ABORTION AND THE CONSTITUTION (Update 2a)

Politically and jurisprudentially, planned parenthood v. casey (1992) is a complex case whose strengths are inextricably intertwined with its weaknesses. Those strengths include a political pragmatism that helped to mute abortion conflict, combined with a precedent constrained and sensitively nuanced due process methodology rooted in common law tradition and the legacy of the second Justice john marshall harlan. Weaknesses include the failure to articulate a clear, principled standard of review and a logically satisfying theory of abortion rights.

The decades prior to Casey had been marked by bitter abortion controversy. The promise of autonomy and gender equality implicit in abortion rights confronted a tradition-based insistence that the value of human life is not a subject appropriately open, relativistically, to unfettered personal choice. In 1973, roe v. wade had announced a fundamental right of privacy to choose abortion throughout the first two trimesters (protected by a strict scrutiny standard of review for restrictions during the first trimester, and allowing only restrictions rationally related to maternal health during the second). But Roe had exacerbated conflict, not molded consensus, and by 1992 many expected Roe to be overruled. Only three Justices of the Roe Court remained on the bench, and two were Roe dissenters. Five sitting Justices were appointed by either President ronald reagan or President george h. w. bush, both of whom ran on high-profile pro-life platforms. Meanwhile, in webster v. reproductive health services (1989), the Supreme Court had upheld not only a highly restrictive public facilities ban but also a viability test requirement effective at twenty weeks, thereby undercutting the trimester framework of Roe. Justices harry a. blackmun and antonin scalia (respectively, the author of Roe and the harshest critic of Roe) argued that Webster effectively overruled Roe, although a majority refused to take that step explicitly. Then the Court, in subsequent cases, upheld parental notification requirements and allowed a forty-eight–hour waiting period while still refusing to overrule Roe.

Justice sandra day o'connor emerged as the pivotal figure in the Court's abortion law. O'Connor had consistently criticized the trimester framework of Roe and had argued that states could legitimately regulate abortion any time after conception so long as the resulting restrictions did not impose an "undue burden" on a woman's choice to abort before viability. O'Connor refused, however, to argue that Roe should be overruled, thereby inviting Scalia's scathing contempt.

In Casey, O'Connor's undue burden test became the definitive "middle ground" between those voting to uphold Roe in its purity (Blackmun and john paul stevens) and those voting to overrule it (Scalia, William H. Rehnquist, byron r. white, and Clarence Thomas). Joined only by david h. souter and anthony m. kennedy and denounced by both sides in the bitter abortion controversies, O'Connor's approach became controlling law and probably resonated with the moral ambivalence most Americans felt about abortion. At issue were five provisions of a Pennsylvania statute: informed consent, a twenty-four–hour waiting period with counseling, parental consent, spousal notification, and mandatory reports and records. Upholding all but the spousal notification provision, the joint opinion reaffirmed Roe by recognizing a constitutionally protected liberty interest in the choice to abort prior to viability, but also stated that this interest was balanced from the time of conception by the state's legitimate interest in the potential life of the unborn. As mediator between those two interests, the undue burden test meant the state could regulate abortions at any time after conception if the regulation did not have the "purpose or effect" of placing a "substantial obstacle in the path of a woman seeking an abortion prior to viability."

O'Connor's approach to Roe is characteristic of her methodology, paralleling, for example, her approach to establishment clause jurisprudence in the contentious public display cases. It entails situating herself between two extreme approaches to controversial precedent—rigid application and complete overruling. She instead identifies a core purpose or meaning within the existing doctrine which can be affirmed without categorical application of the prior rule. For Roe, that meant protecting a woman's ultimate choice, but not an unrestricted choice and not within the trimester framework.

This almost Llewellynesque common law approach to precedent—constrained but not mechanically bound—resonates with the substantive due process jurisprudence of the second Justice Harlan, and Part II of the Casey joint opinion draws extensively on Harlan's dissenting opinion in Poe v. Ullman (1961), probably the Court's most elegantly articulated defense of a tradition-guided conception of personal liberty. Harlan recognized a responsibility to give content to open-ended values like "liberty" yet at the same time stayed rooted in precedent and historical tradition—a tradition conceived not statically but as a "living process." The joint opinion in Casey effectively relocates reproductive rights within that substantive due process tradition, from which they had become disconnected given the absoluteness of the individual "privacy right" rationale of earlier decisions. Notably, while the substantive due process approach of Casey disappointed many by its failure to provide absolute protection, its nuanced contextualism opened space for a surprisingly sensitive judicial account of the actual effect of unwanted pregnancies, recognizing that the "liberty of the woman is at stake in a sense unique to the human condition and unique to the law."

