Constitutional Law Primer 3 R D E D I TI O N, 2 0 1 3 2 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 Contents ACKNOWLEDGEMENTS Contributors 4 4 Foundation Supporters 4 TABLE OF AUTHORITIES 5 Cases 5 Statutes 6 Other Authorities 6 PREFACE 7 Purposes & Uses 7 Structure 7 I. INTRODUCTION 8 II. EVOLUTION OF THE RIGHTS TO ABORTION AND CONTRACEPTION 8 A. The rise of forerunners to Roe 8 B. Pre-Roe Abortion Challenges 9 C. The Landmark: Roe v. Wade 11 D. The Erosion: Post-Roe Limitations on the Right 15 E. The Shift: Casey – “Undue Burden” and “Substantial Obstacle” 21 F. The So-Called “Partial Birth” Bans 24 G. Cases following Gonzales v. Carhart (Carhart II) 29 H. The Contraception Mandate: The Affordable Care Act & Contraceptive Coverage 30 I. Discussion Questions 34 III. MAJOR DEBATES ABOUT CONSTITUTIONAL PROTECTIONS FOR REPRODUCTIVE RIGHTS, PARTICULARLY THE RIGHT TO ABORTION 35 A. Opposition to Constitutional Protection for the Right to Abortion 35 B. Fetus’s Right to Life 40 C. Alternative and More Protective Grounds for the Right to Abortion – Gender Equality, Personal Dignity, and Hybrid Theories 41 D. Discussion Questions 42 IV. CONCLUSION 43 3 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 APPENDIX A: DOCTRINAL SOURCES OF THE RIGHTS TO PRIVACY, LIBERTY, AND EQUALITY 44 The Law of England 44 The United States Constitution 44 APPENDIX B: SUPREME COURT CASES PROTECTING AND RESTRICTING PRIVACY AND LIBERTY 46 Pre-Roe Era 47 Roe Era 50 Roe to Casey Era 51 21st Century Era 52 4 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 ACKNOWLEDGEMENTS If/When/How is grateful to many individuals and institutions for their contributions to the Constitutional Law Primer. CONTRIBUTORS Third Edition: • Mariko Miki – executive editor • Elisabeth Smith – author and editor Second Edition: • Jill E. Adams – executive editor and co-author • Priscilla J. Smith– author • Amanda L. Allen – editor, co-author, and review coordinator • Kimberly K. Irish – editor • Heidi Alexander – publication reviewer • Lindsay Baruffa – publication reviewer • Shayna Lewis – publication reviewer • Sara Perle – publication reviewer • Lisa Pratt – publication reviewer • Carse Ramos – publication reviewer • Alexis Wilber – publication reviewer First Edition: • Jill E. Adams– executive editor and co-author • Priscilla J. Smith – author • Alison Perez – researcher FOUNDATION SUPPORTERS Every aspect of this publication – from conceptualization to execution and from evaluation to distribution – was made possible by the generous support of If/When/How’s funders. We are deeply grateful to the following foundations for their generous support: • Educational Foundation of America • Mary Wohlford Foundation • Prentice Foundation • Richard and Rhoda Goldman Fund • Robert Sterling Clark Foundation • The Moriah Fund, Inc. • The Wallace Alexander Gerbode Foundation Copyright ©2016 If/When/How. All rights reserved. 5 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 TABLE OF AUTHORITIES CASES A Woman’s Choice—East Side Women’s Clinic v. Newman, 132 F. Supp. 2d 1150, 1159-60 (S.D. Ind. 2001)............ 20 A Woman’s Choice—East Side Women’s Clinic v. Newman,305 F.3d 684 (7th Cir. 2002) .......................................... 20 Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972) .......................................................................................... 4, 6, 10 Autocam Corp. v. Sebelius, No. 12-2673, 2013 U.S. App. LEXIS 19152 (6th Cir. Sept. 17, 2013) .............................. 30 Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970) ........................................................................................... 5, 6 Beal v. Doe, 432 U.S. 438 (1977) ....................................................................................................................... 12, 13 Bellotti v. Baird, 443 U.S. 622 (1979)....................................................................................................................... 12 Brown v. Board of Education, 349 U.S. 294, 300 (1955) ................................................................................16, 33, 36 Carey v. Population Services Int’l, 431 U.S. 678 (1977) ...................................................................................... 12, 13 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) ............................................ 12, 14, 16, 17 City of Boerne v. Flores, 521 U.S. 507 (1997) ........................................................................................................... 29 Cline v. Oklahoma Coalition for Reproductive Justice, 2012 OK 102 (Okla. 2012) ..................................................... 25 Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013) ............................................................. 29 Corkey v. Edwards, 322 F. Supp. 1248, 1251 (D.C.N.C. 1971) .................................................................................... 5 Crossen v. Atty. Gen. of Ky., 344 F. Supp. 587, 590 (D. Ky. 1972) ............................................................................... 6 Crossen v. Atty. Gen. of Ky., 344 F. Supp. 587, 591 (D. Ky. 1972) ............................................................................... 5 Doe v. Bolton, 410 U.S. 179 (1973) .......................................................................................................................... 26 Doe v. Scott, 321 F.Supp. 1385, 1389 (N.D. Ill. 1971) ................................................................................................ 5 Eisenstadt v. Baird, 405 U.S. 438 (1972) ......................................................................................................... 4, 8, 34 Gonzales v. Carhart, 550 U.S. 124 (2007) ........................................................................................................ passim Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) ........................................................................... 20 Griswold v. Connecticut, 381 U.S. 475 (1965) ............................................................................................................ 8 Griswold v. Connecticut, 381 U.S. 479 (1965) .................................................................................................. 4, 8, 34 H.L. v. Matheson, 450 U.S. 398, 407 n. 14 (1981)..................................................................................................... 15 Hall v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y. 1969) ............................................................................................. 4, 6 Harris v. McRae, 448 U.S. 297 (1980) ...........................................................................................................12, 13, 14 Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) ..................................................................................... 30 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ...................................................................... 30 Isaacson v. Horne 884 F. Supp.2d 961 (D. Ariz. 2012) .............................................................................................. 25 Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) .................................................................................................... 25 Korte v. Sebelius, 2012 U.S. App. LEXIS 26734 (7th Cir. Dec. 28, 2012) ................................................................... 30 Lawrence v. Texas, 539 U.S. 558 (2003) .................................................................................................................. 32 Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012) ..................................................................................... 29 Loving v. Virginia, 388 U.S. 1 (1967) ......................................................................................................................... 34 Maher v. Roe, 432 U.S. 464 (1977) .......................................................................................................................... 12 Marbury v. Madison, 5 U.S. 137, 177-78 (1803) ....................................................................................................... 31 Meyer v. Nebraska, 262 U.S. 390 (1923) .......................................................................................................... 4, 8, 34 NAACP v. Alabama, 357 U.S. 449, 462 (1958) .......................................................................................................... 34 National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012) ............................................... 26 Northland Family Planning v. Cox, 487 F.3d 323 (6th Cir. 2007) ............................................................................... 24 O'Brien v. United States HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) ....................................................................... 29 Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) ...................................................................................... 4, 8, 34 Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (1983) ....................................................... 14, 15 Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) .................... 26 Planned Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490 (6th Cir. 2012) .............................................. 25 Planned Parenthood v. Casey, 505 U.S. 833 (1992).......................................................................................... passim Planned Parenthood v. Danforth, 428 U.S. 52 (1976) ......................................................................................... 11, 16 Poe v. Menghini, 339 F. Supp. 986, 993 (D. Kan. 1972) .......................................................................................... 5, 6 Poe v. Ullman, 367 U.S. 497 (1961) ............................................................................................................... 8, 34, 36 Poelker v. Doe, 432 U.S. 519 (1977) ................................................................................................................... 12, 13 Reproductive Services v. Keating, 35 F. Supp.2d 1332, 1337 (N.D. Okla. 1998) ....................................................... 20 Richmond Med. Ctr. v. Herring, 527 F.3d 128, 131 (4th Cir. 2008) ............................................................................ 24 Roe v. Wade, 410 U.S. 179 .............................................................................................................................. passim Rosen v. Louisiana State Bd. of Medical Examiners, 318 F. Supp. 1217, 1223 (E.D. La. 1970) .................................... 5 Copyright ©2016 If/When/How. All rights reserved. 6 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 Simopoulos v. Virginia, 462 U.S. 506, 508 (1983) ..................................................................................................... 15 Skinner v. Oklahoma, 316 U.S. 535 (1942) ....................................................................................................... 4, 8, 34 State v. Barquet, 262 So.2d 431 (Fla. 1972) .............................................................................................................. 6 State v. Munson, 201 N.W.2d 123 (S.D. 1972) ........................................................................................................... 6 Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970), ........................................................................................ 5, 6 Stenberg v. Carhart, 530 U.S. 914 (2000) .......................................................................................................... 21, 23 Summit Medical Ctr. of Ala. v. Riley, 318 F. Supp. 2d 1109, 1113 (M.D. Ala. 2003 .................................................... 20 Thornburgh v. ACOG, 476 U.S. 747 (1986) ...................................................................................................... 9, 16, 17 Tucson Women’s Clinic v. Eden, 379 F.3d 531, 538 (9th Cir. 2004) ........................................................................... 20 Tyndale House Publrs, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) ............................................................. 29 Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891) ................................................................................................. 8 Webster v. Reproductive Health Services, 492 U.S. 490 (1989) ................................................................................ 17 Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. Dec. 2012) .................................................................................. 29 Young Women’s Christian Ass’n of Princeton v. Kugler, 342 F. Supp. 1048, 1071 (D.N.J. 1972) .............................. 5, 6 STATUTES 25 No. 1 Cal. Ins. L. & Reg. Rep. 1 ........................................................................................................................... 28 42 U.S.C.A. § 2000bb-1 .......................................................................................................................................... 28 45 C.F.R. § 147.140 ................................................................................................................................................ 26 Employment Division, Dept Human Resources Oregon v. Smith, 494 U.S. 872 (1990) ............................................... 28 H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 ................................................................................................ 24 Health Care and Education Reconciliation Act of 2010, Pub. Law No. 111-152, 124 Stat. 1029 (2010) ................... 25 Neb. Rev. Stat. Ann. § 28-328(1) (1999) ................................................................................................................. 20 Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 .......................................................... 20 Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012) (codified at 45 C.F.R. 147 (a)(1)(iv)(B) ......................................................................................................................................................... 26 Pub. Law No. 111-148, 124 Stat. 119 (2010) ........................................................................................................... 25 South Dakota, H.B. 1215 (2006).............................................................................................................................. 23 OTHER AUTHORITIES U.S. CONST. AMEND. IX. ......................................................................................................................................... 11 Copyright ©2016 If/When/How. All rights reserved. 7 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 PREFACE For the vast majority of law students, their Constitutional Law course offers the only chance during law school to be exposed to reproductive rights jurisprudence. Moreover, in far too many Con Law classes, discussions of reproductive rights law focus solely on cursory arguments about the wisdom or folly of Roe v. Wade. Too often, professors and peers dismiss reproductive rights cases as errors of judicial overreach that will inevitably be overturned. Nuances of abortion rights are ignored, not to mention other issues of reproductive justice. The narrowing of this rich body of legal thinking and jurisprudence to a yes/no argument on abortion does not promote institutional respect for reproductive justice, nor does it train future lawyers to think beyond simplistic and personalized “pro-life” v. “pro-choice” views. Today’s increasingly hostile political climate demands lawyers who can articulate well-reasoned, passionate defenses of bodily autonomy, privacy, liberty, and equality and induce government action to shape law and policy. Thus, exposure during law school to these concepts and cases is crucial. PURPOSES & USES If/When/How created this Constitutional Law Primer for two reasons: (1) to fill in the gaps that might be left by typical Con Law coursework and provide students with a solid foundation from which to continue exploring these topics throughout law school and beyond; and (2) to help stimulate rich classroom discussions. By asking questions based on perspectives within the Primer, students can engage professors and classmates in meaningful academic discourse that reaches beyond the bumper stickers and sound bites to more nuanced legal theory and doctrine. As an advocate inside the classroom, students may reach even more people through academic discourse than through on-campus activism, exposing future prosecutors, public defenders, law professors, politicians, policymakers, and judges to this significant, and largely misunderstood, body of law. We encourage students to meet with their Con Law professor during office hours, share a copy of the Primer, and respectfully request that s/he devote more time in the syllabus to exploring the issues contained herein. The Primer can also be used by chapters as an organizing tool. One suggestion is to distribute copies of the Primer to chapter members to read and discuss, “book club style,” before particular cases are covered in Con Law. It may be a great opportunity for 1L members to bond or for more knowledgeable members to mentor those who are newer to these concepts. Another idea is to share the Primer with a Con Law professor who is open to these issues and invite him/her to talk with chapter members about it over lunch. After reading and discussing the Primer, chapter members will enter the classroom equipped to challenge false notions and foster meaningful discussions about reproductive rights. STRUCTURE The Primer features an overview of the evolution of constitutional protections for reproductive autonomy, including in-depth explanations of major cases and summaries of many others (see Appendix B). It also briefly outlines the chief arguments against these constitutional protections, levied mostly against Roe v. Wade. The rights to contraception and abortion are dominant– not because these are the only important reproductive rights but because the central legal debates have swirled around state and federal laws limiting access to them. The Primer was written with brevity and digestibility in mind; thus, it will likely raise more questions than it answers and is intended as a starting point for discussion and further exploration. Copyright ©2016 If/When/How. All rights reserved. 