The Viability of Roe, Part 2: From Roe to Carhart

PartialBirth_Method

While Roe did not expressly declare abortion to be a “fundamental right,” in the wake of the decision many lower federal courts certainly interpreted abortion as such.[1] Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts. A brief overview of some of the major pre-Casey abortion cases will be beneficial in illustrating how the Court got from Roe to Casey:

  • Connecticut v. Menillo (1975) – In a per curium decision, the Court upheld Connecticut’s criminal prohibition against non-physicians performing abortions, stating that “Roe did not go that far.”[2]
  • Planned Parenthood v. Danforth (1976) – The Court upheld part of a state statute requiring a woman to give written consent prior to undergoing an abortion, but struck down spousal and parental consent requirements.[3]
  • Bellotti v. Baird (1976) – The Court this time upheld the requirement that a minor seeking an abortion must obtain parental consent, provided that there is the option for a “judicial bypass” whereby the minor can obtain consent from a judge if necessary.[4]
  • Harris v. McRae (1980) – The Court upheld the Hyde Amendment, which forbade federal funding of abortions. The Court reasoned in this case that abortion was not a fundamental right.[5]
  • City of Akron v Akron Center for Reproductive Health, Inc. (1983) – The Court struck down a 24 hour waiting period between the time a woman seeking an abortion received counseling, and when she could undergo the abortion procedure.[6]
  • Thornburg v. American College of Obstetricians and Gynecologists (1986) – The Court struck down a number of state regulations, including informed consent requirements, reporting requirements for abortion clinics, and regulations on the medical aspects of the abortion procedure.[7] Though the majority referred to “a woman’s right to make that choice [abortion] freely [as] fundamental,” they did not apply strict scrutiny in their rationale.[8]
  • Rust v. Sullivan (1991) – The Court upheld federal finding regulations that restricted federal funding from be awarded to family planning clinics that counseled for, or performed abortions. The Court relied on Harris in its decision.[9]

As demonstrated by these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburg called abortion a “fundamental right,” the Court chose not to apply a strict scrutiny standard of review in the case.[10] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis.[11]

A. Planned Parenthood v. Casey

The confusion over abortion law, as seen in the decisions listed above, intensified the national debate over the issue. In 1992, many believed that the Court was poised to overturn Roe, but instead, in Planned Parenthood v. Casey the Court decided to take a much narrower approach to redefining abortion jurisprudence.[12]

In taking a narrow approach, the three judge plurality purported to rely on the concept of stare decisis to reaffirm the central holding of Roe of “the right of the woman to choose to have an abortion before viability.”[13] In defense of this affirmation the plurality claimed Roe had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”[14] Furthering this argument, the plurality argued that overturning Roe would “seriously weaken the Court‘s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”[15] The plurality also relied on their belief that:

[F]or 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.[16]

 

In response to these claims, Justice Scalia and Chief Justice Rehnquist pulled no punches in their respective dissents. Answering the plurality’s argument that overturning Roe would weaken the Court, Justice Scalia had the following to say:

In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.[17]

 

 

Likewise, Chief Justice Rehnquist’s dissent responded to the plurality’s claim regarding women’s social and economic equality with similar skepticism:

The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring.  Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men… The “separate but equal” doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.[18]

 

Despite these harsh criticisms from their fellow justices, the plurality still chose to interpret stare decisis in a way that prevented them from overturning Roe. However, while the plurality claimed to be reaffirming the central holding of Roe they made significant changes to the Court’s existing abortion doctrine.

One of the biggest changes Casey made was expressly abandoning abortion as a fundamental privacy right, and the accompanying strict scrutiny standard of review. This shift from privacy to liberty is evidenced in what is sometimes mockingly referred to as Casey’s “Mystery of Life Passage”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[19]

In place of the previous standard, the plurality described abortion as a “protected liberty interest” that was measured according to an intermediate level standard of review called “undue burden.”[20] The plurality defined “undue burden” as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”[21]

But what exactly is “undue”? Under this standard, the Casey Court upheld informed consent, a 24 hour waiting period, reporting requirements for abortion facilities, parental consent (with judicial bypass), and a definition of “medical emergency” related to abortion; the only Casey requirement struck down was spousal consent.[22] But it is only contextually through cases that we can truly determine which burdens the Court believes are “undue’, as the guideline is difficult to interpret in a vacuum.

