senate and the Nation debate who should replace Justice O'Connor on the Supreme Court. Supporters of President Bush, seeking to deflect opposition to his nominee, are likely to argue that even if Justice O'Connor is replaced with a Justice in the mold of Scalia and Thomas - as President Bush has promised - there would be four votes, not the necessary five, to overrule Roe entirely and allow the government once again to criminalize virtually all abortions. One obvious response is that every vote counts on a Court this closely divided, and if Justice O'Connor's replacement moves the Court to the point where it is only one vote away from that most extreme of outcomes, President Bush almost certainly will have the opportunity to finish the job with a second appointment, and probably more.
But Justice O'Connor's retirement, coming at a time when the White House and Senate are vehemently anti-choice and anti-Roe, also poses a very immediate and grave danger to the right of women to decide whether and when to have children, and in turn their ability to control their own futures and those of their families. The precise nature of that danger is difficult to capture in a five- or even ten-second sound bite, but the danger is real. Simply put, the Justice who replaces O'Connor will determine for many women whether or not the promise of Roe remains meaningful. That is because there is more than one way to "overrule" Roe. The Court could retain some semblance of protection for women, including protection from blanket criminal bans on abortion, but also allow the government to impose numerous restrictions that in practice, and in combination with private interference, could make legal abortion services far less available, more expensive and more dangerous. For many women seeking to terminate pregnancies, the practical differences between approaches would be consequential.
We clearly are just one vote - Justice O'Connor's vote - away from a Court that would allow increased restrictions on abortion, including even abortion restrictions that blatantly disregard threats to women's health and future life. In its last abortion decision, Stenberg v. Carhart, the Court in 2000 struck down such a restriction - but only by a bare 5-4 vote, with Justice O'Connor in the majority. O'Connor clearly is the Justice in the middle on abortion, the Justice who fashioned a compromise that averted an express overruling of Roe in the Court's 5-4 decision in Planned Parenthood v. Casey but also opened the door to increased restrictions. The appointment of a Justice to her right would endanger the health and well-being of women and their families, even if it would not result in an express overruling of Roe.
A review of some recent history helps illustrate the role Justice O'Connor has played on the issue of reproductive liberty, and what is at stake as a new Justice takes her place. Roe v. Wade of course did not quell public debate or political activity regarding abortion. Opposition raged and the political parties polarized. Opponents of Roe enacted hundreds of abortion restrictions, elected anti-choice politicians who would support and expand such restrictions, picketed and blockaded abortion clinics, some even resorted to violence and murder. Anti-abortion activists-and more generally social conservatives-increasingly dominated the Republican Party, which committed to working toward overruling Roe through the appointment of judges who share that commitment. Pro-choice Americans, on the other hand, understandably have relied upon judicial protection, and reproductive choice typically has been a less salient political issue to them than to those who would like to see abortion made illegal.
Post-Roe anti-choice legislative activity focused on imposing various types of restriction on abortion, overwhelmingly at the state level. Some state laws sought to empower private individuals to do what Roe said the government could not do directly, such as by requiring women to obtain the consent of husbands or parents before having an abortion. Other laws targeted abortion providers and sought to decrease the availability of services, for example by limiting the kinds of facilities in which abortions could be performed and the advertising of abortion services. Still others targeted women through their physicians and sought to discourage women from having abortions, including by requiring physicians to give their patients information and fetal development pictures designed to discourage abortion and then requiring women to reconsider having an abortion during a mandatory waiting period. And still other laws sought to prohibit or mandate the use of certain abortion methods or standards, rather than allow the physician and woman to choose the method according to the woman's health needs and other standard medical and other circumstances.
During the almost two decades prior to Casey, the Court invalidated most governmental restrictions under the stringent "strict scrutiny" standard of review that protects fundamental rights. The most significant exceptions to the Court's otherwise protective stance included decisions in which the Court upheld mandatory parental involvement requirements (though requiring some protections for young women) and the exclusion of abortion from publicly funded medical services provided to poor women.
The 7-2 Roe majority, though, gradually was diminished, as Presidents Ronald Reagan and George W. Bush appointed five new Justices over their twelve years in office. With the 1991 appointment of Clarence Thomas, confirmed by a closely divided Senate, it seemed the Rehnquist Court had been successfully transformed into one that would overrule Roe when presented with the appropriate case. That opportunity came in 1992, with Planned Parenthood v. Casey. But instead of overruling Roe, the Casey Court, by a vote of 5 to 4, upheld what it characterized as the right of a woman to be free from "undue" governmental burdens in making the ultimate decision whether or not to have a pre-viability abortion. The Casey Court also reaffirmed Roe's holding that the government may prohibit abortion after fetal viability, but that even then it must provide an exception when the women's health or life is at risk.