8 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 I. INTRODUCTION Below you will find an overview of the evolution of the rights to and restrictions on abortion and contraception in the major cases from Griswold v. Connecticut to Gonzales v. Carhart and the recent contraception mandate cases arising from the Affordable Care Act (Part II); an outline of three major arguments against constitutional protections and some responses to those critiques (Part III); an outline of doctrinal sources of the right to reproductive autonomy (Appendix A); and shorter descriptions of the most important Supreme Court cases from early recognition of the right to privacy to the current conceptualization of undue burdens on that right (Appendix B). II. EVOLUTION OF THE RIGHTS TO ABORTION AND CONTRACEPTION A. THE RISE OF FORERUNNERS TO ROE The development of the right to reproductive autonomy can be seen as a process of modest incrementalism. Ideas of individual liberty, developed before the founding of the United States, evolved into reproductive rights jurisprudence first as the freedom to control family life,1 then as the rights to procreation, contraception, and abortion. Skinner v. Oklahoma, 316 U.S. 535 (1942), was the first case in which the Court specifically recognized that marriage and procreation are “fundamental” and “basic civil rights of man.” Id. at 541 (holding that a prisoner convicted of multiple ‘crimes against moral turpitude’ cannot be castrated as a condition of his conviction because it would violate his fundamental right to procreate). However, it would be two more decades before the Court protected the right to avoid procreation in Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down a ban against giving contraceptive advice to married couples). In Griswold, defendants were arrested for giving information, instruction, and medical advice to married couples regarding the use of contraception in violation of a Connecticut statute prohibiting aiding or abetting a person in using any contraceptive drug. Id. at 480. The Court held that the challenged statute intruded upon the “the zone of privacy created by several fundamental constitutional guarantees,” citing the First, Third, Fourth, Fifth, and Ninth Amendments. Id. at 484-85. Together these amendments created a zone of privacy because the Court noted that they “have penumbras, formed by emanations from those guarantees that help give them life and substance.” Id. at 484. Notably, Griswold was limited to access for married couples. Seven years later, in Eisenstadt v. Baird, 405 U.S. 438 (1972) (Baird II), the Court struck down a statute which permitted married persons, but not single persons, to obtain contraceptives to prevent pregnancy, stating “it would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication.” Id. at 448. In this case, the Court gave further meaning to the right to privacy in the context of reproductive rights, saying it is “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id. at 453. Even though it used the word “fundamental,” the Court avoided the question of whether single people had a fundamental right—in constitutional terms—to contraceptives. Instead, it held that it did not need to decide that question since prohibition failed to meet the lower standard of “rational basis” and was not “rationally related to a valid public purpose,” id. at 447 n.7, noting that “whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.” Id. at 453. 1 See Meyer v. Nebraska, 262 U.S. 390 (1923) (stating that liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children”); Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) (striking down an Oregon law requiring all “normal children” ages eight to sixteen to attend public school through the eighth grade because “we think it entirely plain that the Act . . . unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”). Copyright ©2016 If/When/How. All rights reserved. 9 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 B. PRE-ROE ABORTION CHALLENGES 1. Privacy Roe v. Wade was not the first case that challenged abortion restrictions. Cases challenging statutes that prohibited or severely restricted access to abortion before Roe often raised the constitutional argument that the challenged statute violated the right to privacy announced in Griswold. In Hall v. Lefkowitz, 305 F. Supp. 1030 (S.D.N.Y. 1969), for example, plaintiffs challenged a New York statute prohibiting abortion, claiming it violated the right to privacy. Id. at 1031. Some courts were receptive to this argument. In Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972), a pregnant plaintiff and group of medical personnel brought an action to challenge a Connecticut abortion statute, claiming that the statute violated the right to privacy found in the Ninth Amendment or the “penumbras” of the First, Third, Fourth, Fifth and Ninth Amendments as incorporated by the Fourteenth Amendment. Id. at 801, 805. To formulate the applicable standard, the court in Abele balanced the interests of the state against those of the pregnant woman, id. at 802-803, and established that “[t]he essential requirement of due process is that the woman be given the power to determine within an appropriate period after conception whether or not she wishes to bear a child.” Id. at 804. The court noted that the state’s proffered interests—inhibiting promiscuous sexual relationships and protecting pregnant women from dangerous surgical procedures—were no longer relevant in light of “changed moral standards” and advances in medicine. Id. at 803. The state’s interests were outweighed by the pregnant woman’s interest in the decision of whether or not to bear the child due to societal changes,2 the importance of the decision to the pregnant woman,3 and the perceived population crisis. Other pre-Roe courts similarly found that abortion statutes infringed on the right to privacy.4 However, some courts were not amenable to the argument that statutes prohibiting abortion violated the right to privacy announced in Griswold. In Steinberg v. Brown, 321 F. Supp. 741 (N.D. Ohio 1970), the court rejected plaintiffs’ privacy claim, announcing that the applicable test was “whether or not the state has a legitimate interest to legislate for the purpose of affording an embryonic or fetal organism an opportunity to survive.” Id. at 746. The court rejected the plaintiffs’ reliance on Griswold in their argument that the right to privacy extends to the right to “destroy the product of conception after it has taken place.” Id. at 745. The court found that the state has a legitimate interest in affording a “fetal organism the right to survive,” and that that interest is “superior to the claimed right of a pregnant woman . . . to destroy the fetus except when necessary to preserve her own life.”5 Id. at 746. Other courts came to similar conclusions about the right to privacy as applied to the decision to terminate a pregnancy.6 2 The court expounded: The changed role of women in society and the changed attitudes toward them reflect the societal judgment that women can competently order their own lives and that they are the appropriate decision makers about matters affecting their fundamental concerns. Abele v. Markle, 342 F. Supp. 800, 802 (D. Conn. 1972). 3 According to the court, The decision to carry and bear a child has extraordinary ramifications for a woman. Pregnancy entails profound physical changes. Childbirth presents some danger to life and health. Bearing and raising a child demands difficult psychological and social adjustments. The working or student mother frequently must curtail or end her employment or educational opportunities. The mother with an unwanted child may find that it overtaxes her and her family's financial or emotional resources. The unmarried mother will suffer the stigma of having an illegitimate child. Thus, determining whether or not to bear a child is of fundamental importance to a woman. Id. at 801-802. 4 See, e.g., Young Women’s Christian Ass’n of Princeton v. Kugler, 342 F. Supp. 1048, 1071 (D.N.J. 1972) (holding that the challenged statute violated the right to privacy that exists in the Constitution, “whether derived from the penumbras and emanations of various constitutional provisions or amendments, the Ninth Amendment, the Due Process Clause of the Fourteenth Amendment or a combination thereof.”); Doe v. Scott, 321 F.Supp. 1385, 1389 (N.D. Ill. 1971) (holding that the statute intrudes on constitutionally protected areas of “women’s rights to life, to control over their own bodies, and to freedom and privacy in matters relating to sex and procreation.”); Poe v. Menghini, 339 F. Supp. 986, 993 (D. Kan. 1972) (holding that there exists a fundamental (but not limitless) right to “individual and marital privacy which includes within its scope the right to procure an abortion.”); Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970) (holding abortion statute unconstitutionally infringed on right to privacy). 5 To support this proposition, the court went on to cite several authorities for the claim that life begins at conception. See Steinberg v. Brown, 321 F. Supp. 741, 747 (N.D. Ohio 1970) (“From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception which it is in fact” (citation omitted). 6 See, e.g., Rosen v. Louisiana State Bd. of Medical Examiners, 318 F. Supp. 1217, 1223 (E.D. La. 1970) (stating the “[e]xercise of the right to an abortion on request is not essential to an effective exercise of the right not to bear a child, if a child for whatever reason is not Copyright ©2016 If/When/How. All rights reserved. 10 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 2. Void-for-Vagueness Many pre-Roe cases challenged statutes restricting or prohibiting abortion on the grounds that the statutes were unconstitutionally vague. Here, too, courts were split as to the constitutionality of challenged statutes under a void- for-vagueness theory. In Steinberg, the court held the challenged statute was not unconstitutionally vague because its words, “taken in their ordinary meaning,” have long informed the public what is prohibited conduct under the statute. 321 F. Supp. at 745. See also Abele, 342 F. Supp. at 801 (rejecting plaintiffs’ vagueness claim); Crossen v. Atty. Gen. of Ky., 344 F. Supp. 587, 590 (D. Ky. 1972) (same). However, the court in Young Women’s Christian Association of Princeton v. Kugler, 342 F. Supp. 1048, 1071 (D.N.J. 1972) reached the opposite conclusion. There, the court held that the statute was unconstitutionally vague because it proscribed the rendering of abortions absent a “lawful justification” but failed to define “lawful justification” with precision. Id. at 1066. Similarly, in Doe v. Scott, the plaintiffs challenged an Illinois statute that prohibited all abortions except when necessary for the preservation of the woman's life. 321 F. Supp. at 1388. The court held that the statute was unconstitutionally vague because it placed physicians in the precarious position of “find[ing] himself [or herself] threatened with becoming a felon as well as with the possibility of losing his right to practice his profession if he errs in the legal interpretation of a penal statute.” Id. at 1389. See also Babbitz v. McCann, 310 F.Supp. 293 (E.D. Wis. 1970) (finding challenged abortion statute unconstitutionally vague); State v. Barquet, 262 So.2d 431 (Fla. 1972) (same). 3. Equal Protection A few pre-Roe cases put forward arguments that the challenged statutes violated the Equal Protection Clause of the Fourteenth Amendment. In Steinberg, the court rejected plaintiffs’ argument that the statute violated the Equal Protection Clause because wealthier persons can obtain abortions more easily than poor persons. 321 F. Supp. at 748. The court rejected the claim that the statute violated the Equal Protection Clause because “[t]he equal protection clause is not designed to prevent that inequality which is often found in life and in nature.” Id. See also Hall, 305 F. Supp. at 1031; Babbitz, 310 F. Supp 293 (rejecting plaintiffs’ equal protection claim). 4. Physicians’ Rights When physicians or medical personnel were plaintiffs or petitioners in pre-Roe challenges to abortion statutes, their claims often related to healthcare providers’ rights to participate in constitutionally protected activities, to practice their profession of choice, and to privacy in their relationships with patients. In Kugler, plaintiffs included a class of physicians who alleged that the challenged statute deprives them of their right to practice medicine and to privacy in their physician-patient relationships. The statute was held to unconstitutionally infringe upon the physicians’ First Amendment right to participate in constitutionally protected activities and their Fourteenth Amendment right to participate in their chosen profession. 342 F. Supp. at 1066. In Poe v. Menghini, plaintiffs challenged a Kansas statute permitting abortion only in the case of rape or incest, to preserve the health or life of the mother, or if the child would be born with a physical or mental defect. The statute also required that abortions be performed in state- licensed hospitals with specific accreditation requirements, 339 F. Supp. at 988-99, and that three physicians attest to the necessity of the procedure. Id. at 995. The court held that the three-physician requirement was unconstitutional, because it bore no rational relationship to the proffered state interests, and it infringed on the right of physicians to practice their profession and exercise their professional discretion. Id. at 995-96. See also State v. Munson, 201 N.W.2d 123, 123 (S.D. 1972) (defendant abortion provider arguing that statute under which he was prosecuted interferes with a physician’s right to practice medicine and care for his patients). wanted.”); Corkey v. Edwards, 322 F. Supp. 1248, 1251 (D.C.N.C. 1971) (holding the challenged statute constitutional because, “We deal in this case . . . not merely with whether a woman has a generalized right to choose whether to bear children, but instead with the more complicated question whether a pregnant woman has the right to cause the abortion of the embryo or fetus she carries in her womb.”); Crossen v. Atty. Gen. of Ky., 344 F. Supp. 587, 591 (D. Ky. 1972) (holding statute constitutional because “[t]he State's interest in the “preservation of potential human life outweighs and supersedes any right to privacy a woman or family may claim.”). Copyright ©2016 If/When/How. All rights reserved. 11 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 5. Other Theories Many of the pre-Roe abortion cases proposed theories of unconstitutionality that relied on the Ninth Amendment’s reservation of rights to the people.7 See, e.g., Abele, 342 F. Supp. at 805 (arguing that challenged statute violates the Ninth Amendment); Kugler, 342 F. Supp. at 1053 (same); Poe, 339 F. Supp. 986 (same). However, the Supreme Court later clarified that the Ninth Amendment does not confer any substantive rights. See Roe v. Wade, 410 U.S. 179, 210 (“The Ninth Amendment obviously does not create federally enforceable rights.”) (Douglas, J., concurring). At least one case in the pre-Roe era argued that the challenged statute violated the Eighth Amendment’s proscription against cruel and unusual punishment. Steinberg, 321 F. Supp. at 745. The court summarily rejected this claim, stating that “[i]f one gambles and loses, it is neither statute nor constitution that determines the price, or how it shall be paid. The result is not punishment, but merely the quid pro quo.” Id. at 748. And, in one case in which a physician was prosecuted under South Dakota’s abortion laws, the physician unsuccessfully argued that the statute constituted excessive police power in violation of the Fourteenth Amendment. State v. Munson, 201 N.W.2d 123, 125 (S.D. 1972). C. THE LANDMARK: ROE V. WADE Just two years after its statement in Eisenstadt that the right to privacy embraces “matters so fundamentally affecting a person as the decision whether to bear or beget a child,” the Court was faced with a challenge to Texas’s law criminalizing abortions. The Court held that the right to privacy is broad enough to include protection for the right to abortion. Roe v. Wade, 410 U.S. 113, 153 (1973). In Roe, the Court declared the right to terminate a pregnancy a “fundamental right,” id. at 155; see also id. at 152 (“[T]hese decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’ . . . are included in this guarantee of personal privacy.”) (citation omitted), and subjected restrictions on the right to “strict scrutiny,” the highest level of constitutional protection. Like all fundamental rights, the right to abortion was not “absolute”; but restrictions on abortion, like restrictions on other fundamental rights, had to be “narrowly tailored” to serve a “compelling” state interest. Id. at 155. The Court also limited the state interests that could justify restrictions on the right to terminate a pregnancy. It held that in the period before a fetus is viable, the government could restrict abortion only to protect the woman's health. After viability, however, the government could go so far as to prohibit abortion, but laws must make exceptions that permit abortions when necessary to protect the woman's health or life.8 Id. at 162-65. *** Roe v. Wade, decided one year after Eisenstadt, must be seen in the context of the enormous societal changes taking place during the late 1960s and early 1970s. Consider the demands being place on the court, its view of individual liberty as expressed in these other cases, and the place women occupied in the family, the workplace, and society at the time. Viewed in this historical context, Roe represented an enormous breakthrough for women. At the same time, seen in its place alongside the court’s recognition of liberty in other contexts, one can hardly imagine a different outcome. *** 7 The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. CONST. AMEND. IX. 8 To the criticism that drawing the line between pre- and post-viability is misguided because viability changes with medical advancements, note that the gestational age of viability has not changed since Roe was decided. In 1973, the Court stated that “Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v. Wade, 410 U.S. 113, 160. This remains accurate. The major medical advances have been in the outcomes between 24 and 28 weeks; medical outcomes for babies born during that time period have improved. However, viability has not advanced beyond 24 weeks. Copyright ©2016 If/When/How. All rights reserved. 12 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 1. Source of Protection It is important to note that Roe is often criticized for basing the right to privacy in “penumbras” and “shadows” of the Bill of Rights. However, it was Griswold, not Roe, which first based the right to privacy in “penumbras” and “shadows” of the many provisions of the Bill of Rights. To support the holding in Roe, the Court cites its many previous cases that recognized constitutional protection for a right to privacy, such as Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891), Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.s. 510 (1925), Skinner v. Oklahoma, 316 U.S. 535 (1942), Griswold v. Connecticut, 381 U.S. 475 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), and an important dissent by Justice Harlan in Poe v. Ullman, 367 U.S. 497 (1961), a pre-Griswold right to contraceptives case. Id. at 152. For discussion of these cases, see supra and Appendix B. However, these cases were not consistent on the doctrinal basis for the right to privacy itself. The Court, therefore, reviewed the potential sources of the right to privacy: The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment . . . in the Fourth and Fifth Amendments . . . in the penumbras of the Bill of Rights . . . in the Ninth Amendment . . . or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment . . . Id. at 152-53 (citations omitted). The Court then notes that the right to privacy has been extended to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. The plaintiff in Roe had argued that there were three possible bases for constitutional protection of a pregnant woman’s right to choose to terminate her pregnancy: “liberty” guaranteed by the Fourteenth Amendment’s Due Process Clause; the “personal, familial, and sexual privacy” protected by the Bill of Rights or its penumbras; or among the rights reserved to the people by the Ninth Amendment. Id. at 129. In response, the Court acknowledged that it had in the past grounded a constitutional right to privacy in these three separate aspects of the Constitution, distinguishing between, among others, the penumbras of the Bill of Rights, announced in Griswold; the Ninth Amendment, relied on by Justice Goldberg in concurrence in Griswold, id. at 486 (Goldberg, J., concurring), and the concept of liberty guaranteed by the first section of the Fourteenth Amendment, cited in Meyer v. Nebraska. Nevertheless, the Roe Court indicated a clear preference for the liberty right found in the Due Process Clause of the Fourteenth Amendment. As the Court wrote: This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. Id. at 153 (emphasis added). Note that the Court does not reference Griswold’s penumbra analysis in this final sentence, setting out what it determines are the two possible bases of the right. Id. Note also that Justice Stewart expands on the doctrinal basis adopted by the Court, advocating in concurrence that the right to abortion should have been grounded directly in the liberty right, without the intermediary “right to privacy.” *** Consider whether the right recognized in Roe should have been grounded in the liberty right of the Fourteenth Amendment, rather than in the right to privacy, which itself is grounded in the right to liberty. Justice Stewart’s concurrence makes the argument, stating that the “right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.” 