Justice Scalia has long been a critic of the “undue burden” standard, arguing that it places the Court in the inappropriate position of making legislative decisions regarding abortion legislation that are not guided by the Constitution, but rather are guided by the personal opinions and feelings of the individual Justices.[23]

Another major change the plurality made to Roe was to abandon the trimester framework set down in Roe, and focus solely on viability as the “compelling point.” In their reasoning, the plurality claimed that “there is no line other than viability which is more workable” as a compelling point for state’s interest to take hold.[24] The plurality also justified viability by arguing that there is an “element of fairness” in choosing it, because “in some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”[25] At this time the Court also recognized that medical technology had advanced to the point that viability was now generally accepted to be at approximately 21 weeks post-fertilization.[26] Finally, the plurality says that “the trimester framework… [did] not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.[27] Justice Kennedy, writing for the plurality, spends a considerable amount of time and space explaining the importance of the State’s “profound interest in potential human life.”[28] This is an argument Justice Kennedy would continue to defend eloquently in abortion subsequent cases.

In the opinion of the dissenters, Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas, the state’s interest in protecting fetal life is profound enough to require that Roe be overturned in its entirety, so that states were free to ban abortion as they saw fit.[29]

B. Stenberg v. Carhart

The next major legal challenge to abortion came in 2000, when late term abortionist Leroy Carhart challenged Nebraska’s Partial-Birth Abortion Ban in Stenberg v. Carhart.[30] Nebraska’s ban sought to outlaw a specific method of abortion, which is described in gruesome detail in Justice Kennedy’s dissent:

[T]he abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman, react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.[31]

 

Despite these grisly facts, the Court voted 5-4 that Nebraska’s Partial-Birth Abortion Ban was unconstitutionally vague because it did not adequately differentiate Partial-Birth Abortion from method, as well as finding that it violated the “undue burden” standard because it lacked a Roe style health exception.[32]

As the author of Casey, which he thought to be a grand compromise that would end the abortion debate once and for all, Justice Kennedy was furious and this can be seen in his scathing dissent. Justice Kennedy claims the majority in Stenberg has “a basic misunderstanding of Casey,”[33] and “contradict[ed] Casey’s premise that States have a vital constitutional position in the abortion debate.”[34] Additionally, Justice Kennedy accused the majority of “fail[ing] to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake.”[35] To bolster this claim, Justice Kennedy cites the Court’s prior decision in Kansas v. Hendricks, where a man was convicted for refusing to receive the small pox vaccine.[36] In Hendricks, the Court ruled that disagreements among medical professionals “do not tie the State’s hands in setting the bounds of…laws. In fact, it is precisely where such a disagreement exists that the legislatures have been afforded the greatest latitude.”[37]

Justice Kennedy went on to argue that the Court was ignoring “substantial medical and ethical opinion[s]”[38] regarding this procedure, “which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[39]

Justice Scalia also wrote a scathing dissent in Stenberg, in which he expressed his hope that “one day, Stenberg will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”[40]

C. Gonzales v. Carhart

Fortunately for Justice Scalia, he did not have to wait very long. In response to Stenberg, Congress held fact finding hearings on Partial-Birth Abortion, and eventually passed the Partial-Birth Abortion Ban of 2003.[41] The factual findings Congress used to support this Act included, among others, that:

  • A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
  • [Partial-Birth Abortion is] unnecessary to preserve the health of the mother, [and] in fact poses serious risks to the long-term health of women and in some circumstances, their lives.
  • A prominent medical association has concluded that partial-birth abortion is ‘not an accepted medical practice’…The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is ‘ethically wrong,’ and ‘is never the only appropriate procedure’.
  • It is a medical fact…that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
  • In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.[42]

 

Congress, hoping to avoid the impermissibly broad reading the Court used to strike down Nebraska’s Partial-Birth Abortion Ban, carefully crafted the descriptive language of the procedure. However, as seen in the Congressional findings listed above, Congress adamantly stuck by their belief that Partial-Birth Abortion was never medically necessary, and as such, did not include any language regarding a health exception to the ban.

