Who Will Fix the Supreme Court's Mess?

A history of United States Supreme Court abortion decisions and how they have shaped abortion law

 

By Clarke D. Forsythe

President, Americans United for Life

 

Because of the landmark United States Supreme Court (USSC) decisions in 1973 in Roe v. Wade[1] and Doe v. Bolton[2] the USSC has acted as the national abortion control board, dictating abortion policy (through its own decisions and those of the federal courts) throughout all 50 states for the past 35 years. Here, we review the constitutionality of legislation (the Court's treatment of legislation) prohibiting or regulating abortion. An accompanying chart summarizes the more than 30 decisions involving abortion that the USSC has issued since Roe in 1973.

 

In Roe and Doe, the USSC created a federal constitutional right to abortion and struck down the abortion laws of all 50 states, rendering them unenforceable. The Court also empowered the federal courts in all 50 states to oversee any abortion laws. That edict and oversight continues today, with federal courts dictating the content and boundaries of any abortion laws and regulations. Beginning with Roe v. Wade, the USSC for the past 35 years has required that any state or federal abortion legislation contain exceptions or limitations.[3] Unless Congress and state legislatures refrain from any legislation that touches abortion, they must abide by the guidelines and boundaries issued by the USSC if they want the laws to be upheld by the courts and enforced.

 

In evaluating the constitutionality of state legislation under the federal constitution, the federal courts apply a "standard of review," a standard prescribed by the USSC for deciding whether a statute is constitutional. There are three tiers of review (in laymen's language): harsh, intermediate, and deferential. In Roe, the Court purportedly applied the harshest standard to abortion legislation to direct federal courts in reviewing the constitutionality of abortion laws and regulations. However, over the past 35 years the USSC has changed the standard of review for abortion legislation at least four times (in Roe, Webster, Casey, and Stenberg) -- and perhaps more. Since 1973, when the USSC decided Roe and Doe, the Court has handed down opinions in at least 29 additional abortion cases (see U.S. Supreme Court Decisions on Abortion 1971-2007), issuing confusing and contradictory commands. In 1992 in Planned Parenthood v. Casey,[4] the USSC reaffirmed Roe, but overturned parts of its past decisions in Akron v. Akron Center for Reproductive Health and in Thornburgh v. American College of Obstetricians and Gynecologists. Just nine months after Casey, Justice O'Connor further confused the standard of review by issuing a concurring opinion in Fargo Women's Health Organization v. Schaefer.[5] That confusion led to the New Hampshire parental notice case in Ayotte v. Planned Parenthood. In January 2006, the USSC reversed the lower court's decision to strike down the law and remanded the case for further consideration.

 

Protective Laws Prohibiting Abortion

In Roe v. Wade, the USSC held that states may not prohibit any abortions before viability,[6] a holding expressly reaffirmed by the Court in 1992 in Planned Parenthood v. Casey.[7] Consequently, abortions before viability may be performed for any reason without state interference.

 

Together, the two decisions in Roe and Doe resulted in legalizing abortion throughout all nine months of pregnancy for any reason.[8] The USSC said that after viability, the states could "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."[9] The USSC's decision in Doe then supplied a unique and unlimited definition of "health." In abortion law, "health" means "all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient. All these factors may relate to health."[10] Thus, the "health" exception swallowed the rule (the supposed ability to prohibit abortion after viability), requiring all 50 states to allow abortion after viability for such "health" reasons. The USSC's decision in 1992 in Planned Parenthood v. Casey did not alter the holdings of Roe and Doe with respect to prohibitions of abortion before or after viability.