40 U.S. at 170 (“There is no constitutional right of privacy, as such.”) (Stewart, J. concurring). The concurrence is worth reading for help in clarifying these distinctions. *** Copyright ©2016 If/When/How. All rights reserved. 13 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 2. Balancing Interests As noted above, the Court did not grant what it called an “absolute” right to the pregnant woman. Id. at 153. Instead, as with all fundamental rights, the Court balanced the individual liberty at stake against the state’s interests in the restrictions. Id. at 153-54. Thus, the Court holds that: The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly. Id. at 159 (citations omitted).9 The Court makes three observations in rejecting the argument that the fetus is entitled to a right to life under the Fourteenth Amendment: 1) “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today,” id. at 158; 2) none of the states have criminal abortion statutes that would comply with the Fourteenth Amendment if this were true since none of them prohibit all abortions, id. at 157 n.54; and 3) “in nearly all the [circumstances in which the word ‘person’ is used in the Constitution], . . . the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application,” id. at 157. The Court holds, therefore, that “[a]ll this, . . . persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Id. at 158. (See Part III. B. for discussion of fetal “personhood”.) The Court then examines the state’s contention that, “apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and . . . therefore, the State has a compelling interest in protecting that life from and after conception.” The Court refuses to find that “life” begins at conception, noting briefly, “the wide divergence of thinking on this most sensitive and difficult question.” Id. at 160. 3. The Trimester System In its balancing, the Court recognized the changing nature of pregnancy, both in terms of the seriousness of the condition itself, the medical complications that can occur during pregnancy, and the relative risks faced by women who carry to term versus those who choose to terminate their pregnancies early. For all the criticism of the trimester 9 Note that in dissent in Thornburgh v. ACOG, 476 U.S. 747 (1986), Justice White uses Roe’s phrase, “[t]he pregnant woman cannot be isolated in her privacy” to support his claim that the existence of the fetus makes everything different and to argue that the restrictions on the right should never have been subjected to heightened scrutiny. He differentiates between Griswold and Roe on this basis: [T]hat the abortion decision, like the decisions protected in Griswold, Eisenstadt, and Carey, concerns childbearing (or, more generally, family life) in no sense necessitates a holding that the liberty to choose abortion is “fundamental.” That the decision involves the destruction of the fetus renders it different in kind from the decision not to conceive in the first place. This difference does not go merely to the weight of the state interest in regulating abortion; it affects as well the characterization of the liberty interest itself. Thornburgh, 476 U.S. at 792-93 n.2 (White, J., dissenting). In concurrence, Justice Stevens responds, taking Justice White to task for his failure to recognize the strength and independence of the woman’s liberty interests in abortion: There may, of course, be a significant difference in the strength of the countervailing state interest [with respect to restrictions on contraception versus restrictions on abortion], but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more “fundamental” to the individual's freedom than the other, surely it is the postconception decision that is the more serious. Id. at 776 (Stevens, J., concurring). The debate is instructive for understanding many of the contemporary debates as well. Copyright ©2016 If/When/How. All rights reserved. 14 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 framework, it recognized a fact –still true today— that the medical complexities of abortion procedures, the risks associated with pregnancy, and the important facts of fetal development correspond closely with the transitions from trimester to trimester. The Court noted that, because the respective interests must be weighed in light of the point in pregnancy which the woman has reached, the privacy right involved “cannot be said to be absolute.” Id. at 154. The Court went on to hold that “the right of personal privacy includes the abortion decision,” but that the right is “not unqualified and must be considered against important state interests in regulation.” Id. The state’s interests, the Court held, are “separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’” Id. at 162-63. As a result, the Court held that, with respect to the State's interest in the health of the mother, the “compelling” point is approximately at the end of the first trimester because “until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.” Id. at 163. The Court thus held that at the end of the first trimester and on, the government may constitutionally regulate abortion procedures “to the extent that the regulation reasonably relates to the preservation and protection of maternal health.” Id. However, prior to this “compelling” point, the government may not regulate the abortion procedure, and the attending physician is free to determine up until the end of the first trimester that the patient’s pregnancy should be terminated. Id. The Court then addressed the state’s separate interest in potential life, holding that the “compelling” point is at viability. The Court noted that post-viability abortion regulations have “both logical and biological justifications,” but the government may not proscribe abortion even post-viability when the procedure is necessary to preserve the life or health of the pregnant woman. Id. at 163-64. Thus, the Court in Roe held that the state may not regulate abortion throughout the first trimester; that the state may regulate abortion in the second trimester if such regulations reasonably relate to government interests in maternal health; and the state may regulate and even prohibit abortion during the third trimester provided they allow an exception for the health or life of the pregnant woman. 4. Whose Right Is It? One regrettable aspect of the Roe decision is the Court’s limited analysis of the impact of denying the right to abortion to a woman. In fact, the Court mostly describes the right as belonging to the physician, rather than to the woman at all, stating that “the attending physician, in consultation with his patient, is free to determine . . . that . . . the patient's pregnancy should be terminated.” Id. at 163 (emphasis added). The Court goes on to say that the abortion decision “must be left to the medical judgment of the pregnant woman's attending physician,” id. at 164 (emphasis added), and “is inherently, and primarily, a medical decision.” Id. at 166 (emphasis added). The Court’s discussion of the pregnant woman’s role and right in the decision-making process is brief and focused on the harm that would befall her if denied the abortion: [T]he detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. . . . Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. . . . [T]he additional difficulties and continuing stigma of unwed mother-hood may be involved. Id. at 152-53 (emphasis added).10 10 But see Roe, 410 U.S. at 170, where the focus is on the significance of the potential harm wrought by carrying an unwanted pregnancy to term, rather than on the significance of the right to the pregnant woman (quoting Abele v. Markle, 351 F. Supp. 224, 227 (D. Conn.1972)) (describing impact of pregnancy, birth and child-rearing on women as “of a far greater degree of significance and personal intimacy than the right[s] . . . protected in Pierce . . . or . . . Meyer . . .” ) (Stewart, J., concurring). Copyright ©2016 If/When/How. All rights reserved. 15 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 D. THE EROSION: POST-ROE LIMITATIONS ON THE RIGHT Even before Roe, the strength of the anti-abortion movement had grown considerably and had been successfully targeting state legislatures to prevent a further erosion of criminal prohibitions. Immediately after Roe, the anti- abortion movement continued working in state legislatures, but now enacted restrictive statutes in states where they had legislative control. They also began working in earnest to change the Court’s personnel. When pro-choice advocates responded to restrictive legislation regulating abortion with court challenges, the constitutional conversation over the right to abortion began in earnest. At first the Court responded with strength to these attacks, but the initial promise of Roe began to erode in the late 1970s. First, the Court limited the right for the most vulnerable populations—young women and low-income women; then, additional aspects of the Roe standard gave way. 1. Early Bans on Abortion Methods In the years after Roe, the Court reaffirmed the requirement of Roe that any restrictions on abortion, even bans on abortion in the third trimester, must protect women’s health. For example, in Planned Parenthood v. Danforth, 428 U.S. 52 (1976), the Court struck down a ban on “saline amniocentesis” abortions after 12 weeks, finding that the banned method was “the one most commonly used nationally by physicians after the first trimester” and “safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth.” Id. at 78, 79. The Court noted that the ban forced a woman to undergo a method “more dangerous to her health than the method outlawed.” 2. Post-Viability Bans and Determination of Viability On the other hand, the Court in Danforth upheld a ban on post-viability procedures, which put the attending physician in charge of determining viability on a case-by-case basis. Id. at 64. The Court explained that any such viability determinations must be within the physician’s discretion. Id. *** Consider a physician’s concerns about prosecutorial abuses and dilution of the right in the first trimester. Also, consider whether the language in the Danforth holding that the ban was “designed to inhibit, and ha[d] the effect of inhibiting abortions after 12 weeks was a precursor to the “purpose and effect” language of Casey. See infra. *** 3. The Rights of Young Women and Wives: Notification and Consent Requirements Also in Danforth, the Court struck down a blanket, one-parent consent provision11 and a spousal consent provision on the basis that both unconstitutionally granted a third party “veto power” over the woman’s decision to terminate her pregnancy. 428 U.S. at 78-79. The Court acknowledged “the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying,” id. at 69, but held that “[i]nasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.” Id. at 71. Similarly, the Court held that the State may not give a third party—in this case a parent—“an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.” Danforth, 428 U.S. at 74. The Court did leave the door open, however, for some kind of restriction on minors’ rights, stating that while a parent’s interest in the outcome of their child’s 11 In evaluating the one-parent consent requirement, the Court held that “[m]inors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976). However, the Court appeared to abandon strict scrutiny for restrictions on minors, arguing that parental consent provisions could be valid if they served “any significant state interest . . . that is not present in the case of an adult.” Id. at 75. Copyright ©2016 If/When/How. All rights reserved. 16 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 pregnancy is not more significant than the pregnant minor’s privacy interest, the Court was “not suggest[ing] that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy.” Id. at 75 (emphasis added). The following year, in Carey v. Population Services Int’l, 431 U.S. 678 (1977), the Court applied the compelling state interest test to strike down a New York law prohibiting distribution of “nonmedical” contraceptives to persons over sixteen years of age, except through a licensed pharmacist. The Court held the prohibition was unconstitutional, not because there was a separate “right of access to contraceptives,” but because “such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing” underlying Griswold, Eisenstadt, and Roe. Id. at 688-89.12 The Court also struck down a provision of the statute that prohibited distribution of contraceptives to persons sixteen and under. Four Justices wrote that “[t]he State’s interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life are clearly more implicated by the abortion decision than by the decision to use a nonhazardous contraceptive.” Id. at 694-95. The Court noted that, because the government may not constitutionally impose a blanket consent requirement that gives a parent “veto” power in order for a minor to obtain an abortion, the government may also not impose a blanket prohibition on the distribution of contraceptives to minors. Id. at 694. Three years later, in Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the Court expands on the standards for evaluating restrictions on minors’ access to abortion, striking down a Massachusetts statute that required a pregnant minor seeking an abortion to obtain the consent of her parents or to obtain judicial approval following notification to her parents. The Court held that states could require parental consent for minors, as long as an alternative hearing was available through which minors could seek a waiver from the requirement if they could prove that they were “mature” or that an abortion was in their “best interests.”13 Today, these types of parental involvement requirements are enforced in 39 states.14 Laws that did not meet these requirements were struck down, see, e.g., City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (striking down parental consent requirement with no bypass), overruled on other grounds, Planned Parenthood v. Casey, 505 U.S. 833 (1992). These “Bellotti standards” remain in effect today with federal court litigation focusing on the adequacy of judicial bypass provisions, how expeditious the process is, and whether it preserves the minor’s confidentiality. 4. Bans on Public Funding for Abortions In 1977, foreshadowing the Court’s decision in Harris v. McRae, 448 U.S. 297 (1980) (ban on federal funding for abortion), the Court upheld bans on state and local funding for abortion in three cases all decided on the same day. See Beal v. Doe, 432 U.S. 438 (1977) (Pennsylvania funding ban upheld); Maher v. Roe, 432 U.S. 464 (1977) (Connecticut funding ban upheld); Poelker v. Doe, 432 U.S. 519 (1977) (City of St. Louis funding ban upheld). Although these cases were more limited in scope, they set the stage for the Court’s broad-reaching decision in Harris. In Maher v. Roe, 432 U.S. 464, the Court held that the Equal Protection Clause did not require Connecticut to pay for abortions that were “nontherapeutic,” i.e., not medically necessary, even where it paid for labor and delivery services. The Court held that the funding ban was not an invasion of the fundamental right to abortion, stating: The Connecticut regulation places no obstacles absolute or otherwise in the pregnant woman’s path to an abortion. An indigent woman who desires an abortion suffers no disadvantage as a consequence of 12 The Court also struck down a prohibition of any advertisement or display of contraceptives under the First Amendment. Carey v. Population Services Int’l, 431 U.S. 678, 700 (1977). 13 The Court also held that the “alternative hearing,” usually referred to today as a judicial bypass, must “be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Thus, states were prohibited from requiring procedures that would, in effect, “amount to the ‘absolute, and possibly arbitrary, veto’ that was found impermissible in Danforth.” Bellotti v. Baird, 443 U.S. 622, 644 (1979) (citation omitted). 14 Guttmacher Institute, Parental Involvement in Minors’ Abortions (Oct. 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf. Copyright ©2016 If/When/How. All rights reserved. 17 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 Connecticut's decision to fund childbirth; she continues as before to be dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. Maher, 432 U.S. at 474. The Court then applied the rational basis test and rejected the equal protection argument, holding that the distinction drawn between abortion and childbirth services was rationally related to the “constitutionally permissible” state interest in encouraging childbirth. Id. at 478-79. The Court also pointed out that the abortion services demanded by plaintiffs were “nontherapeutic” services, whereas the labor and delivery services provided were medically necessary. Id. Similarly, in Poelker v. Doe, 432 U.S. 519 (1977), the Court held that the refusal of the city of St. Louis to provide publicly financed hospital services for “nontherapeutic” abortions did not deny equal protection, even where it provided such services for pregnant women who carried to term and gave birth. Id. at 521. In Beal v. Doe, 432 U.S. 438 (1977), the Court held that the federal statute establishing the Medicaid program (the federal- and state- financed program providing healthcare services to low-income people) did not require Pennsylvania to provide funding for “nontherapeutic” abortions as a condition of participation in the Medicaid program. Id. at 445-46. The Court reasoned that it was not “unreasonable” under the terms of the statute to further its “strong and legitimate interest in encouraging normal childbirth.” Id. *** When reading the abortion funding cases, keep in mind the Court’s earlier recognition in Carey v. Population Services Int’l that access to contraceptives was necessary to exercise the right to use contraception. *** In 1980, in what was probably the most devastating Supreme Court decision for reproductive justice to date, the Court in Harris v. McRae, 448 U.S. 297 (1980) upheld the federal Medicaid funding ban on abortion, the restriction that causes more women than any other to carry pregnancies to term against their will.15 In this case, the plaintiffs challenged the Hyde Amendment, enacted as a rider to the 1977 appropriations bill for the Department of Health and Human Services (then called the Department of Health Education and Welfare). The Hyde Amendment bans federal funding for most abortions in Medicaid and other federal programs and has been renewed annually ever since and applied to the Patient Protection and Affordable Care Act.16 Originally, the law restricted funding to those abortions necessary to save a woman’s life; in later years, funding has sometimes been available for abortions of pregnancies resulting from rape or incest as well. In Harris, the Court held that the funding ban did not violate a woman’s right to obtain an abortion because it was not the ban per se that prevented access to abortion, but rather her preexisting poverty.17 Id. at 316. As it had in Carey, the Court rejected the notion that the State has an affirmative duty to provide women with the means to access their reproductive liberties, stating that “the liberty protected by the Due Process Clause . . . does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” Id. at 317-18. But unlike in Carey, in this context, the Court failed to recognize that without the ability to access abortions, the right 15 More than 99% of publically funded abortions in FY 2010 took place in the 17 states that fund medically necessary abortions, which implies that restrictive Medicaid policies on abortion have not reduced the need for the procedure. Instead, as Representative Hyde hoped, the restriction on federal funding forces vulnerable and marginalized people to forgo needed healthcare. Public Funding for Family Planning, Sterilization and Abortion Services, FY 1980–2010, GUTTMACHER INST., (Mar. 2012), http://www.guttmacher.org/pubs/Public- Funding-FP-2010.pdf 16 On March 24, 2010, President Obama promulgated Executive Order 13535, in which he stipulated that the Hyde Amendment could continue to prohibit the use of federal funds for abortion care. See Press Release, Office of the Press Secretary, White House, Executive Order 13535-- Patient Protection and Affordable Care Act's Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion (Mar. 24, 2010) (available at http://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-affordable- care-acts-consistency-with-longst). 