Before it could even be signed into law by President George W. Bush, the Partial-Birth Abortion Ban of 2003 was challenged by abortionist Leroy Carhart, who had previously been the victor in Stenberg The resulting case, Gonzales v. Carhart, Court concluded that the legitimacy of the government’s interests in banning partial-birth abortions disproved the notion that the ban had the impermissible purpose of placing a “substantial obstacle in the path of a woman seeking an abortion.”[43]

Justice Kennedy once again wielded his pen in defense of State’s interests, composing the majority opinion of the Court. Justice Kennedy reasoned that the “central premise of [Casey]” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life.”[44] In seeking to balance “the State’s interest in promoting respect for human life at all stages in the pregnancy,”[45] and a woman’s right to choose abortion, the Court ruled that the Partial-Birth Abortion Ban advanced a legitimate legislative purpose by “express[ing] respect for the dignity of human life,”[46] by promoting the state’s interest in “protecting the ethics and integrity of the medical profession,” and by preventing the “further coarsen[ing] [of] society to the humanity of…all vulnerable and innocent human life.”[47]

In finding that the Act’s lack of a health exception did not impose an “undue burden,” the Court considered the medical findings Congress relied upon to justify the Act.[48] This gave Justice Kennedy the chance to reiterate his arguments from his previous dissent in Stenberg, now held by the majority in Gonzales, regarding the right of a state to take sides in medical debates, ruling once and for that, “[m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”[49]

The dissent in Gonzales harshly criticized the majority decision as, “blur[ring] the line, firmly drawn in Casey, between pre-viability and post-viability abortions.”[50]  Outside critics of the Court’s decision have gone even further, claiming that the fact that the ban applied both pre- and post-viability constituted “a direct violation of Roe’s bright line rule,” and that the Court’s decision to uphold it “demonstrated that the fixed point of viability can be bypassed.”[51]


[1] See e.g., Poe v. Gerstein, 517 F.2d 787, 789 (5th Cir. 1975); Friendship Medical Center v. Chicago Board of Health, 505 F.2d 1141, 1148 (7th Cir. 1974); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974).

[2] Connecticut v. Menillo, 423 U.S. 9, 10 (1975).

[3] Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

[4] Bellotti v. Baird, 428 U.S. 132 (1976).

[5] Harris v. McRae, 448 U.S. 297 (1980).

[6] City of Akron v Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).

[7]Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[8] Id., at 772.

[9] Rust v. Sullivan, 500 U.S. 173 (1991).

[10] Thornburg, 476 U.S. at 772.

[11] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[12] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[13] Id., at 846.

[14] Id., at 867.

[15] Id., at 865.

[16] Id., at 856.

[17] Id., at 998 (Scalia, J., dissenting).

[18] Id., at 956-7 (Rehnquist, C. J., dissenting).

[19] Id., at 851.

[20] Id., at 877.

[21] Id.

[22] See generally, Id.

[23] Supreme Court Justice Antonin Scalia, Remarks to Baton Rouge Federalist Society (October 11, 2013).

[24] Casey, 505 U.S. at 870.

[25] Id.

[26] Id., at 860 (23 weeks LMP).

[27] Id., at 876.

[28] Id.

[29] Id., at 944.

[30] Stenberg v. Carhart, 530 U.S. 914 (2000).

[31] Id., at 959-60.

[32] Stenberg, 530 U.S. 914.

[33] Id., at 964.

[34] Id., at 963.

[35] Id., at 970.

[36] Kansas v. Hendricks, 521 U.S. 346 (1997).

[37] Id., at 360.

[38] Stenberg, 530 U.S at 797.

[39] Id., at 961.

[40] Id., at 953; Korematsu v. United States, 323 U.S. 214 (1944) (Upholding the constitutionality of the military imprisonment of thousands of American citizens of Japanese descent , in internment camps during World War II); Dred Scott v. Sandford, 60 U.S. 393 (1857)(Holding  that an African American slave is not a “person” under the U.S. Constitution; and was therefore the property of the slave owner).

[41] Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (2004).

[42] See 18 U.S.C. § 1531 (note following) (congressional findings for Pub. L. No. 108-105, §2, Nov. 5, 2003, 117 Stat. 1201).

[43] Gonzales, 550 U.S. at 160.

[44] Id., at 157.

[45] Id., at 163 (emphasis added).

[46] Id., at 157.

[47] Id.

[48] Id., at 165.

[49] Id., at 164.

[50] Id. at 186.

[51] Katia Desrouleaux, Banning Partial-Birth Abortion at All Costs-Gonzales v. Carhart: Three Decades of Supreme Court Precedent “Down the Drain”, 35 S.U. L. Rev. 543, 553 (2008); Jason Pill, Constitutional Law: Drawing A New Critical Line Between the State’s Competing Interests in Abortion Regulation to Comport with Social Palpability Gonazales v. Carhart, 127 S. Ct. 1610 (2007), 19 U. Fla. J.L. & Pub. Pol’y 369, 378 (2008).

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