Justice O'Connor was critical to saving what she described as Roe's "essential holding," in a controlling opinion that she authored with Justices Anthony Kennedy and David Souter. Without O'Connor's fifth vote, and her partial retreat from earlier opposition to Roe, the Court would have overruled Roe in Casey. The same can be said of Justice Kennedy, who also had disagreed with Roe previously and whose vote also was critical to saving what remains of Roe. All three authors of the controlling opinion in Casey were appointed by Republican, anti-choice Presidents - a fact that continues to resonate today, as conservatives insist that President Bush avoid the mistakes of his predecessors and select a nominee who can be relied upon to vote to overrule Roe expressly and unequivocally.
Many people greeted the Casey Court's "reaffirmation" of Roe with celebration and great relief, others with bitter disappointment and despair. Virtually all, however, were surprised that the Court had not overruled Roe outright, or at a minimum signaled that it would do so in a more appropriate case. Because it defied prevailing expectations, what Casey preserved of Roe completely overshadowed the extent to which Casey actually diminished judicial protection from harmful abortion restrictions. No longer did the Court describe the decision whether to terminate a pregnancy as a fundamental right. The government was now deemed to have a legitimate interest in protecting fetal life from the earliest stages of pregnancy. And the far more protective strict scrutiny standard was replaced by the new undue burden test - a test originally devised by Justice O'Connor in earlier dissenting opinions in which she was highly critical of Roe and would have upheld restrictions on abortion that a majority then found unconstitutional. The Casey Court didn't overrule Roe, but it did overrule those protective abortion decisions from the 1980s and it upheld restrictions indistinguishable from those the Court had invalidated, in particular a requirement that women delay abortions 24 hours after physicians offered them state-prepared materials designed to dissuade them from having an abortion (and often in practice requiring much longer delays). Only Justices Harry Blackmun, the author of Roe, and John Paul Stevens would have reaffirmed those decisions. Thus, in one sense, Roe had flipped from a 7-2 decision to a 2-7 decision.
Since Casey, appointments by President William J. Clinton have made the Court slightly more supportive of Roe. Justice Stephen Breyer's appointment to the seat held by Blackmun did not improve Roe's standing, but the replacement of Justice Byron White, the second Roe dissenter, with former women's rights advocate Ruth Bader Ginsburg reduced from four to three the current Justices who have called for expressly overruling Roe. But the real question now is not exactly how many appointments President Bush will have to make before Roe is overruled. It is how each of those appointments - starting with the one the President will make now - will apply Casey's undue burden standard, and whether Justice O'Connor's replacement will apply Casey in a way that negates, for many or most women, the protections of Roe.
That is a realistic scenario because the undue burden test is in practice very malleable. What constitutes an undue burden? The Casey Court, 5 to 4, found that a Pennsylvania law requiring a woman to notify her husband prior to an abortion did constitute an undue burden, but that a mandatory waiting period did not. In the hands of a Court - or a new swing-Justice - so inclined, the undue burden standard could allow for substantial restrictions and drastic reductions in the availability of abortion services. It is important to note that Roe's effect was not to increase substantially the overall abortion rate, but rather to allow women far greater access to legal and safe abortion services within their own states (and, of course, to eliminate virtually all dangerous, illegal abortions). But under the undue burden test, depending on how it is defined and applied by Justice O'Connor's replacement, we could see a very different outcome: various state restrictions could combine with anti-abortion violence, clinic blockades, and dramatically reduced numbers of abortion providers to make in-state abortions unavailable for many women. Roe already holds little practical meaning for a woman who lacks the money to pay for an abortion and also for the costs of traveling several hundred miles to the nearest abortion provider-a trip that state-mandated waiting periods sometimes force women to make twice. Additional burdens imposed by states and deemed something less than "undue" by a new Justice would leave even more women without any access to abortion services, and thus without any meaningful ability to decide whether or not to have an abortion.
The Supreme Court's 2000 decision in Stenberg v. Carhart illustrates the extent to which women's reproductive freedom and health turn on who applies the undue burden test, and how. In Stenberg, Justice O'Connor joined the majority to invalidate a Nebraska statute that prohibited the use of abortion procedures that fell within what the law labeled "partial birth" abortions. The Court - with Justice O'Connor as the critical fifth vote - struck down the law on two separate grounds: because it lacked an express exception where denial of the procedure posed a risk to a woman's health, and because the ban was not limited to post-viability abortions or even those close to viability, but also reached the most common form of second trimester abortions. Justice Kennedy, on the other hand, applied the undue burden test differently, splitting with his coauthors of the Casey joint opinion, O'Connor and Souter, and becoming one of four Justices voting to uphold the statute. It will not take a reversal of Roe to alter the outcome of future cases like Stenberg. All it will take is a new Justice who follows the lead of Justice Kennedy, rather than Justice O'Connor, in applying the nuances of the undue burden standard.