17 The Court writes, “the financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency.” Harris v. McRae, 448 U.S. 297, 316 (1980). Copyright ©2016 If/When/How. All rights reserved. 18 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 would ring hollow for low-income women. Id. Having decided that the funding ban did not interfere with a fundamental right and was not based on a suspect classification,18 the Court then applied the rational basis test to the plaintiffs’ equal protection argument. Again, as it had in Maher, the Court held that restricting funding for abortions was not “wholly irrelevant” to the governmental objective of encouraging childbirth over abortion. Id. at 322. In a widely quoted dissent, Justice Brennan, with Justices Marshall and Blackmun joining, charged that the Court misconceived the manner in which the right to abortion is infringed by state and federal funding bans. The question is not, he states, whether the State has an affirmative obligation to ensure access to abortions or whether the right at issue is a right to guarantee access to abortions. Rather, the issue is whether “the State must refrain from wielding its enormous power and influence in a manner that might burden the pregnant woman’s freedom to choose an abortion.” Id. at 330. Justice Brennan focuses on “the coercive impact of the congressional decision to fund one outcome of pregnancy— childbirth—while not funding the other—abortion,” id. at 330 n.4, and considers the ban’s consequence, which is “to leave sick women without treatment simply because of the medical fortuity that their illness cannot be treated unless their pregnancy is terminated.” Id. Viewed this way, the ban “intrudes upon [the right to abortion] for both by design and in effect it serves to coerce indigent pregnant women to bear children that they would otherwise elect not to have.” Id. As Justice Brennan explains: “[i]f the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner compel a surrender of all.” Id. at 337. As he states: [T]he fundamental flaw in the Court’s due process analysis, then, is its failure to acknowledge that the discriminatory distribution of the benefits of governmental largesse can discourage the exercise of fundamental liberties just as effectively as can an outright denial of those rights through criminal and regulatory sanctions. Id. at 334. Justice Stevens filed a separate dissent, joined by Justices Brennan, Marshall and Blackmun, in which he objects to the majority’s “sterile” equal protection analysis. Justice Stevens first points out that the challenge in Harris was different from those in Maher, Beal, and Poelker, in that it challenged the refusal to fund “medically necessary” abortions, rather than the “nontherapeutic” ones involved in the earlier cases. Here, “[t]he question is whether certain persons who satisfy [the Medicaid eligibility] criteria [including that of medical need] may be denied access to benefits solely because they must exercise the constitutional right to have an abortion in order to obtain the medical care they need.” Id. at 349 (Stevens J., dissenting). The government, he argues, “must use neutral criteria in distributing benefits. It may not deny benefits to a[n otherwise eligible] person simply because he is a Republican, [or] a Catholic . . . or because he has spoken against a [government] program.” The funding ban violates the government’s duty to govern “impartially.” Id. at 357. Justice Stevens also criticizes the majority for its failure to consider the ban’s impact on women’s health in its rationality argument. The opinion is “doubly erroneous,” he writes, because Roe stood for the proposition that the state cannot promote its interest in fetal life when a conflict with the pregnant woman’s health exists. Id. at 351-52. *** In a separate dissent, Justice Marshall derides the court’s “rigid two-tiered” Equal Protection approach, stating that the “Constitution requires a more exacting standard of review than mere rationality in cases such as this one.” Id. at 341. Note that none of the dissents described the distinctions at issue as gender-based. What type of analysis do you think should be used to evaluate the plaintiffs’ Equal Protection claim? Consider how the analysis would be different if the claim involved a gender-based distinction between the scope of medically necessary services for women and medically necessary services for men. *** 18 Id. at 323 (“[T]his Court has held repeatedly that poverty, standing alone is not a suspect classification”). Copyright ©2016 If/When/How. All rights reserved. 19 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 5. Hospitalization Requirements and Licensure On June 15, 1983, the Court issued three decisions concerning requirements that second-trimester abortions be performed in acute care hospital settings. First, in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) and Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (1983), the Court struck down second-trimester hospitalization requirements that prevented D&E abortions, the vast majority of abortions performed after the first twelve weeks of pregnancy, from being performed in “an appropriate nonhospital setting.” The regulations were unconstitutional because they “imposed a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and safe abortion procedure,” and had “the effect of inhibiting . . . the vast majority of abortions after the first twelve weeks.” City of Akron, 462 U.S. at 438; Ashcroft, 462 U.S. at 482. On the other hand, in Simopoulos v. Virginia, 462 U.S. 506, 508 (1983), the Court upheld a licensure requirement, noting that, unlike the regulations in Akron and Ashcroft, the Virginia requirement allowed second-trimester abortions to be performed in licensed, outpatient clinics. Id. at 507 (noting that “the Virginia statutes and regulations do not require that such abortions be performed exclusively in full-service hospitals, but permit their performance at licensed outpatient clinics”). The Court also indicated that the Virginia regulations were “generally compatible with accepted medical standards governing outpatient second-trimester abortions.” Id. at 517. The Court’s reasoning in Ashcroft, in particular, portend of changes to come. In Ashcroft, the Court upheld requirements that a second physician must attend the abortion of any viable fetus and that a board-certified or eligible pathologist examine and submit a report on the tissue removed following all abortions performed in clinics, as well as in hospitals. The Court reasoned that the requirement complied with accepted medical standards and viewed the impact of cost increases caused by the requirements on women’s access to abortions as limited, a view that would reappear in 1992 in Planned Parenthood v. Casey.19 The dissent sharply disagreed, stating that requirement that the examination be performed by a “board eligible or certified pathologist” rather than by the attending physician was “not in accord with ‘generally accepted medical standards’” and noting that “[i]t is undisputed that this requirement may increase the cost of a first-trimester abortion by as much as $40,” rather than the $20 claimed by the Court; “[a]lthough this increase may seem insignificant from the Court's comfortable perspective, [Justice Blackmun] cannot say that it is equally insignificant to every woman seeking an abortion. For the woman on welfare or the unemployed teenager, this additional cost may well put the price of an abortion beyond reach.”20 The Court held that the second-physician requirement “reasonably furthers” the State’s compelling interest in protecting the lives of viable fetuses, id. at 486, because the second physician would be able to provide immediate medical attention to a viable fetus that was born alive while the first physician attended to the woman. Id. at 485. Still, the Court was careful to ensure protection for women’s health, noting that the statute could be construed to allow a waiver of the requirement in any emergency situations in which the woman’s health may be endangered by delay in finding a second physician. Id. at 486 n.8 (citing limitation of requirement to apply only where “it does not pose an increased risk to the life or health of the woman,” and distinguishing H.L. v. Matheson, 450 U.S. 398, 407 n. 14 (1981) (rejecting argument that Utah statute might apply to individuals with emergency health care needs). 19 The Ashcroft Court held that “[t]he estimated additional cost of approximately $20 for compliance with the pathology requirement was justified” as a “comparatively small additional cost” given what the Court saw as the benefit to women’s health. Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476, 489 (1983). The Court held that a State did not need to “subordinate its interest in health” to keep the costs of abortions down, at least not “to this extent.” The Court felt that the $20 increase would have “no significant impact on the woman's exercise of her right to decide to have an abortion.” Id. at 489-90. 20 Id. at 495, 497-98 (Blackmun, J., dissenting). Copyright ©2016 If/When/How. All rights reserved. 20 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 6. Mandatory Delay and Biased Counseling Laws and Changing Standards of Review Laws requiring a woman to delay her abortion for a period of time, usually 24 to 48 hours, after she has been given certain state-mandated information, have sometimes been referred to as “informed consent laws.” However, the benign term “informed consent” fails to explain how these laws function. Most states have general requirements that physicians obtain “informed consent” from their patients before treatment. These requirements mandate that a physician explain the risks of the treatment to the patient. Mandatory delay and biased counseling laws for abortion, however, require physicians to give women “information” that the State – rather than the physician – deems important. This information has usually been designed to discourage women from having abortions,21 and often included false information, such as the disproved claim that abortion causes breast cancer. Physicians are required to pass on this information to the patient or face criminal and civil penalties. In 1976, the Court upheld a rather benign informed consent provision requiring that “a woman, prior to submitting to an abortion during the first twelve weeks of pregnancy, must certify in writing her consent to the procedure and ‘that her consent is informed and freely given and is not the result of coercion.’” Danforth, 428 U.S. at 65.22 The Court noted that the statute did not “confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession.” Id. *** Consider this “straitjacket” language when reading the informed consent language upheld in Casey and currently expanding. Given the advanced state of restrictions on reproductive rights today, it appears surprising that in Danforth, physicians challenged a post-viability ban that gave them discretion to determine viability and a consent provision that did not force them to give their patients false or misleading information but required only that a woman sign that she did indeed consent to the procedure. *** In City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court struck down a more involved mandatory delay and biased counseling provision for abortions. However, foreshadowing the plurality opinion in Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992), Justice O'Connor dissented and called for a radical erosion of Roe. She proposed that a lesser standard of constitutional protection, the “undue burden” standard, replace the “strict scrutiny” test for restrictions on abortion: The “unduly burdensome” standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context cannot be said to be absolute. Roe did not declare an unqualified constitutional right to an abortion. Rather, the Roe right is intended to protect against state action drastically limiting the availability and safety of the desired service against the imposition of an absolute obstacle on the abortion decision, or against official interference and coercive restraint imposed on the abortion decision. Akron, at 463-64 (O’Connor, J., dissenting) (emphasis added) (internal quotations and citations omitted). *** Consider whether the “unduly burdensome” standard articulated here by Justice O’Connor is more than a rational basis test. As the majority notes: The dissent stops short of arguing flatly that Roe should be overruled. Rather, it adopts reasoning that, for all practical purposes, would accomplish precisely that result. The dissent states that “[e]ven assuming that there is a fundamental 21 See National Abortion Federation, Threats to Abortion Rights: Biased Counseling/Waiting Period Bills, http://www.prochoice.org/policy/states/biased_counseling.html (last visited Oct. 11, 2013). These materials can include “pictures of fetal development, information about ‘abortion alternatives,’ and information about the risks of abortion.” Id. 22 The Court held that a requirement that the patient give her prior written consent for any surgery is not unconstitutional and saw “no constitutional defect in requiring it only for some types of surgery as, for example, an intracardiac procedure, or where the surgical risk is elevated above a specified mortality level, or, for that matter, for abortion.” Danforth, 428 U.S. at 67. Copyright ©2016 If/When/How. All rights reserved. 21 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 right to terminate pregnancy in some situations,” the state’s compelling interests in maternal health and potential human life “are present throughout pregnancy.” [ ] (emphasis in original). The existence of these compelling interests turns out to be largely unnecessary, however, for the dissent does not think that even one of the numerous abortion regulations at issue imposes a sufficient burden on the “limited” fundamental right… to require heightened scrutiny. (internal citations omitted) Akron, at 420 n.1. Also, consider whether the undue burden standard adopted in Casey is the same standard advocated here and whether the undue burden standard here has the same meaning as it did in the earlier decisions Justice O’Connor cites that had employed undue burden language. *** In Thornburgh v. ACOG, 476 U.S. 747, 759 (1986), the Court reaffirmed Roe and Akron, responding with force to the challenges to Roe coming from state legislatures, stating that “[i]t should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.” Id. at 759 (citing Brown v. Board of Education, 349 U.S. 294, 300 (1955)). The Court distinguished the consent requirement in Danforth from that at issue in Akron and Thornburgh, stressing that the requirement in Danforth simply demanded that “the woman give what is truly a voluntary and informed consent.” Id. at 760 (citing Danforth, 428 U.S. at 67). In contrast, the requirements in Akron and Thornburgh required the delivery of information designed not to inform the woman’s decision but rather “to influence the woman’s informed choice between abortion or childbirth.” Id. (citing Akron, 462 U.S. at 443-444). Neither the state interest in protecting maternal health nor its interest in protecting potential life could justify efforts to “intimidate women into continuing pregnancies,” the Court held. Id. Moreover, the Court remained concerned that these state-imposed information requirements intruded on physician discretion and ignored, or worse, the needs of the patient by causing additional anxiety without actually aiding decision making, which the Court saw as inappropriate and even “cruel” in particular circumstances. Id. at 762-64. However, in 1989, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Court upheld a 1986 Missouri statute, which included (a) a declaration of life beginning at conception; (b) a ban on the use of public funds for counseling patients about abortion options and on public facilities for providing abortions not necessary to save a woman’s life; and (c) a requirement that physicians test for viability of fetuses after 20 weeks gestation. By unanimous vote, the justices declined to address the constitutionality of the public funds provision, accepting Missouri’s contention that it would not prohibit publicly employed healthcare providers from counseling patients about abortion options. See id. at 512. What had changed on the Court? By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to Chief Justice, there were no longer five votes to preserve reproductive choice as a fundamental constitutional right. E. THE SHIFT: CASEY – “UNDUE BURDEN” AND “SUBSTANTIAL OBSTACLE” When the Court issued its decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), many reproductive rights supporters were relieved that the Court had not completely overturned Roe. However, the harm done by Casey was significant. The Court abandoned Roe’s strict scrutiny standard in a plurality opinion issued by Justices O'Connor, Kennedy and Souter. Although the Court said it was not overturning Roe’s central premise that abortion is a fundamental right, the Casey decision adopted a version of the “undue burden” standard that Justice O’Connor had advocated in the 1980s, see supra, opening the door to a host of state and federal restrictions designed to steer women away from abortion and to encourage recognition of fetal personhood throughout pregnancy. 1. Reaffirming Roe In Casey, the Court wrote: It must be stated at the outset and with clarity that Roe's essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability Copyright ©2016 If/When/How. All rights reserved. 22 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each. 505 U.S. at 846. Under this framework of principles, the Casey Court struck down a spousal notice provision, but upheld a mandatory delay and biased counseling provision, indicating for the first time that the state could attempt to “dissuade” women from choosing abortion, as long as the information it gave was “truthful and not misleading.” As a result, mandatory delays and biased counseling laws have proliferated throughout the country. Some aspects of them could be challenged, but lower courts mostly upheld these laws. 2. Defining “Undue Burden” An “undue burden” is a restriction that has the “purpose or effect of placing a substantial obstacle” in the woman’s path toward terminating a pregnancy. Casey, 505 U.S. at 877. In adopting the undue burden analysis, the plurality pointed to previous uses of the term “unduly burdens” in the Court’s abortion cases, admitting that the term had been used inconsistently. Id. at 876. The standard they were adopting to which they “intended to adhere” was defined as follows: A finding of an undue burden is shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends. Id. at 877. But one can also argue, as many defending state restrictions on abortions have, that what the Court considered a substantial obstacle, constituting an undue burden, was very limited. Consider this quote: Numerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. Id. at 874 (emphasis added). 