Supreme Court Review 2017/2018 TERM
SATURDAY, NOVEMBER 25, 2017

HOT BUTTON ISSUES

ABORTION

The Supreme Court's involvement with laws concerning abortion had its jurisprudential beginnings in the 1960s when the Court first addressed an individual's constitutional right to privacy. Although the Court did not address the issue of abortion directly until Roe v. Wade, in 1973, many people of various cultures have discussed this issue over the course of human history.

In one way the law of abortion between the founding of the United States and Roe v. Wade has come full circle. At common law (the court made law adopted from England by the American settlers), abortion was legal before quickening. Quickening was understood to begin during a pregnancy when the mother first feels the fetus move (now known to occur between 15 and 20 weeks). Beginning in the mid-1800s, however, a movement began to criminalize abortion and by 1900, abortion was illegal in every state. Abortions continued, however, and in 1930 it was estimated that licensed physicians performed about 800,000 abortions a year. Beginning in the 1960s, a movement began to relax abortion laws to permit exceptions in the case of rape and incest and to protect the life or health of the mother. By 1972, thirteen states had passed such laws. In 1973, the Supreme Court issued its landmark decision in Roe v. Wade, holding that women have a constitutional right to privacy that prevents the state from banning abortion prior to "viability". Viability is defined as the "interim point at which the fetus becomes ... potentially able to live outside the mother's womb, albeit with artificial aid." Therefore, just as the common law chose a time during pregnancy (quickening) to limit abortion, so too did the Supreme Court (with viability) centuries later.

After Roe, the Supreme Court began hearing cases concerning abortion laws with some regularity. As the cases set forth below illustrate, the law of abortion, even as laid out in Roe, is indeterminate and subject to endless interpretation. Nevertheless, in order to truly understand the law of abortion in the United States and to predict the direction in which it is headed one must have a firm grasp of the details of the following cases.

Griswold v. Connecticut (1965)
In a 7-2 decision in Griswold the Court noted that the Bill of Rights recognized certain zones of privacy inherent in several of its guarantees, which prohibit the government from intruding too far into the home and the "privacies of life." The Court in Griswold identified that among these zones of privacy was a right to marital privacy.

Griswold involved an 1879 Connecticut law that outlawed contraceptives by making it a crime to use any "drug, medicinal article or instrument for the purpose of preventing conception." By way of the state's aiding-and-abetting statute, a person who "assists, abets, counsels, causes, hires or commands another" to use contraceptives was just as guilty of breaking the law, thus implicating doctors. Connecticut chose to target the Planned Parenthood League of Connecticut, which as part of its services "gave information, instruction, and medical advice to married persons as to the means of preventing conception." The state arrested the Executive Director of the clinic, Estelle Griswold, and its Medical Director, Dr. Charles Lee Buxton (also then the chairman of Yale University's obstetrics department) and closed the clinic. They were tried, convicted, and fined $100 each. The state high court affirmed their convictions.

The Supreme Court, however, reversed. Justice William O. Douglas issued the 5-justice majority opinion, finding that the law infringed upon the right of marital privacy. Justice Douglas asked: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." Two justices, Harlan and White, concurred but refused to join the majority opinion, because they believed that the court need not look beyond the Due Process Clause of the 14th Amendment to protect against a deprivation of liberty.

Three justices who joined the majority opinion also joined together to expound the majority opinion's mention of the Ninth Amendment as a source of privacy rights. The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The three justices noted, in response to the dissent, that to argue that the government was free to infringe upon the privacy of married couples because a right to privacy is not mentioned in the Bill of Rights is to ignore the words of the Ninth Amendment altogether, which was included in the Constitution specifically to recognize that the Constitution did not enumerate the full panoply of rights retained by the people.

Dissenting Justices Black and Stewart took the Court to task for finding a right in the Constitution that is not specifically set forth therein ("I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."). Both Justice Black and Stewart made clear, however, that they believed the Connecticut law to be an "uncommonly silly law."