While the joint opinion justified locating abortion within due process guarantees, the three Justices did not say Roe was correctly decided. The margin that keeps Roe intact is precedent, which provides not an "inexorable command" but important "prudential and pragmatic" constraints to guide courts. One constraint is reliance, and here the joint opinion almost lays out an equality argument, stating that after Roe women have shaped their thinking and choices with abortion as an option. "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." The Court recognizes it cannot recapture 1973, as if Roe had never been part of the contentious reality of recent history. Instead, Roe had helped to form that reality, which included greater gender equality. Through the back door, so to speak, while discussing precedent, the joint opinion suggests gender quality as a foundation for abortion rights.

Refusing to find Roe in the same category as lochner v. new york (1905) or plessy v. ferguson (1896), the three Justices nevertheless proceed to reinterpret it, in the manner so typical of O'Connor, by separating out its core meaning from its more rigid (and, by implication, artificial) applications. Roe is now taken to mean only that the "ultimate" decision to abort is the woman's, so that states may regulate even when the "incidental effect is added difficulty or expense." A strength of this reinterpretation is its recognition that abortion is a serious moral question with a legitimately public dimension, a point Roe never conceded. Nevertheless, a woman's capacity to cope well with her own life is also at stake, and the actual context of a woman's life may in fact make a particular restriction "unduly burdensome" in a moral sense. Casey is an acknowledgement of that ethical complexity, as the contextual description of women facing domestic violence makes abundantly clear. Even for restrictions the Court upholds, further data are invited for reevaluation.

Nevertheless, facts cannot supply standards. The line between permissible and impermissible restriction presumably lies somewhere between "added difficulty or expense" and "undue burden" or "substantial obstacle." Which burdens are "undue"? Increased health risks? Economic hardships? How great must they be? Some courts, applying Casey, simply have resorted to surface analogies to the restrictions Casey upheld, justifying their treatment of similar restrictions in like manner. This mechanical approach to decisionmaking represents a failure to do the particularized factual analysis Casey requires; yet, the burden now on challengers to produce enough facts to satisfy this still-undefined standard is a heavy one.

Interpretation is further complicated by an uncertain standard of review for facial attacks, the norm in abortion cases. The joint opinion found the spousal notification provision unconstitutional because, to a "large fraction" of the cases to which it would be relevant, the restriction would impose a substantial obstacle. This was an unexplained departure from the more restrictive test for facial challenges that requires there be "no set of circumstances" under which the law could be applied constitutionally. Some courts, without clear Supreme Court guidance, have applied this restrictive test, making successful facial challenge almost impossible. Yet the more appropriate "large fraction" standard requires, like the undue burden test itself, an extensive factual record and a more nuanced consideration of the law's effect.

Scalia's dissent pointed to this lack of clarity in the novel undue burden test. He also pointed, sarcastically, to the vacuous phrases used to justify finding a liberty interest, such as the linking of abortion choice to one's "concept of existence, of meaning, of the universe, and of the mystery of human life." Empty phrases are cold comfort to those who think abortion is equivalent to murder—equally a statement about one's concept of existence and the mystery of human life—although arguably our traditional respect for freedom of conscience is not constitutionally irrelevant.

The joint opinion never meets Scalia's challenge. If the Court cannot resolve the value choices at the heart of the abortion controversy, why should it seize control from the democratic process? Conversely, too, if abortion is a legitimate choice, why should it be obstructed in ways that burden most heavily the young and the poor? At the core of Casey lies a still troubling lack of resolution. Nevertheless, faced with a moral, political, and constitutional question of extraordinary difficulty, the joint opinion at least represents a workable compromise and an invitation for further dialogue.

Since Casey, abortion controversy at the Supreme Court level has focussed on clinic violence and access problems caused by protestors in the anti-abortion movement. For example, the Court has allowed application of federal racketeering law to an alleged conspiracy of anti-abortion activists and upheld a fifteen-foot fixed buffer zone around accesses to clinics while striking down a fifteen-foot floating buffer zone around persons and vehicles as too burdensome on freedom of speech.

Meanwhile, many pro-life activists have focused energy on opposing so-called partial-birth abortions. In 1997 the U.S. senate passed a ban on partial-birth abortions only three votes short of a veto-proof majority. While President william j. clinton vetoed the ban, he supported a defeated compromise bill banning all postviability abortions except in cases where a woman faces risk of death or "grievous injury" to health. Such laws have wide popular support. By January 1999, twenty-eight states had banned partial-birth abortions, although eighteen bans have been enjoined, chiefly on vagueness grounds because language used to define the procedure (e.g., "partial vaginal delivery" of a "living" human infant) could be construed to apply to some constitutionally protected procedures, and even to medical help with spontaneous abortions. Notably, however, cases describing medical details of various abortion procedures for purposes of vagueness analysis make for grisly reading, a stark reminder of the key insight of Casey—abortion is, in fact, a complex ethical issue, which does not lend itself to clear and definitive legal resolution.

Elizabeth Mensch
(2000)

Bibliography

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