3. Rejecting the Trimester Framework The Casey plurality saw cases like Danforth, Akron, and Thornburgh as going too far and ignoring the state’s interest in potential life23—particularly with respect to the state’s ability to constitutionally provide a woman with information to ensure that her decision is informed. Id. at 871-72. In order to reconcile the state’s ability to ensure the physician obtained the pregnant woman’s “informed consent” with the woman’s right to choose whether to 23 The Court claimed to simply be reemphasizing an interest that Roe itself recognized, an interest to which the Court later gave short shrift. Planned Parenthood v. Casey, 505 U.S. 833, 871 (1992). Copyright ©2016 If/When/How. All rights reserved. 23 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 terminate her pregnancy, the Court felt it had to reject the trimester framework’s “rigid prohibition on all previability regulation aimed at the protection of fetal life.” Id. at 873. This is because, according to the Court, if the government is constitutionally permitted to require the provision of this information post-viability, it does not follow that it should be barred from providing it during the first or second trimesters. Under Roe, almost no regulations would be permitted in the first trimester and only regulations designed to protect the woman's health, but not to further the State's interest in potential life, would be permitted during the second trimester.24 Id. at 872-73. Essentially, the Court was saying that the state had no meaningful way to exercise its interest in potential life under the trimester framework. Thus, “it follows that States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.” Id. at 873. However, the Court refused to issue states a blank check to enact any type of “informed consent” regulations they please. The Court affirmed that such “informed consent” regulations must operate to inform choice, not hinder it. Id. at 877. Again, the Court writes: [E]ven in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term. Id. at 873 (emphasis added). 4. Affirming the Need for a Health Exception The Court upheld the medical emergency provision in the statute, but only by incorporating the Court of Appeals’ broad interpretation of the provision to include serious health conditions that otherwise might not be considered “medical emergencies” under the statutory definition. Id. at 880. The Court thus continued a long line of decisions prohibiting abortion regulations from threatening a woman’s life or health. Id. at 879. In quoting the Third Circuit decision, though, the Court, perhaps unintentionally, injected the word “significant” into the health debate. [The Third Circuit] stated: ‘[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.’ Ibid. Id. at 880. The Court’s introduction of the word “significant” probably created a more burdensome standard for a challenger to meet in order to successfully argue that an abortion restriction does not contain the constitutionally- required exception for the life or health of the pregnant woman. 5. Recognizing Gender Equity Paradoxically, although the Court seriously restricted the right to abortion in Casey, the Court also recognized the necessity of abortion to women’s equality, something Roe had not done. The Casey Court stated: For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, 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. . . . The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed. 24 See id. at 873 (“Measures aimed at ensuring that a woman’s choice contemplates the consequences for the fetus do not necessarily interfere with the right recognized in Roe, although those measures have been found to be inconsistent with the rigid trimester framework announced in that case.”). Copyright ©2016 If/When/How. All rights reserved. 24 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 Id. at 856 (citation omitted)(emphasis added). This recognition of equality has opened up vast scholarly discourse about whether the right to abortion would have been better protected under a gender equality analysis rather than a liberty/privacy one. (See Part III. C. 1. for more discussion). 6. Upholding Stare Decisis The Casey holding shows great deference to the principle of stare decisis, and begins, famously, with the sentence, “[l]iberty finds no refuge in a jurisprudence of doubt,” id. at 844, widely thought to have been penned by Justice Kennedy. Id. at 853. The decision includes a very long section applying principles of stare decisis to decide whether to overrule Roe. In the end, it was this analysis that saved the core of Roe in Casey. As the plurality writes: [T]he reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis. Id. 7. The Aftermath After Casey, restrictions on abortion proliferated. Mandatory delay and biased counseling statutes are now on the books in 26 and 35 states, respectively,25 and parental involvement statutes are on the books in 39 states.26 Advocates did challenge some of these statutes when they did not meet the standards set out in Casey, see, e.g., Summit Medical Ctr. of Ala. v. Riley, 318 F. Supp. 2d 1109, 1113 (M.D. Ala. 2003) (striking statute that required abortion providers to give women information about the probable anatomical and physiological characteristics of the fetus and color photographs of the developing fetus when the woman is diagnosed as carrying a fetus with a lethal anomaly or with an ectopic pregnancy), and tried to hold the line in others to prevent implementation of statutes even more burdensome that those upheld in Casey. See A Woman’s Choice—East Side Women’s Clinic v. Newman, 132 F. Supp. 2d 1150, 1159-60 (S.D. Ind. 2001) (striking requirement that a woman seeking an abortion make two trips to an abortion clinic to obtain an abortion), rev’d, 305 F.3d 684 (7th Cir. 2002). A number of states also passed targeted regulations on abortion providers (“TRAP regulations”), which in some cases were upheld despite not bearing any relationship to the safety of the procedures and despite being so onerous they forced clinics to close. See Greenville Women's Clinic v. Bryant, 222 F.3d 157 (4th Cir. 2000) (upholding regulations and licensure requirements for physicians’ offices and medical clinics performing five or more first trimester abortions per month); but see Tucson Women’s Clinic v. Eden, 379 F.3d 531, 538 (9th Cir. 2004) (holding that requirement that abortion providers submit to warrantless inspections of their offices and provide inspectors access to unredacted medical records is unconstitutional). However, despite the fact that Casey provided less constitutional protection for the right to abortion, some courts began to enjoin TRAP regulations such as hospitalization requirements, parental involvement requirements that did not meet Bellotti standards, and bans on abortions after a specific week in pregnancy that did not leave a determination of “viability” to the doctor. See, e.g., Reproductive Services v. Keating, 35 F. Supp.2d 1332, 1337 (N.D. Okla. 1998) (granting temporary injunctive relief barring enforcement of state statute and regulation requiring that second trimester abortions be performed in hospitals based on Akron and Casey). F. THE SO-CALLED “PARTIAL BIRTH” BANS Beginning in the mid-1990s, anti-abortion advocates began a nationwide campaign to ban something they called “partial-birth abortion.” The campaign was designed to weaken abortion jurisprudence by striking at two of its 25 GUTTMACHER INST., STATE POLICIES IN BRIEF, COUNSELING AND WAITING PERIODS FOR ABORTION 1 (Oct. 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_MWPA.pdf. 26 GUTTMACHER INST., STATE POLICIES IN BRIEF: AN OVERVIEW OF ABORTION LAWS 1 (Oct. 1, 2013), available at http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf. Copyright ©2016 If/When/How. All rights reserved. 25 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 bedrock principles: the viability line and the requirement that abortion restrictions must never put women’s health in jeopardy. To advance its goals, the anti-abortion campaign propagated two medical myths. The first was to claim that the term “partial-birth abortion” referred to a specific medical procedure, whereas this term did not exist before this campaign and has no meaning independent of its definition in related legislation.27 In fact, the term was developed through anti-abortion focus groups as part of a marketing strategy to convince legislators and the general public of the existence and abhorrence of a made-up procedure. The second myth was that “partial-birth abortions” took place at full term or at least “post-viability.” This myth was easily disproved, given that the laws had no gestational limits and used broad language that could apply to abortions performed early in the second trimester. However, the erroneous notions that “partial-birth” abortions take place and are equivalent to “post-viability” abortions still prevail. In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court struck down a Nebraska statute28 that was part of the first wave of state statutes banning so-called “partial-birth abortions.” The Court struck down the law for two reasons. First, it held that the statute was unconstitutional because it would ban dilation and evacuation (D&E)29 abortions, which account for approximately ninety percent of all second-trimester abortions, and not just the “intact D&E” variation as Nebraska claimed. Second, the Court struck down the statute for its failure to contain any provision that would allow physicians to perform the banned procedure(s), including intact D&Es, when necessary to protect the health of women seeking abortions. Id. at 937-38. The Court held that it would require an exception to allow the procedure where evidence was (a) divided on the question of a health threat; and (b) strong in support of there being a health threat. The Court would insist, under these conditions, on a health exception where it was “‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” Id. at 938 (quoting Casey, 505 U.S. at 879). This rule could be thought of as the “tie goes to the woman” rule, or, more formally, that the burden of proof was on the state to prove there was no risk to women’s health. 1. Congress Responds to the Court Dissatisfied with the result in Stenberg, the U.S. Congress, just three years later, enacted its own ban, the Partial- Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201 (“the federal abortion ban” or “the Act”) (codified at 18 U.S.C. § 1531). Rather than enact a law in conformance with Stenberg that used medical terms to define the banned procedures and included a health exception, Congress sought to overturn Stenberg. Congress did change the definition of the banned “partial-birth abortions” slightly but thumbed its nose at the Court by refusing to include any provision for the woman’s health whatsoever. The federal statute prohibited “knowingly perform[ing] a partial-birth abortion,” 18 U.S.C. § 1531(a), which it defined as a procedure, in which the doctor: . . . deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother's] body . . . or, in the case of breech presentation, 27 As Justice Ginsburg explained in dissent, “The term ‘partial-birth abortion’ is neither recognized in the medical literature nor used by physicians who perform second-trimester abortions.” Gonzales v. Carhart, 127 S. Ct. 1610, 1641 n.1 (Ginsburg, J., dissenting). The medical community refers to second trimester surgical abortions as dilation and evacuation (D&E) procedures. See Carhart, 127 S. Ct. at 1621; Stenberg v. Carhart, 530 U.S. 914, 927 (2000). Because statutes banning “partial-birth abortion” did not use terms recognized by physicians and often used descriptions that covered more than one method of abortion, it was difficult, if not impossible, for doctors to know what was proscribed. 28 The statute defined a prohibited “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.” Neb. Rev. Stat. Ann. § 28-328(1) (1999). It further defined “partially delivers vaginally a living unborn child before killing the unborn child” to mean “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.” Id. § 28-326(9). 29 A dilation and evacuation (D&E) abortion is a surgical procedure used starting at approximately 14 weeks in pregnancy. Forceps and suction devices are used to remove the fetus and tissue from the uterus, and fetal disarticulation usually, but not always, occurs. Most physicians attempt to remove the fetus as intact as possible, in order to reduce the risk of perforation or infection of the uterus. An “intact D&E” is a variant of the procedure in which doctors attempt to remove the fetus completely intact. Copyright ©2016 If/When/How. All rights reserved. 26 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 any part of the fetal trunk past the navel is outside the [mother's] body . . . for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus . . . and . . . performs the overt act, other than completion of delivery, that kills the fetus. 18 U.S.C. § 1531(b)(1). Congress also made numerous findings in the Act that directly criticized factual findings of numerous federal district courts, as well as findings that were factually inaccurate. Congress’s intention was clear: they wanted a total ban with no exceptions. The Act’s chief Senate sponsor, former Senator Rick Santorum, directed his comments to the Court: “I hope the Justices read this record because I am talking to you. . . . [T]here is no reason for a health exception.” 149 Cong. Rec. S3456, S3486 (daily ed. Mar. 11, 2003). In the Act, Congress demanded that the Court defer to Congress’s findings, namely, that “partial-birth abortion is never necessary to preserve the health of a woman” and actually “poses significant health risks.” See the Act §§ 2(5)- (7), Appendix to Petitioners’ Brief 2a-3a. 2. The Court Responds to Congress In 2007, when a newly constituted Court30 considered the constitutionality of the federal ban in Gonzales v. Carhart, 550 U.S. 124 (2007) (Carhart II), the course of abortion jurisprudence changed abruptly. The Court held 5-4, with the four Justices remaining from the Stenberg majority now in dissent, that, unlike the Nebraska law, the federal ban could be interpreted as a ban on “intact D&E” that it claimed would leave “most” non-intact D&Es unrestricted. It held that the law did not, therefore, pose a “substantial obstacle” to women seeking second trimester abortions. Carhart, 550 U.S. at 148-150.31 The opinion, authored by Justice Kennedy, ignored the findings of the two district courts before it—and the numerous district courts in previous opinions—which found that intact D&E procedures were significantly safer than non-intact procedures, and upheld the ban despite its lack of a health exception. Id. at 162-64. In the process, the Court overruled the Stenberg “tie goes to the woman” rule. Now, a tie goes to the State; the burden falls to the woman to prove harm to her health. 3. Causes for Concern: No Health Exception and a Pre-Viability Ban Upheld Significantly, Carhart II blurs the line between pre- and post-viability abortion restrictions; for the first time, the Court upholds a statute with no “health” exception; and recognizes interests other than the life of the fetus and the life and/or health of the woman, namely, the interest of not undermining the public’s perception of the appropriate role of physicians and upholding the distinction between abortion and infanticide. After beginning with a lengthy and detailed description of the procedure, the opinion repeatedly used loaded terms, such as “infant life” and “child assuming the human form” to describe the fetus 32 and “abortion doctor” to describe the physician. See, e.g., Carhart, 550 U.S. at 158-60. This divisive language, coupled with the Court’s discussion about the government’s ability to “use its voice and its regulatory authority to show its profound respect for the life within the woman,” id. at 157, caused great concern and offense to abortion rights supporters. In her dissent, Justice Ginsburg aptly identifies what is problematic about the Court’s rhetoric, noting that, because of the Court’s use of the pejorative label “abortion doctor” and by calling a fetus an “unborn child” and “baby,” their “hostility to the right Roe and Casey secured is not concealed.” Id. at 186. Additional causes for concern include the Court’s statement that it was “assum[ing]” long-standing principles of abortion jurisprudence “for the purposes of this opinion,” rather than reaffirming them. Id. at 146. This seems designed to undermine those very principles and create a sense of 30 Justice Samuel Alito replaced Justice Sandra Day O’Connor, moving the Court further to the right. Chief Justice John Roberts had also replaced Chief Justice William Rehnquist, but this is considered a wash, given that their votes in abortion cases were likely to be the same. 31 The Court also held that the Act was not unconstitutionally vague. Id. 32 Cf. Roe, 410 U.S. at 156-160 (1973) (declining to adopt one theory of life and recognizing the importance of the judiciary showing respect for the “wide divergence of thinking on this most sensitive and difficult question”). Copyright ©2016 If/When/How. All rights reserved. 27 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 temporariness. Others have pointed to the Court’s deference to Congress’ fact finding in Carhart II as worrisome.33 Interestingly, the Court claimed it was not deferring to congressional findings, stating that “[u]ncritical deference to Congress’ factual findings in these cases is inappropriate.” Id. at 166. However, that is precisely what the Court did. See, e.g., id. at 158 (stating that “Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant’”) (citation omitted). Further, the majority opinion in Carhart II seems to accept the great anti-abortion myth that abortion harms women34 by causing “severe depression and loss of esteem,” id. at 1634, in the face of the many studies examining these claims and rejecting them outright.35 The Court claimed that, although it found no reliable data on the phenomenon, “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Id. at 159. The Court then applied its theory of post-abortion “regret” to the procedure itself, stating: It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. Id. The Court has been soundly criticized for its justification of the federal ban of a procedure, rather than perhaps defending a statute requiring information be offered to the woman, on the basis that women do not receive enough information about the procedure.36 While there is much to be disturbed by in the opinion,37 such as the Court’s burden-shifting, its disregard of the factual records in the cases before it, and its cramped interpretation of the statute’s breadth, the opinion can also be read as limited to the facts and leaving much of the Casey framework unscathed.38 For example, it can be argued that the health requirement is alive and well — the problem in Carhart II being that the Court simply did not believe the evidence establishing harm to the woman. Similarly, it can be argued that the Court still protects second- trimester abortions, and the interpretation of the statute to preserve the legality of non-intact D&Es was evidence of the Court’s support for that protection. This is a hard pill to swallow given the loss of a medical procedure that is the safest and most likely to preserve a woman’s health, not to mention her future fertility. Still, it may behoove abortion rights advocates to take this highly reasonable position to limit the impact of the decision. 