Griswold is a foundational case that would factor strongly in all subsequent reproductive rights cases because it established the constitutional hook (a right to privacy) that would be applied to all similar cases going forward.

In 1972, the Supreme Court in Eisenstadt v. Baird extended the right to contraceptives established in Griswold to unmarried persons under the Equal Protection Clause of the 14th Amendment, since the law at issue singled out unmarried persons and denied them the right to contraception.

Roe v. Wade
In 1973, the Supreme Court issued its 7-2 decision in the landmark case of Roe v. Wade. Justice Harry Blackmun, a former counsel to the Mayo Clinic, authored the seven-justice majority opinion. In it, the Court established a three-tiered approach to the analysis of the abortion issue: "(1) 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, (2) 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, and (3) 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 necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Roe involved an unmarried woman, Norma McCorvey (identified in court documents only as Jane Roe), who wished to terminate her pregnancy but was prohibited from doing so because of a Texas statute that made it a crime to procure an abortion except where the life of the mother was at stake. Roe's life at that time was not in danger and she could not afford to travel to a state where legal abortion could be procured. Jane Roe sued the state on behalf of herself and all other women similarly situated.

Before the Roe opinion reached the merits of the case, it first surveyed the history of abortion. It related that while abortion was illegal and punished in the Persian Empire, it was legal and routinely practiced in Hellenic Greece and throughout the Roman Empire. With the rise of Christianity, an oath formerly followed by only a small group of doctors, the Hippocratic Oath, became more mainstream. One of the commands of the Hippocratic Oath reads: "I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy." While doctors may choose to adhere to the tenets of the Oath, the decision to do so remains a personal one rather than a legal one.

In addressing the merits of the case, the Court in Roe took for granted, based on prior case law, that a right to privacy existed, whether found in the penumbra of the Bill of Rights or in the Fourteenth Amendment's Due Process Clause. The seven-justice majority, however, found that the right to privacy contained in the Fourteenth Amendment's guarantee of personal liberty was broad enough to encompass a woman's decision whether or not to terminate her pregnancy. Accordingly, the Court invalidated the Texas abortion law. It cautioned, however, that the right was not absolute and constituted a balance (as set forth above) between the state's interest in protecting the "the potentiality of human life" and the mother's interest in her own privacy and health. These caveats formed the basis of future battles in the Court concerning abortion laws.

The same day Roe v. Wade was decided the Supreme Court issued a decision in a companion case, Doe v. Bolton, which addressed Georgia's abortion law. That law left the initial abortion decision to a physician's "best clinical judgment," which the Supreme Court found acceptable. The law, however, required additional conditions, which the Court found to be unconstitutional, including: (1) that the abortion be performed in a hospital accredited to perform abortions by the state, (2) that a hospital committee agree to the abortion, (3) that two doctors agree to the abortion, and (4) that the mother be a resident of Georgia. Other than the residency requirement, which was struck down as a violation of the Privileges and Immunities Clause, the requirements were struck down as not reasonably related to "health interests."

Consent Requirements
In Planned Parenthood of Central Missouri v. Danforth (1976), the Court considered a Missouri law which required, among other things, that before submitting to an abortion during the first 12 weeks of pregnancy a woman must provide written consent to the abortion procedure certifying that "her consent is informed and freely given, and is not the result of coercion." The petitioners, physicians who worked for Planned Parenthood, argued that this requirement imposed an extra burden on the abortion right that was unjustifiable under Roe. The Supreme Court did not agree. Rather, the Court held that this requirement did not invade a woman's constitutional right to privacy.

The Missouri law also required that a pregnant woman obtain the consent of a spouse before submitting to an abortion procedure in the first 12 weeks of pregnancy. The Court concluded that this requirement did violate a pregnant woman's constitutional right to privacy. Regarding spousal consent, the Court stated that it recognized that a "decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage." However, the Court stated that "we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right."