Indeed, the Court may soon have occasion to revisit the issue presented in Stenberg, and to undermine reproductive choice and women's health when it does so. In 2003, Congress enacted the first federal ban on a category of abortions. That law, entitled the "Partial Birth Abortion Ban Act of 2003," is notable in two respects. First, it is a federal, rather than a state, abortion restriction, criminalizing certain abortions throughout the nation and without regard to state law. With the exception of restrictions on federal funds, litigated more than two decades ago, all of the abortion restrictions considered by the Court have been enacted by state legislatures - making it possible for some opponents of Roe to frame the abortion issue in terms of federalism and state sovereignty. Congress' Abortion Ban, however, underscores that governmental regulation of abortion is not solely an issue of federalism, and that Congress may enact nationwide restrictions on abortion that also will be subject to judicial scrutiny. Second, the federal Abortion Ban parallels the statute invalidated in Stenberg in virtually every respect, and like the Nebraska statute conspicuously omits an exception that would protect the health of a woman affected by the law. For that reason, every lower federal court to examine the federal Abortion Ban has invalidated the law, citing Stenberg as controlling authority. If the issue returns to the Supreme Court, as it is likely to do, then the current Justices may well be split 4 to 4 - leaving it to Justice O'Connor's replacement to decide whether to apply Stenberg fully or to minimize or even overrule that decision and open the door to other restrictions that threaten the health of some women.
Women's health is also at issue in Ayotte v. Planned Parenthood, an abortion case already on the Supreme Court's docket for next year. The dispute in Ayotte is over a New Hampshire statute prohibiting a minor from obtaining an abortion until at least 48 hours after her parents have been notified. The statute includes no exception for cases in which the 48-hour delay would threaten the health of a minor, and for that reason, the First Circuit ruled it unconstitutional under Stenberg. Ayotte will thus present the Court's newest Justice with an opportunity to weigh in - and likely to weigh in decisively - on the question whether an abortion restriction with the potential to threaten women's health must always include a health exception, as current Supreme Court doctrine requires. Ayotte also may allow the newly constituted Court to confront more directly than it has in the past a broader question: the circumstances under which a restriction that operates as an "undue burden" for some but not all women is facially invalid. The resolution of both those issues will turn on how the Court, and particularly its newest Justice, applies the "undue burden" standard, and could have far-reaching effects on the ability of women to decide to safely terminate a pregnancy.
In short, the Court need not overrule Roe formally, or even abandon Casey's undue burden test, in order to place substantial new restrictions on the ability of women to choose whether or not to have an abortion. Instead, the Court could refine and apply the undue burden test to allow all but the most onerous abortion restrictions and bans. Combinations of restrictions can be just as effective as blanket bans in rendering abortion services unavailable. This is particularly true for low-income women facing the increased costs that accompany dramatic reductions in the number of abortion providers (already very few in some states). This shortage of providers results from the cumulative effects of government restrictions, reduced medical training opportunities, and violence and harassment directed at abortion providers. To the extent that a future Court upholds state authority to enact increasingly onerous restrictions, a patchwork of disparate state laws and uneven availability of services will emerge, in which some number of women will have to travel long distances out of state (sometimes more than once) to obtain a legal abortion. Or Congress might impose additional nationwide abortion restrictions that deprive women even of the possibility of out-of-state travel for abortion services. Whatever the form of Roe's "overruling," women would experience the loss of liberty unequally. Hardest hit would be women who lack the resources or ability to travel to the nearest abortion provider: women who are poor, young, or the victims of abuse, women who live in areas with few providers, women who live in states dominated by abortion opponents in elected office and in front of abortion clinics. The resulting unequal availability of legal abortion services would be reminiscent of the pre-Roe patchwork of laws, though the Court could claim that Roe remained good law.
The question for the coming confirmation battle is not only whether the new Justice will vote to overrule Roe, but whether he or she will define and apply the undue burden standard in a way that deprives many women of Roe's underlying protections. Does the Constitution protect the reproductive health and liberty only of women fortunate to have the means of circumventing government-imposed obstacles, or, consistent with our great constitutional tradition of individual liberty, will the Court protect the right of every woman to decide whether or not to terminate a pregnancy, according to her own circumstances and beliefs, in consultation with the family, friends and clergy that she chooses to consult? Is it the role of government to seek to force women to continue pregnancies against their will (an approach doomed to failure) or to serve as a source of support and education to women and men who desire to avoid pregnancy (the most effective method of reducing abortions)?Portions of this blog are based on Dawn Johnsen, Abortion: A Mixed and Uncertain Legacy, forthcoming chapter in The Rehnquist Legacy (Cambridge University Press 2006)