33 See, e.g., Caitlin Borgmann, Rethinking Judicial Deference to Legislative Factfinding, 84 Ind. L.J. 1 (2009) (arguing that courts should independently review legislative factfinding when the legislation at issue curtails constitutionally-protected individual rights because legislatures have done a poor job of factfinding, particularly in the case of laws that restrict personal liberties, and that judicial factfinding yields a superior factual record); Pam Karlan, The Law of Small Numbers: Gonzales v. Carhart, Parents Involved in Community Schools, and Some Themes From the First Full Term of the Roberts Court, 86 N. C. L. Rev. 1369, 1383 n.96 (2008) (noting that the Court upheld the Partial Birth Abortion Ban despite acknowledging that “some recitations in the Act are factually incorrect” (citing Carhart, 127 S. Ct. at 1637-38)); Judith Resnik, Courts and Democracy: The Production and Reproduction of Constitutional Conflict in THE COURTS AND SOCIAL POLICY IN THE UNITED STATES (Oxford: Foundation for Law, Justice and Society) (2008); David L. Faigman, CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL FACTS (Oxford University Press) (2008). 34 For a discussion of the woman-protective, anti-abortion campaign, see generally Reva Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991 (“New Politics”). 35 See Carhart, 127 S. Ct. at 1648 & n.7 (stating that “neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman's long-term mental health than delivering and parenting a child that she did not intend to have . . .” (Ginsburg, J., dissenting) (internal citation omitted). 36 Compare Carhart, 127 S. Ct. at 1633-34 (stating the ban “furthers the Government’s objectives” because there is a “lack of information concerning the way the fetus will be killed”) with id. at 1648-49 (“The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. . . . Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.”) (Ginsburg, J., dissenting). 37 See, e.g., Priscilla J. Smith, “A Restrained View,” Balkinization (April 26, 2007) (“Restrained”); Priscilla J. Smith, “More or Less Restraint,” Balkinization (May 9, 2007), both available at http://balkin.blogspot.com/search?q=priscilla+Smith+and+carhart; see also Michael Dorf, “Gonzales v. Carhart and Vasectomies,” Dorf on Law (May 6, 2007); see generally Commentary on Balkinization by Jack Balkin, Marty Lederman, Andrew Koppelman, and Mark Graber (Oct. 3, 2008), available at http://balkin.blogspot.com/search?q=Carhart. 38 See Priscilla Smith, Is the Glass Half-Full?: Gonzales v. Carhart and the Future of Abortion Jurisprudence, 2 Harv. L. & Pol’y Rev. (Online) (2008), available at http://www.hlpronline.com/. Copyright ©2016 If/When/How. All rights reserved. 28 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 4. Reassurances Despite the dangerous aspects of the Carhart II opinion, strong arguments can be made that it eliminates neither the core decision-making aspect of the right to abortion, nor the rule that a State may not restrict access to abortions that are “necessary, in appropriate medical judgment, for preservation of the life or health of the mother.”39 Roe, 410 U.S. at 164-65. One could also argue that Carhart II’s language approving a statute with the purpose of preventing women from regretting their abortions is unique, limited to these facts alone, where the Court presumes, women would discover only after the fact that they had had an abortion by intact D&E. At the least, the state interest cannot serve to justify bans on abortions for which there are no “substitute[s].” Carhart, 550 U.S. at 158. Two appellate decisions post-Carhart II support a limited view of the decision and suggest the feasibility of constitutional protections for pre-viability abortions. First, the Fourth and Sixth Circuits carefully applied the Carhart II Court’s limited interpretation of the federal statute to a subset of intact D&Es, those that physicians intended to perform at the outset of the procedure. See Richmond Med. Ctr. v. Herring, 527 F.3d 128, 131 (4th Cir. 2008); Northland Family Planning v. Cox, 487 F.3d 323 (6th Cir. 2007). The Fourth Circuit, for example, noted that it was critical to the Court’s holding in Carhart that criminal liability does not attach where “a doctor . . . sets out to perform a standard D & E that by accident becomes an intact D&E.” Herring, 527 F.3d at 131. And, in Northland Family Planning v. Cox, the Sixth Circuit struck down a Michigan statute which applied “when ‘any anatomical part’ of the fetus passes the vaginal introitus,” calling the statute “sweeping” and “burdensome” 487 F.3d at 336. The court there held that “Gonzales [Carhart II] left undisturbed the holding from Stenberg [Carhart I] that a prohibition on D&E amounts to an undue burden on a woman's right to terminate her pregnancy.” Id. Second, the Fourth Circuit agreed that the Carhart II Court did not scrap the health requirement entirely; rather, the failure of the plaintiffs’ health claim was based on a failure of proof. As the Fourth Circuit pointed out, the Court viewed the issue as a “contested factual question,” holding that “‘[t]he [Federal] Act is not invalid on its face [because] there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health.’” Herring, 527 F.3d at 136 (citing Carhart, 550 U.S. at 166).40 5. Prompts and Provocations In Carhart II, Justice Ginsburg delivers a persuasive dissent with three other Justices joining, where she bemoans the decision and describes the abortion right as central to notions of autonomy and equality: [L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature. 550 U.S. at 172. Other scholars have made similar claims that the abortion right should have been couched in terms of equality rather than privacy.41 For example, Professor Reva Siegel argues that an equality analysis is the appropriate vehicle to challenge “woman-protective” abortion restrictions.42 Professor Siegel asserts that even if the Supreme Court were to overturn Roe v. Wade, an abortion ban such as the one in the South Dakota, H.B. 1215 (2006) (later repealed by a voter referendum),43 would still be unconstitutional as a violation of equal protection, because 39 The holding dictated by Justice Kennedy in Carhart II that does not protect what he considers “marginal” threats to health does not eliminate the rule that the woman’s health must be the physician’s paramount consideration. In Justice Kennedy’s view, the health rule never protected what he called in the past “marginal” threats to health. See Stenberg v. Carhart, 530 U.S. 914, 967 (2000) (“[w]here the difference in physical safety is, at best, marginal, the State may take into account the grave moral issues presented by a new abortion method.”) (Kennedy, J., dissenting). However, it does mean that if Justice Kennedy remains the deciding vote, plaintiffs will have to prove that regulations impose significant health differences. 40 Cf. Northland Family Planning v. Cox, 487 F.3d 323, 336 (6th Cir. 2007) (avoiding the health issue because “[t]he bottom line is that the life and health exceptions are exceptions to an unconstitutional and un-fixable general prohibition on certain abortion procedures. That is to say it is unnecessary for us to address exceptions to an unconstitutional and unenforceable general rule.”) 41 For more on the gender equality analysis of reproductive rights, see infra section III.C. 42 Reva B. Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991 (2007)(hereinafter “New Politics of Abortion”). 43 See South Dakota Rejects Abortion Ban, BBC News (Nov. 8, 2006), available at http://news.bbc.co.uk/2/hi/americas/6127430.stm. Copyright ©2016 If/When/How. All rights reserved. 29 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 the ban reflected and enforced many gender-based stereotypes held to be impermissible gender-based classifications in analogous cases.44 G. CASES FOLLOWING GONZALES V. CARHART (CARHART II) While Roe’s trimester framework created clarity, Casey unsettled that framework by removing the bright lines that Roe created and by introducing the “undue burden” standard. And Carhart II further muddled that framework by approving legislation that prohibited a particular method of abortion, pre-viability, and did not include an exception for the mother’s health. The chart below shows the evolution of abortion jurisprudence from Roe to Carhart II: Case Conception à First Trimester à Viability à Birth Exceptions for State action: Mother’s Mother’s Health Roe State action: Nothing mother’s heath & health & unborn life State Action: No undue burden (purpose or effect of placing a substantial obstacle in the path of a Can prohibit with exceptions for Casey woman seeking an abortion of a nonviable fetus) mother’s heath & life but can further interest in fetus & mother’s health Gonzales v. No exception for Carhart Prohibit intact D&E pre-viability mother’s health In the wake of Carhart II, various areas of abortion jurisprudence remain unsettled. Recent courts of appeals decisions concerning abortion have addressed three such areas: (1) particular method bans; (2) recognized new state interests in restricting abortion; and (3) the health of the mother. 1. Method Bans In Planned Parenthood Southwest Ohio Region v. DeWine, 696 F.3d 490 (6th Cir. 2012), the Sixth Circuit upheld a state restriction on medication abortions, specifically prohibiting the off-label use of mifepristone (commonly known as RU 486) and limiting it only to approved FDA protocol. This legislation restricts medication abortions to 49-days after a woman’s last menstrual period (LMP) instead of the 63-day period deemed safe by studies subsequent to FDA approval. It also forces physicians to prescribe the exact dosage amounts and schedule approved by the FDA, although subsequent studies found that smaller amounts of mifespristone are effective. The practical effect of Ohio’s legislation is to ban a procedure pre-viability. While the Sixth Circuit found that the restriction did not impose an undue burden, the opinion suggests that this Circuit considers pre-viability bans constitutional. In 2013, in the case Cline v. Oklahoma Coalition for Reproductive Justice, 2012 OK 102 (Okla. 2012), cert. granted, 013 U.S. LEXIS 4942 (U.S. Jun. 27, 2013). The Supreme Court certified two questions to the Oklahoma Supreme Court regarding the scope of a similar Oklahoma law regarding medication abortion, namely, whether it bans the use of misoprostol and whether it forbids the use of drugs to treat ectopic pregnancies.45 Whether the Supreme Court will hear oral arguments remains to be seen. 2. New State Interests In 2012, Arizona banned almost all abortions after 20 weeks, but required pregnancy to be measured from last menstrual period (LMP) rather than from fertilization. The law’s only exceptions were the woman’s immediate death Siegel, New Politics of Abortion, at 992-94. 44 Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of 45 misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies. Copyright ©2016 If/When/How. All rights reserved. 30 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 and organ failure. In Isaacson v. Horne 884 F. Supp.2d 961 (D. Ariz. 2012), the district court for Arizona held that the ban was constitutional under the Fourteenth Amendment and denied declaratory or injunctive relief to the plaintiff physicians challenging the law. Additionally, the district court’s opinion recognized a new government interest: fetal pain. See id. at 971. Arizona’s legislative findings concluded that an “unborn child” has the ability to feel pain at 20 weeks gestational age, which the district court accepted as a legitimate government interest in limiting abortions past 20 weeks. If this interest were to gain wider recognition, the right to an abortion could be made subject to the woman’s interests, and the state’s interests, as well as the fetus’s interests. Fortunately, the Ninth Circuit reversed, finding that the law is clearly unconstitutional, because it bans abortions pre-viability,46 which never occurs at or before 20 weeks LMP. Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013). 3. Health of the Mother Under Casey, the woman’s health is a recognized state interest from the outset of pregnancy, but restrictions on abortions must include exceptions for the health of the woman.47 See Casey, 505 U.S. at 846. However, this so-called state interest in women’s health is now leading to various obstacles to abortion access. In Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 686 F.3d 889 (8th Cir. 2012) the Eighth Circuit sitting en banc reversed the district court’s ruling against South Dakota’s state-mandated and medically inaccurate information linking abortion to suicide,48 as part of the state’s informed consent law. The Eight Circuit found that the information was neither misleading nor irrelevant and, therefore, constitutional; the Court states that “it is typical medical practice to inform patients of statistically significant risks that have been associated with a procedure through medical research even if causation has not been proven definitively.” Id. at 905 (emphasis added). Thus, in South Dakota, the state’s interest in the woman’s health has resulted in physicians being forced to provide erroneous information about suicide risk to women seeking an abortion. Other states have attempted to narrow the definition of the women’s health to preclude mental health or physical conditions not considered “life altering” in direct opposition to Stenberg.49 H. THE CONTRACEPTION MANDATE: THE AFFORDABLE CARE ACT & CONTRACEPTIVE COVERAGE On March 23, 2013, President Obama signed the Patient Protection and Affordable Care Act (ACA).50 Among other things, the ACA extends federal oversight of private health insurance; implements consumer protections; creates state marketplaces where individuals and employers can purchase affordable, quality health insurance; requires 46 See Casey, 505 U.S. at 837: “regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” 47 For a definition of health, see Doe v. Bolton, 410 U.S. 179 (1973): This being so, the Court concluded that the term ‘health’ presented no problem of vagueness. ‘Indeed, where a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.’ This conclusion is equally applicable here. Whether, in the words of the Georgia statute, ‘an abortion is necessary’ is a professional judgment that the Georgia physician will be called upon to make routinely. Id. at 192 (internal citations omitted). 48 See Susan A. Cohen, Abortion and Mental Health: Myths and Realities, Guttmacher Inst. (Summer 2006), available at http://www.guttmacher.org/pubs/gpr/09/3/gpr090308.html. 49 See Linda J. Wharton et. al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 Yale J.L. & Feminism 317, 376-77 (2006): Despite these outlier cases, however, since Stenberg clarified that procedure bans that sweep too broadly or lack an explicit health exception are unconstitutional under Casey, courts have almost uniformly struck down state abortion procedure bans. Interestingly, these cases do not generally turn on or even undertake a purpose analysis, even when the challenged statute was enacted post-Stenberg seemingly in outright defiance of the holding of that case. These decisions, often per curiam, respond to the clear guidance provided by Stenberg's per se rule that the lack of an explicit health exception renders an abortion procedure ban unconstitutional, and sometimes also undertake an undue burden analysis that focuses on the unconstitutional effect that a ban on most second-trimester abortion methods would have on women's access to abortion. The consistency achieved in this body of case law is due to the clarity of the Stenberg majority opinion. 50 Pub. Law No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. Law No. 111- 152, 124 Stat. 1029 (2010) (amending §5000A of the Internal Revenue Code of 1986) (hereinafter “ACA”). Copyright ©2016 If/When/How. All rights reserved. 31 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 most individuals to have a source of health insurance (“individual mandate”); and expands Medicaid coverage for low-income individuals.51 On June 28, 2012, the Supreme Court upheld the law as constitutional in National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012).52 Health insurance coverage in the United States comes primarily from three sources: private insurance offered through employers (“group plans”);53 private insurance purchased by individuals (“individual plans”); and public programs, predominantly Medicare and Medicaid. While the federal government has always regulated Medicare, Medicaid, and other federal programs, federal oversight of private insurance has historically been limited. The ACA contains multiple provisions that now (or beginning in 2014) regulate the content and quality of private “non- grandfathered”54 group and individual insurance plans. Implementation of the ACA has occurred piecemeal, with some reforms already in effect and others slated to go into effect on or before January 1, 2014. The ACA added Section 2713 to the Public Health Services Act, requiring non-grandfathered health insurance plans to cover a broad array of evidence-based preventive health services without cost-sharing.55 To ensure that women’s unique preventive health needs are addressed, the ACA required the Health Resources and Services Administration (HRSA) to develop guidelines that articulate the specific women’s health benefits to be included in the coverage requirement.56 HRSA commissioned the Institute of Medicine (IOM) to provide evidence-based recommendations, and in July 2011, the IOM recommended the inclusion of eight women’s preventive health benefits, including coverage of all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.57 HRSA adopted the IOM’s recommendations and issued guidelines requiring all non-exempted, non-grandfathered health insurances plans to cover contraception for plan years beginning on or after August 1, 2012.58 Because this date coincides with the beginning of the academic year, college, graduate, and professional students with college or university health insurance were some of the first women to access contraceptive coverage without cost-sharing. 1. Exemptions for Religious Organizations The “contraceptive coverage mandate,” as these services are known, is a source of continuing litigation to date. In February 2012, the Department of Health and Human Services (HHS), the Department of Labor, and the Treasury (the Departments) issued a rule exempting certain religious employers from the contraceptive coverage requirement if they meet all four prongs of the following test: (1) The organization’s purpose is the inculcation of religious values. (2) The organization primarily employs people who share its religious tenets. (3) The organization primarily serves people who share religious tenets. (4) The organization is a non-profit church, church auxiliary, association or convention of churches, or religious order.59 51 See 42 U.S.C. § 300gg-13. 52 The Court held that the Anti-Injunction Act did not bar the Court’s review of the individual mandate, and that under its taxation power, but not under the Commerce Clause, Congress could require individuals to buy health insurance or pay a penalty. Additionally, the Court held that the ACA’s adult Medicaid expansion was unduly coercive on states, but fully remedied the coercion by precluding the Federal government from terminating existing federal funding to a state that fails to implement this part of the law. 53 Further, employer health insurance plans are either “self-funded” or “fully-insured,” depending on whether the employer pays the costs of its employees’ health care itself or contracts with an insurance provider and pays a monthly premium. 54 Grandfathered plans are plans that existed on March 23, 2010 and have not substantially changed. A plan loses its grandfathered status if it: significantly cuts or reduces benefits; raises charges associated with co-insurance, co-payments or deductibles beyond permissible amounts; lowers employer contributions by more than 5 percent; or adds or decreases annual limits on what the insurer will pay. 45 C.F.R. § 147.140. 