 The Missouri law also required the pregnant woman, if under 18 years old, to obtain the consent of her parents in order to receive an abortion. The Supreme Court held that this part of the law violated the Constitution for the same reasons that the spousal consent requirement did. Three years later in Bellotti v. Baird, however, the Court clarified the rights of minors seeking abortions, holding that states could establish procedures (e.g., adequate judicial bypass procedures) to determine whether a girl is mature enough to make an abortion decision. These alternative procedures must permit a minor to show "(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; [and] (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests."

Public Financing of Abortion
In the late 1970s, the Court decided a string of cases challenging federal and state laws banning the use of public funds to finance abortions. The cases were brought by indigent women reliant on Medicaid and other public assistance programs to fund their medical care. They argued that by banning the use of these funds for abortions they were effectively denied their constitutional right to make the abortion decision. The Court held that the state is free to make policy choices in how it spends its money. And that in choosing to encourage, not force, childbirth over abortion the state does not unduly burden the right to seek an abortion. The Court later, in Rust v. Sullivan (1991), upheld a law prohibiting those providing family planning services who received federal funds from engaging in activities that "encourage, promote or advocate abortion as a method of family planning" such as counseling families where to go to obtain an abortion.

Akron v. Akron Center for Reproductive Health
In 1983, the Supreme Court considered an Ohio law that required girls under the age of 15 to obtain their parents' written consent prior to obtaining an abortion. The Court in Akron ruled that the requirement was unconstitutional because it did not provide, in accordance with Bellotti, "an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that [without parental approval] an abortion would [still] be in her best interests."

The Ohio law also required that an abortion within the first trimester occur within a hospital and that the remains of a fetus be disposed of in a humane way. The Court ruled that these requirements also violated the Constitution.

On the same day the Court decided Akron it also decided Planned Parenthood v. Ashcroft, wherein it upheld a provision of a Missouri law that required minors to seek either parental or judicial consent. In upholding the law the Court clarified that a juvenile court could not deny a minor's application for an abortion except upon a "good cause" showing that "after having received the required evidence – [] the minor was not mature enough to make her own decision."

Discouraged Consent
In 1986, in Thornburgh v. American College of Obstetricians & Gynecologists, the Court struck down a Pennsylvania law that required a woman's consent to an abortion to be "informed," requiring that certain printed materials designed to discourage abortion be delivered to the woman prior to consent being sought. The Court framed the law as "nothing less than an outright attempt to wedge the Commonwealth's message discouraging abortion into the privacy of the informed consent dialogue between the woman and her physician." The Court held that "[t]he States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies."

Picketing Abortion Doctors at Their Homes
In 1988, in Frisby v. Schultz, the Supreme Court considered the abortion right in the context of free speech rights. On six different occasions, picketers protested abortion by standing on the public streets outside the residence of a doctor who apparently performed abortions. In between some of these demonstrations, the town enacted an ordinance prohibiting all picketing in residential neighborhoods. The alleged purpose of the law was to protect and preserve the home.

After the law was enacted, two of the picketers filed suit in federal district court, claiming the law was a violation of the right to free speech guaranteed by the First Amendment. The Supreme Court did not agree. The Court reasoned that the city government had a legitimate purpose in protecting the home and it did so without favoring any idea or eliminating the ability to communicate the idea. Therefore, the law did not violate the Constitution.

Webster v. Reproductive Health Services
In 1989, the Supreme Court considered the constitutionality of a Missouri abortion law. The preamble of the law stated that "the life of each human being begins at conception" and that "unborn children have protectable interests in life, health, and wellbeing." The Supreme Court held that it did not need to consider the constitutionality of a law's preamble because the preamble does not, by its terms, regulate abortions or any other aspect of a medical practice. Rather, the Court said that a state can favor childbirth over abortion, and the preamble can be read simply to express that sort of value judgment.

In addition, the statute prohibited the use of public employees and facilities to perform or assist abortions that are not necessary to save the mother's life and made it unlawful to use public funds, employees, or facilities for the purposes of encouraging or counseling a woman to have an abortion that is not necessary to save her life. To this, the Supreme Court held that the State could allocate resources in favor of childbirth over abortion if it so chooses. The Due Process Clause generally does not confer an affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property.