55 The term “cost-sharing” includes copays, coinsurance and deductibles, but does not include premiums. 56 42 U.S.C. § 300gg-13(a)(4) (ACA § 1001, adding § 2713 of the Public Health Services Act). 57 Inst. Of Med. (“IOM”), Clinical Preventive Services For Women: Closing The Gaps at 168 (Prepublication Ed.) (2011). 58 U.S. Dep’t Of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/. 59 Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012) (codified at 45 C.F.R. 147 (a)(1)(iv)(B)). Note that a subsequent rule was issued on July 2, 2013, making changes to this definition. See Coverage of Certain Preventive Services under the Affordable Care Act, 78 Fed. Reg. 8456 (proposed Feb. 6, 2013) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pts. 147, 148, 156). Copyright ©2016 If/When/How. All rights reserved. 32 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 The exemption applies primarily to churches and other “houses of worship” and does not extend to most religiously- affiliated colleges, universities, or social organizations. Then, in February 2012, the HHS announced the creation of a temporary yearlong enforcement safe harbor for non-exempt, non-grandfathered plans provided by non-profit organizations with religious objections to contraceptives. In order to take advance of the temporary safe harbor, an organization must: (1) be organized and operate as a nonprofit entity; (2) not have provided contraceptive coverage because of the organization’s religious beliefs from February 10, 2012, onward; (3) provide notice to its participants that the organization’s health plan will not provide contraceptive coverage for plans beginning on August 1, 2012, or later; and (4) self-certify that it meets (1)-(3) and document its self-certification.60 The temporary safe harbor expired on August 1, 2013. In March 2012, the Departments announced their intent to develop regulations that offer an “accommodation” to some nonprofit religiously-affiliated employers and universities that object to contraceptive coverage and do not qualify for the exemption, while also ensuring that women receive the required coverage.61 Nearly a year later, in February 2013, the Departments issued a Notice of Proposed Rulemaking (NPRM) seeking to implement the accommodation.62 As proposed, the accommodation will provide enrollees (employees or students and their dependents) with separate contraceptive coverage without cost-sharing directly from a third party insurer, but without the involvement of the religiously-affiliated non-profit organization (employer or university).63 On July 2, 2013, HHS issued the final rule, including religious exemptions, to be effective August 1.64 The final rule, while not substantially changing the March 2012 rule, proposes to “simplify and clarify the definition of religious employer by eliminating the first three prongs and clarifying the fourth prong of the definition” and lays out the mechanism by which accommodation will be achieved for nonprofit religious and church-affiliated institutions that object to the coverage mandate but do not qualify under the exemption.65 2. Student Health Insurance Under the HHS final rule, student health insurance is covered by the ACA. Id. at 8467. Health insurance issuers contract with colleges and universities to provide the majority of student health plans. Id. In January 2013, HHS also proposed an accommodation for religious colleges or universities similar to the proposed accommodation for nonprofit religious organizations with religious objections to contraceptive coverage. Id. at 8461. The proposed accommodation would allow religiously affiliated colleges and universities to self-certify that they are (a) religious institutions of higher education and (b) that they have religious objections to contraceptive coverage. The health insurance issuer would then provide contraceptive coverage directly to students. This mechanism for accommodation was confirmed in the final rule. 60 Ctr. for Consumer Info. and Ins. Oversight and Cts. for Medicare & Medicaid Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code 3-4 (Aug. 15, 2012) (updating earlier guidance issued on Feb. 10, 2012). 61 Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16501-01 (advance notice of proposed rulemaking Mar. 21, 2012). 62 Coverage of Certain Preventive Services under the Affordable Care Act, 78 Fed. Reg. 8456 (proposed Feb. 6, 2013) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pts. 147, 148, 156). 63 Id. 64 Coverage of Certain Preventive Services under the Affordable Care Act, 78 Fed. Reg. 8456 (finalized Jul. 2, 2013) (codified as 45 C.F.R. pts. 147 and 156). 65 Id. Copyright ©2016 If/When/How. All rights reserved. 33 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 3. “Conscience-based” Challenges to Contraception Coverage Since the passage of the ACA, numerous organizations that are not exempt from the contraceptive coverage mandate, because they do not meet the definition of a “house of worship,” have objected to the requirement that group health plans and health insurance issuers cover all FDA-approved methods of contraception without cost- sharing. The litigants fall into three broad categories: (1) religiously affiliated organizations (e.g., Catholic hospitals) that object to all contraceptive coverage; (2) religious organizations that object to coverage of emergency contraception; and (3) for-profit businesses owned by people with religious objections to contraception coverage. These challengers claim that the contraception mandate violates the First Amendment and the Religious Freedom Restoration Act of 1993.66 To date, over 70 suits have been filed; parties and the courts largely focus on the RFRA claims. a. Religious Freedom Restoration Act (RFRA) In 1993, Congress passed RFRA in response to the Supreme Court’s decision in Employment Division, Dept Human Resources Oregon v. Smith, 494 U.S. 872 (1990).67 RFRA states that the “Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the government can demonstrate “that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” See 42 U.S.C. § 2000bb- 1(a)-(b). RFRA only applies to the federal government. See City of Boerne v. Flores, 521 U.S. 507 (1997). To succeed on a RFRA violation claim, a plaintiff must prove a substantial burden on the person’s exercise of religion. When considering the substantial burden prong in the contraception mandate cases, thus far courts have differed on the showing required of plaintiffs. Some courts have assumed that the burden is substantial because the subject is religion. See Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012). Other courts have focused on whether the organization’s insurance plan is provided through an insurer or is self-funded. See O'Brien v. United States HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) and Tyndale House Publrs, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012). If the plaintiff can demonstrate a substantial burden, then the government must show a compelling government interest justifying the burden and that it used the least restrictive means available to serve its interests.68 b. The Contraception Mandate Cases In Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. Dec. 2012), Wheaton College and Belmont Abbey College claimed that the contraception coverage requirement violated RFRA, the First Amendment, and the Administrative Procedures Act. In a per curium opinion, the Court of Appeals for the District of Columbia Circuit held that the challenges were not ripe for review in light of the government’s assurances during oral arguments that “There will…be a different rule for entities like the appellants.” See Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. Dec. 2012). As of October 1, 2013, a handful of federal courts of appeal have issued decisions on whether the contraceptive rule under the ACA should be preliminarily blocked. Two of these courts sided with the government, affirming the district court decisions to deny the preliminary injunction against the contraception mandate. See Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013); petition for cert. filed (U.S. Sept. 19, 2013) (No. 13-356) (hereinafter Constoga); Autocam Corp. v. Sebelius, No. 12-2673, 2013 U.S. App. LEXIS 19152 (6th Cir. Sept. 17, 2013) 66 The Religious Freedom Restoration Act states “In general, Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” See 42 U.S.C.A. § 2000bb-1 (West). The Supreme Court held RFRA unconstitutional as applied to the states. See City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997). 67 In Smith, the Court upheld a generally applicable law under rational basis review because the state had a legitimate reason to enact the law and regulating religion was not the law’s focus. Id. 68 See 25 No. 1 Cal. Ins. L. & Reg. Rep. 1 for unsuccessful First Amendment claims. Copyright ©2016 If/When/How. All rights reserved. 34 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 (hereinafter Autocam). The Third Circuit held, among other things, that corporations may not raise free exercise claims under RFRA. Conestoga, at 408-410. The Sixth Circuit adopted a slightly different analysis to reach the same result, holding that a for-profit corporation is “not a ‘person’ capable of “religious exercise” as intended by RFRA.” Autocam, at *22-24. On the other hand, in Korte v. Sebelius, 2012 U.S. App. LEXIS 26734 (7th Cir. Dec. 28, 2012) the Seventh Circuit granted the plaintiffs’ motion for a preliminary injunction against the enforcement of the contraception coverage requirement. The Kortes own and operate a construction company and alleged that the requirement to provide contraception coverage violates RFRA, the First Amendment’s Free Exercise, Establishment, and Speech Clauses, the Fifth Amendment’s Due Process Clause, and the Administrative Procedure Act. The divided panel found that the plaintiffs “established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise.” Id. Recognizing that Justice Sotomayor denied Hobby Lobby’s request for the same preliminary injunction, the panel distinguished between the standard required for the Supreme Court to issue a writ and the “standard applicable to a motion for a stay or injunction pending appeal in this court.” Id. The case is ongoing. In Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012), Hobby Lobby Stores, Inc, and Mardel, Inc, for-profit companies, filed suit claiming that the contraception coverage requirement violated the Free Exercise Clause of the First Amendment and RFRA. Specifically, they alleged that they will be required to provide coverage for “drugs and devices that [they] believe can cause abortions.” Id. at 642. The District Court for the Western District of Oklahoma, the Court of Appeals for the Tenth Circuit, and Justice Sotomayor denied their motion for a preliminary injunction. Id. at 643. The case later made its way up to the Tenth Circuit. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), the Court reversed and remanded the district court’s decision denying the motion for preliminary injunction. The Tenth Circuit also concluded that a for-profit corporation can raise RFRA free exercise claims. See id. at 1133-37. On remand, the district court found that the “threatened injury to the corporations if the injunction does not issue outweighs the potential harm to the government” and that there was an “overriding public interest in the resolution of the legal issues raised by the mandate before [appellants] are exposed to the substantial penalties that are potentially applicable. The public interest therefore lies in preserving the status quo until the issues raised by plaintiffs’ claims are resolved,” thereby granting the injunction against the ACA’s contraception mandate. Hobby Lobby Stores, Inc. v. Sebelius, 2013 U.S. Dist. LEXIS 107248 (W.D. Okla. July 19, 2013). The U.S. government has filed a petition for certiorari to the Supreme Court seeking to appeal the Tenth Circuit’s holding that a for-profit corporation can raise RFRA free exercise claims. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013), petition for cert. filed (U.S. Sept. 19, 2013) (No. 13-354). I. DISCUSSION QUESTIONS • How does the way in which the court frames the interests at stake affect the outcome of the case? • Doesit strengthen or weaken the right to abortion generally to emphasize the right of the physician to practice her chosen profession and maintain a confidential physician-patient relationship? • What are the non-legal (e.g., social, political) factors that might influence the outcome of a case? • What are the doctrinally significant differences between strict scrutiny, as it applies to fundamental rights such as the right to abortion recognized in Roe, and the undue burden standard announced in Casey? • Why is it important that courts allow facial challenges, rather than as-applied challenges, to abortion restrictions? Copyright ©2016 If/When/How. All rights reserved. 35 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 • What are the possible effects of a Supreme Court decision recognizing new state interests? • In your opinion, what is the strongest constitutional basis for contraception? For abortion? For procreation? For access to contraception and abortion? • Do you think the opponents to the contraception mandate have constitutionally valid arguments? Should employers’ religious beliefs direct employer-provided health care coverage? • What impact could the contraception mandate cases have on abortion jurisprudence if the Court finds that the provision of contraception under an employee health plan indeed violates an employer’s conscience due to his belief about abortion? III. MAJOR DEBATES ABOUT CONSTITUTIONAL PROTECTIONS FOR REPRODUCTIVE RIGHTS, PARTICULARLY THE RIGHT TO ABORTION This section focuses on common critiques of constitutional protections for abortion—not because abortion is the only or even the most important reproductive rights issue – but because it is often the primary target of most legal argument and political debate. We divide the major debates about constitutional protections for abortion into three categories: (1) The “leave it to the legislature” argument; (2) the “fetus is a person and abortion is murder” argument; and (3) the “abortion right should have been based in equality analysis” argument. First, there are those who claim to oppose constitutional protections for the right to abortion because, they argue, the judiciary is the wrong authority for protection of the right to abortion and that the issue is more appropriately left to the legislative arena. These critics claim to be focused on the proper theoretical foundations of the right and may or may not actually oppose some form of legal access to abortion. A subset of this group argues that the Roe decision—and constitutional protections for abortion generally—are bad for the Left and for public support of abortion because of the controversial nature of the issue. These critics have essentially referred to abortion as the gift that keeps on giving . . . to the Republicans.69 Second, there are those who believe that abortion is murder, that the fertilized egg, embryo or fetus is a living human being who should be protected by the constitutional right to life. Many of those in the second group support their argument in part by reference to the arguments made by those in the first group. Third, there are those who believe that the Constitution provides protections for abortion but argue that there are alternative sources of the right than the liberty/privacy foundation identified in Roe. Specifically, some of these scholars offer arguments from an equality standpoint that challenge justifications for restrictions on abortion that are themselves based on the notion that abortion harms women, a notion the Court mentioned with approval in Gonzales v. Carhart. These arguments and some responses are fleshed out below. A. OPPOSITION TO CONSTITUTIONAL PROTECTION FOR THE RIGHT TO ABORTION Those who oppose constitutional protections for the right to abortion place Roe v. Wade at the center of a much larger discussion about how to resolve what has been called the “dilemma” of Madisonian Democracy.70 A Madisonian or constitutional democracy, like the United States, is not purely democratic in the sense that it is not completely ruled by the views of the majority, but rather, holds certain principles, such as those set forth in its Constitution, above all. Early in the Supreme Court’s history, it held in Marbury v. Madison, 5 U.S. 137, 177-78 (1803), a case seen as providing the basis for judicial review, that it was “the province and duty of the judicial department to say what the law is,” and that “the constitution [rather than an ordinary act of the legislature] must govern the case to which they 69 See, e.g., Jeffrey Rosen, Worst Choice, New Republic (Feb. 24, 2003) (arguing that “[a]fter three decades, it has become more obvious than ever that Bickel was correct and that the costs of retaining Roe outweigh any benefits. For better or for worse, Roe will not be overturned any time soon. But, if it were, the Democrats, the federal judiciary, and the moderate majority of American people could breathe a sigh of relief.”). 70 See, e.g., Paul Brest, The Fundamental Rights Controversy: the Essential Contradictions of Normative Constitutional Scholarship, 90 Yale L. J. 1063, 1096 (1981). Copyright ©2016 If/When/How. All rights reserved. 36 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 both apply.” Accordingly, even ultra-conservative scholars like Robert Bork acknowledge that our democracy was designed so that there are some areas of life are protected from the “tyranny of the majority.”71 But of course this does not end the inquiry. The questions that remain include: 1) which areas of life are protected by the Constitution from majority rule; and 2) when does the judiciary have the authority to strike down statutes or other expressions of the “people’s will,” such as ballot measures or actions of a duly-elected President? Providing the protective wall against majority rule is, by definition, unpopular, and criticisms of the Court’s decision in Roe, as in many other controversial areas, are often framed in terms of these larger questions of constitutional theory and counter-majoritarianism. Indeed, whenever the Court overrides a political majority, as it did in 2003 in striking down the Texas law criminalizing gay sex in Lawrence v. Texas, 539 U.S. 558 (2003), opponents of the ruling are likely to hurl accusations at the Court that it has overstepped its authority and is an “activist” court. Similar criticisms have been launched against the Court for Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). However, behind these criticisms often lie fundamental disagreements about the substance of the decision, the content of “liberty” or “equality” in the Fourteenth Amendment, and the proper way to measure protected individual interests versus state interests in restricting those interests. What follows are common criticisms of Roe from “originalist” and popular constitutionalist perspectives, as well as possible responses to these critical claims. 