Planned Parenthood v. Casey
In 1992, the Supreme Court issued its most significant abortion decision since Roe. The Court in Casey considered a Pennsylvania abortion law that (1) required abortion patients in their first trimester of pregnancy to receive an "informed consent" booklet and wait 24 hours before receiving an abortion; (2) required a married woman seeking an abortion to indicate that she had notified her husband of her intention to have an abortion; and (3) required that minor girls receive written consent from at least one parent.

While the Court reaffirmed Roe in its 5-4 decision, it adopted a new standard to apply to laws that regulated the abortion right: "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." This standard was significantly lower than the one applied in prior abortion cases, which treated the right to privacy as a fundamental right warranting the application of the highest applicable standard in law, strict scrutiny. The laxer "undue burden" standard, according to abortion rights advocates, would permit greater intrusions upon the abortion right.

The Court in Casey concluded that the requirement that a patient receive an informed consent booklet and wait 24 hours was not an undue burden. The Court reasoned that the transfer of truthful, non-misleading information about the nature of the abortion procedure is not an undue burden on the abortion right. The requirement that a wife notify her husband, however, was an undue burden because it would likely prevent a significant number of women from obtaining an abortion. In addition, the Court stated that while "it would be reasonable to conclude as a general matter that the father's interest in the welfare of the child and the mother's interest are equal," before birth "[i]t is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's." Finally, the Court upheld the requirement that minor girls obtain written consent from one parent because the law contained an adequate judicial bypass procedure (whereby a parental veto could be overridden by a judge).

Partial-Birth Abortion Bans
In 2000, in Stenberg v. Carhart, the Supreme Court applied the undue burden test to determine the constitutionality of a Nebraska statute that prohibited partial birth abortion unless necessary to save the life of the mother. The Nebraska statute defined partial birth abortion as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." Violation of the law was a felony and would require the automatic revocation of a convicted doctor's license to practice medicine.

Dr. Carhart, a physician who specialized in late-term abortions, brought a suit for injunctive relief against the attorney general of Nebraska. Carhart argued that the statute would cause those who procure abortions to fear prosecution, conviction, and criminal punishment, and that this constituted an undue burden. In a 5-4 decision, a majority of the justices held that the statute was unconstitutional. First, the Court stated that it stood by its prior decisions that require abortion bans, even where the fetus is viable, to contain exceptions for the health of the mother. The Nebraska law only included an exception for the "life" of the mother. Second, the Court held that the Nebraska law's definition of partial birth abortion encompassed many different procedures, including the procedure most commonly used for second-trimester abortion. The Court believed that these defects in the law placed an undue burden on the abortion right and struck down the law as unconstitutional.

In 2003, the U.S. Congress and President George W. Bush enacted the Partial-Birth Abortion Ban Act, which banned one type of partial birth abortions unless necessary to preserve the life of the mother. The law did not contain a "health" exception. Leroy Carhart joined by other doctors and Planned Parenthood challenged the constitutionality of the Act under the Court's prior precedents. The doctors and Planned Parenthood argued that the Act violated the Constitution since it imposed an undue burden on the abortion right by barring use of a procedure that is occasionally necessary for the preservation of the health of the mother. Additionally, the doctors and Planned Parenthood argued that the Act was unconstitutionally vague since it could be interpreted to apply to other abortion procedures.

In 2007, in Gonzales v. Carhart, the Court in a 5-4 opinion held that the Act did not impose an undue burden on the abortion decision because if the mother's health was in danger alternative procedures existed to allow for her protection. The factual record was unclear as to whether the abortion procedure banned by the statute was ever needed to preserve the health of the mother. In addition, the Court held that the Act was not unconstitutionally vague because doctors of ordinary intelligence could read the Act and understand what procedure was being prohibited.

The Supreme Court has not heard an abortion case since Gonzales in 2007. On November 13, 2015, however, the Court granted review to Whole Woman’s Health v. Cole, which considers a Texas law that would impose new requirements on abortion clinics, which would likely cause over half of the abortion clinics in Texas to close.