1. The Claim: “The right to abortion is not in the Constitution” One of the most common criticisms of Roe v. Wade is that it recognized a right that the Founders never recognized and never meant to protect,72 because the right of abortion or sexual privacy is neither written in the text of the Constitution nor supported by the original understanding of its principles or values. These critics contend that Roe is an example of an unprincipled and undemocratic form of judicial review that leaves constitutional protections up to the whims of the “activist” judge. They argue that the Roe Court defined the notion of “liberty” protected under the Due Process Clause in accordance with current notions of freedom—what has sometimes been called “living constitutionalism”—and that this understanding of the Constitution violates the Founders’ original intent and/or a proper understanding of the powers of the judiciary under the Constitution. There are different variations on this argument. Some scholars claim the Constitution should be understood to protect only those rights it specifically “enumerates” (textualists); others argue for a somewhat broader range of rights than those that were within the “original understanding” of those who drafted and ratified the document.73 Scholars and advocates adhering to this latter theory have sometimes been referred to as “originalists,”74 and sometimes as advocating “representation reinforcement theory.”75 Whatever their label, this group allows the Court broader leeway in interpretation than textualists, recognizing that some specific provisions of the Constitution allow some identification of rights from outside the text and that the original understanding of other provisions was open- ended. However, originalists still advocate a “minimalist” approach, warning judges that they should not stray far from the text and are better off leaving controversial issues to legislatures. For example, John Hart Ely, one of the first scholarly critics of Roe, argued that the right to abortion “lacks connection with any value the Constitution marks as special, [and thus] is not a constitutional principle.”76 71 See id. (“‘coercion by the majority in these aspects of life is tyranny’” (quoting Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 2-3 (1971))). 72 See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935-36 (1973) [hereinafter “Crying Wolf”] (arguing that the right to abortion “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.”). 73 See generally Richard Fallon, Jr., How to Choose a Constitutional Theory, 87 Cal. L. Rev. 535, 541-2 (1999) (outlining types of theoretical approaches). 74 See Jack Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 291-92 (2007) (identifying Ely’s criticisms of Roe as a kind of “originalism” relying on the “original expected application, rather than the ‘original meaning,’” of the Constitution’s provisions). 75 See Fallon, 87 Cal. L. Rev. at 542 (discussing Ely’s argument). 76 See Ely, Crying Wolf, 82 Yale L.J. at 949. Copyright ©2016 If/When/How. All rights reserved. 37 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 While these types of criticisms once came mainly from conservatives and were used to rally against Brown v. Board of Education, the Warren Court’s decisions on criminal procedure, and Roe, a new assault has been mounted from the Left on judicial review generally and on Roe in particular, in the form of “popular constitutionalism.”77 Dean Larry Kramer argues that the framers of the Constitution expected it to be interpreted “not by unelected judges but by the 47 people themselves—through petitions, juries, voting and civil disobedience.” a. The Response to “It’s not in the text” First, while it is true that the word “abortion” is not in the text, it can be pointed out that originalists undermine their argument that the right to abortion is nowhere to be found in the Constitution by acknowledging that women’s freedom to choose abortion is indeed a part of her “liberty” protected by the Fourteenth Amendment. Also, many have argued that the freedom to choose abortion is central to women’s equality, which can also be found in the Constitution.78 For example, in a critique of Roe written shortly after it was issued, Ely allowed that “[o]f course a woman’s freedom to choose an abortion is part of the ‘liberty’ the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone’s freedom to do what he wants.”79 Similarly, even then-Chief Justice Rehnquist agreed in his Roe dissent that a woman’s desire to be free of unwanted state regulation of abortion “may” be an assertion of a form of “liberty” protected by the Fourteenth Amendment and acknowledged that previous decisions supported that view. He also agreed that the “liberty” protected by the Fourteenth Amendment embraced more than the rights explicitly found in the Bill of Rights.80 Thus, the real argument that those taking this position have with Roe cannot be that the right to abortion is not contained in the Constitution, specifically in the original notion of liberty. Rather, what those in this camp really take issue with in Roe is the strength of the woman’s liberty right to abortion (a “fundamental” right), the level of protection the right is granted (“strict scrutiny”), and the balance the Court strikes between the woman’s interest and the state’s “desire to preserve the fetus’s existence.”81 These advocates object to any “conscious” balancing of right (the woman’s) versus rationale (the state’s) at all, reflecting a view that the right is not of any particular importance. See, e.g., Roe, 410 U.S. at 173 (stating that “the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.”) (Rehnquist, J., dissenting).82 One way to address these arguments is to engage the class in a discussion of the importance of abortion to different aspects of a woman’s life, and this to her overall liberty and equality. Ask the class to consider these things when determining how important abortion is to women, before they decide whether it is more or less important then the potential life of the fetus is to the state. This type of discussion focuses the class on the woman before she gets lost, as 47 77 See, e.g., Larry D. Kramer, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (Oxford Univ. Press 2004) See Jeffrey Rosen, Popular Constitutionalism, NEW YORK TIMES MAGAZINE (Dec. 12, 2004) (describing rise of popular constitutionalism); cf. Laurence H. Tribe, The People’s Court, NEW YORK TIMES (Oct. 24, 2004) (criticizing Kramer’s book and arguing that Kramer’s argument for popular constitutionalism is “as misleading as it is foreshortened”). 78 See infra Section III.C 79 See Ely, Crying Wolf, 82 Yale L.J. at 935. 80 Roe, 410 U.S. at 172-73 (Rehnquist, J., dissenting); id. at 173 (“The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective . . .”). 81 Ely, Crying Wolf, 82 Yale L.J. at 935 (arguing that “[w]hat is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it.”); id. (“‘due process’ generally guarantees only that the inhibition . . . have some “rational” connection—though plausible is probably a better word—with a permissible governmental goal.”); Roe, 410 U.S. at 173 (arguing that the issue was “one of the validity of social and economic legislation that should be tested according to the rational basis test,” and that “the test traditional applied in the area . . . is whether or not a law such as that challenged has a rational relation to a valid state objective.”) (Rehnquist, J., dissenting); see also Casey, 505 U.S. at 953 (“The Court in Roe reached too far when it analogized the right to abort a fetus to the rights involved in Pierce, Meyer, Loving, and Griswold, and thereby deemed the right to abortion fundamental.”) (Rehnquist, C. J., with White, Scalia, and Thomas, dissenting and concurring in part). 82 See also Ely, Crying Wolf, 82 Yale L.J. at 948-49 (arguing that “[t]he point that often gets lost in the commentary, and obviously got lost in Roe, is that before the Court can get to the ‘balancing’ stage, before it can worry about the next case and the case after that (or even about its institutional position) it is under an obligation to trace its premises to the charter from which it derives its authority. A neutral and durable principle may be a thing of beauty and a joy forever. But if it lacks connection with any value the Constitution marks as special, it is not a constitutional principle and the Court has no business imposing it.”). Copyright ©2016 If/When/How. All rights reserved. 38 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 she has in so many of the court’s decisions about reproduction. Some of the areas of a woman’s life impacted by pregnancy and birth of a child are: • Her health (an interest in bodily integrity); • Her ability to decide whether or not she will be a mother (an interest in “decisional autonomy” and self-definition; • Her ability to avoid the impact of stereotypical notions of motherhood on her self-definition and the impact of motherhood itself on her ability to participate equally in civic life, including at work (an interest in social and economic equality); and • Her ability to control the terms of motherhood itself and what kind of mother she will be (which can be seen as an interest in equality, or liberty or a combination of the two). Then the discussion can turn to a comparison of the importance of abortion and reproductive control to women’s lives and the importance of sexual self-definition in Lawrence v. Texas or other rights protected as “fundamental.” b. The Response to “The Founders never really intended to cover abortion” In many other areas, the Court has gone beyond “enumerated rights” and interpreted constitutional provisions more broadly than the Founders would have or could have anticipated, given the times in which they lived. As Professor Richard Fallon points out, “originalists candidly admit [that] originalist principles cannot explain or justify much of contemporary constitutional law.”83 In a dissent in Poe v. Ullman, 367 U.S. 497 (1961), Justice Harlan argued that the Fourteenth Amendment gave the Court the ability to define notions of liberty and fairness beyond the enumerated rights, writing: Again and again this Court has resisted the notion that the Fourteenth Amendment is no more than a shorthand reference to what is explicitly set out elsewhere in the Bill of Rights. . . . Indeed the fact that an identical provision limiting federal action is found among the first eight Amendments, applying to the Federal Government, suggests that due process is a discrete concept which subsists as an independent guaranty of liberty and procedural fairness, more general and inclusive than the specific prohibitions. Poe v. Ullman, 367 U.S. at 542 (Harlan, J., dissenting) (citations omitted). Professor Jack Balkin, other scholars, and even the dissenters in Casey84 have pointed out some of the other areas where the Court has not construed the constitutional text narrowly, but instead recognizes other fundamental rights that it believes may “be implied from textual commitments.” These include: • Freedom of association, which although not specifically listed in the text of the First Amendment has been held to “flow naturally out of the rights of speech, press, and assembly”85 • Right to contraception recognized in Griswold v. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972), which has just as much or just as little right to be seen as constitutionally protected as abortion • Liberty of parents to direct the upbringing of children in Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510, 536 (1925) • Right of marriage in Loving v. Virginia, 388 U.S. 1 (1967) and procreation discussed in Skinner v. Oklahoma, 316 U.S. 535 (1942) The arguments levied against Roe would also apply to these other cases, and yet, most critics of Roe will contradict themselves and accept the Court’s decisions in these cases. 83 Richard Fallon, Jr., How to Choose a Constitutional Theory, 87 Cal. L. Rev. 535, 547-48 (1999). 84 Planned Parenthood v. Casey, 505 U.S. 833, 951 (1992) (Rehnquist, C. J., with White, Scalia, and Thomas, dissenting and concurring in part). 85 See Jack M. Balkin, Opinions of the Court in WHAT ROE V. WADE SHOULD HAVE SAID 31, 35 (2005) (citing NAACP v. Alabama, 357 U.S. 449, 462 (1958)). Copyright ©2016 If/When/How. All rights reserved. 39 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 c. The Response to “Those areas are different because they were within the Founders’ ‘original understanding’ of liberty and equality. There was a long history of leaving those issues to the people.” Abortion may well have been within the Founders’ “original understanding” of liberty and equality. At the time the Constitution was written, abortion was legal until “quickening” (approximately 20 weeks of pregnancy) and was a practice conducted in private mostly by women and their midwives, until the 1860s when a movement spearheaded by the American Medical Association began to criminalize abortion throughout the country.86 This can be a tough argument given that women did not even have the right to vote until the early twentieth century, but it is worth pointing out that in the time of the drafting of the Constitution, abortion (at least until the mid-late second trimester) was a personal matter, not regulated by the state, that was at least as private as contraception. The right to abortion is based “on the constitutional text of the Fourteenth Amendment and the principles that underlie it” because the right is “based on the original meaning of the constitutional text, as opposed to its original expected application.”87 In this way, Professor Balkin reclaims the powerful notion of “originalism” and gives us a textual argument to counter the “originalists” who have hijacked the notion of fidelity to the constitution. Claiming a right to abortion based in the Fourteenth Amendment, he argues, shows fidelity to the Fourteenth Amendment’s principle of equal citizenship and its prohibition against class legislation. The arguments of those who advocate for abortion rights based on constitutional guarantees of gender equality and premised on anti-subordination principles have “deep roots in the original meaning of the Fourteenth Amendment.”88 2. The Claim: “Progressives and women are worse off after Roe than they would have been had the issue been left to the states” A number of progressive scholars, many of them part of the popular constitutionalism group, have argued that backlash to Roe v. Wade has hurt the progressive movement generally and women in particular. Roe, they claim, put a halt to a reform movement that was sweeping through the state legislatures. Their argument89 is that if only the Court had left the issue to the people, today women would be protected, the abortion issue would not be so divisive, and the political Right would not have gained strength from its opposition to Roe. a. Responses to the “Roe Rage” claim Backlash against Roe was part of a normal and healthy democratic process of response to judicial review, called “democratic constitutionalism.” It is not a sign that Roe was wrongly decided, and certainly not a sign that the Roe decision, or judicial review of state statutes, are anti-democratic. On the contrary, judicial review of the sort evidenced in Roe: … limits, channels, and amplifies democratic politics. Democratic politics, in turn, shapes the institution of judicial review. The plain historical fact of the matter is well described by Barry Friedman: ‘[A]fter all is said and done, if the fight is fought and pursued with focus, and attracts enough adherents, the law changes. Roe becomes Casey. Bowers becomes Romer and then Lawrence.’ Democratic constitutionalism invites us carefully to analyze how groups actually engage in politics over constitutional questions of this kind.90 86 See James C. Mohr, ABORTION IN AMERICA: THE ORIGINS AND EVOLUTION OF NATIONAL POLICY, 18001900 200-224 (Oxford Univ. Press 1978). 87 Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2008). 88 Id. at 292. 89 Sanford Levinson and Jack M. Balkin Debate, Legal Aff. Debate Club, Nov. 28, 2005, available at http://www.legalaffairs.org/webexclusive/debateclub_ayotte1105.msp. 90 Robert Post and Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 399 (2007)See also, e.g., Jack Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489, 489 (2006) (describing a process of constitutional change not dissimilar to that described by Siegel and Post and arguing that “[t]he forces of democratic politics drive [constitutional] regime changes, and the major actors are not courts but the Copyright ©2016 If/When/How. All rights reserved. 40 CONSTITUTIONAL LAW PRIMER / 3RD EDITION, 2013 Professors Post and Siegel also point out that Brown v. Board of Education also caused a great deal of backlash. In both Roe and Brown, the Court’s actions engendered great public debate, which became part of the political process. The public expresses its approval or disapproval with judicial decisions, which then impacts the electoral process and therefore judicial appointment. In this way, the judiciary remains responsive to the democratic majority, albeit indirectly. This is, the Professors posit, the way the Founders meant for the system to work. Justice Harlan also rejected the idea that a decision of the Court that causes a great deal of backlash is by definition incorrect and a sign that the issue should have been left to the states. He points out that the Court is maintaining a balance between respect for the liberty of the individual and the demands of “organized society.” He argues that the Court respects both “the traditions from which [the country] developed as well as the traditions from which it broke,” and argues that “that tradition is a living thing.” He remarks on the democratic influence on Court opinions when he recognizes that “[a] decision of this Court which radically departs from [the country’s traditions] could not long survive, while a decision which builds on what has survived is likely to be sound.” Poe v. Ullman, 367 U.S. at 542 (Harlan, J., dissenting). Although the claim that Roe derailed a popular abortion reform movement is appealing, factually, historians have undermined the idea that the nascent pro-choice movement was on its way to winning legislative protections for abortion in a significant number of states. The early successes of the abortion reform movement had stalled. Professor Balkin points out that only four states passed abortion repeal statutes that viewed abortion as a woman’s right, allowing abortion up to a certain point in pregnancy, and only thirteen had passed more limited abortion reform statues, which gave doctors somewhat more discretion to perform abortions.91 Finally, Roe and Casey have been legitimated by the passage of time, if not by the democracy at large. Therefore, as Professor Fallon writes, these cases have become “entrenched precedent” that reflects “widely shared and enduring values and assumptions.”92 B. FETUS’S RIGHT TO LIFE If opposition to Roe is expressed as an improper balancing of the interests of the woman and the interests of the fetus, you can engage in discussion of how the interests should be balanced, viz., the woman’s interest in her own bodily integrity, health and decisional autonomy, as against the state’s interest in the zygote and the fetus at varying stages of gestation. One outgrowth of this argument has been the strengthening of the state’s interest in protecting potential life, both in Casey and most recently in Gonzales v. Carhart. 1. The Claim: “A fetus is a person and, as such, has rights protected under the Constitution” a. Responses to claims of fetal personhood A fetus does not have legal personhood and is, therefore, not accorded the rights of a person under the Constitution. The Court in Roe cited three reasons for its conclusion that the Constitution’s meaning of “person” does not embrace the unborn: (1) “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today,” Roe, 410 U.S. at 158; (2) none of the states have criminal abortion statutes that would comply with the Fourteenth Amendment if this were true since none of them prohibit all abortions, id. at 157 n.54; and (3) “in political branches. Although courts may initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them through the development of constitutional doctrine”); Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1066 (2001) (introducing theory of how constitutional change and constitutional revolutions occurred that authors called the theory of “partisan entrenchment”). 91 Jack Balkin, Roe v. Wade: An Engine of Controversy, WHAT ROE V. WADE SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S MOST CONTROVERSIAL DECISION 3, 11 (New York Univ. Press, 2005). 92 Fallon, 87 Cal. L. Rev. at 546 (discussing Bruce Ackerman’s “practice-based theory”) Copyright ©2016 If/When/How. All rights reserved.