 

In 2000 in Stenberg v. Carhart, the USSC reaffirmed Roe and Casey and struck down the partial-birth abortion prohibitions of Nebraska and 29 other states. The Court in Stenberg reaffirmed that states cannot prohibit abortion before or after viability.[11] The USSC held that the states cannot prohibit abortion after viability "except where it is necessary -- for the preservation of the life or health of the mother."[12] The majority in Stenberg held that "health" must be interpreted broadly (citing Doe but without quoting the Doe language) and that such a broad health exception must apply to any prohibition before and after viability. Justice O'Connor provided the fifth vote for this broad health exception.[13] And the breadth of this health exception was emphasized by Justice Thomas in dissent.[14]

 

However, in 2007 the USSC effectively gutted the holding of Stenberg when it upheld the federal Partial-Birth Abortion Ban of 2003 in Gonzales v. Carhart. In addition to concluding that the government may ban a procedure without a health exception when another alternative exists,[15] the USSC also narrowed the unlimited health exception laid out in Doe v. Bolton to a focus on "significant health risks" -- effectively rejecting the contention that an unlimited emotional health exception is required for every abortion regulation.[16] The USSC's decision restored the guidelines set forth in Casey that are more deferential to state legislation.

 

Protective Laws Regulating Abortion

Since Roe, the USSC has ostensibly upheld the constitutionality of various regulations of abortion, though as a practical matter virtually all regulations are subject to court challenge by abortion advocates. In 1992, in Planned Parenthood v. Casey, the USSC held that regulations of abortion are unconstitutional if they impose an "undue burden," and said that 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."[17] Despite the statement in Casey that the decision was intended to clarify the rules and show greater deference to state regulations, Casey has fostered growing confusion among federal judges since 1992. As a result, a simple caveat for state abortion legislation has evolved: The best way to ensure that a regulation of abortion will be upheld by the USSC (though not a guarantee) is to follow the language of a regulation that has been previously upheld by the USSC.

 

Physician-Only Requirement:

A law forbidding non-physicians from performing abortions is constitutional.[18] Most states have such a law.[19] But because fewer and fewer physicians are willing to perform abortions, abortion advocates are attempting to eliminate or evade physician-only laws. They are trying to expand the pool of abortion providers to include physicians' assistants and nurse practitioners through state statutes and administrative regulations. In 1997, the USSC reaffirmed the constitutionality of physician only laws, but three justices -- Stevens, Ginsburg, and Breyer -- dissented.

 

Woman's Right-to-Know Laws (Informed Consent for Abortion):

One of the most significant aspects of the Planned Parenthood v. Casey decision in 1992 was its holding that states may require detailed informed consent information to be given (or made available) to women seeking abortions, and that states may impose short reflection periods to give adult women seeking abortions an opportunity to consider their decision. Casey specifically overruled Thornburgh v. American College of Obstetricians and Gynecologists and City of Akron v. Akron Center for Reproductive Health, which had found these types of requirements to be unconstitutional. States may now ensure that women receive the following information:

Significantly, the USSC in Casey also upheld a requirement that a physician, and not his agent, provide some or all of this information to the woman seeking the abortion.[21]

 

Reflection Periods for Adult Women:

The USSC in Casey held that a law requiring that an adult woman have an opportunity to consider her abortion decision for 24 hours is constitutional if the law contains an exception for medical emergencies.[22]

 

Waiting Periods for Minors:

The USSC held in Hodgson v. Minnesota[23] that a law requiring a minor woman to wait 48 hours before obtaining an abortion, for the purpose of involving her parent(s) or guardian(s) in her decision, is constitutional if the law provides for medical emergencies and contains a judicial-bypass mechanism.[24] The USSC has not ruled on the validity of longer waiting periods.

 

Spousal Consent:

The USSC in Planned Parenthood v. Danforth held that a law requiring a woman to obtain the consent of her husband before obtaining an abortion is not onstitutional.[25]

 

Spousal Notice:

The USSC in Casey held that a law requiring a woman to notify her husband of her intention to obtain an abortion is not constitutional.[26]

 

Parental Consent:

A law requiring a minor to obtain the consent of one or both of her parents before obtaining an abortion is constitutional, but only if there is an adequate judicial-bypass mechanism.[27] To be adequate, the judicial bypass must give the minor an opportunity to show that she is mature enough to make an abortion decision without the consent of her parents, or, assuming that she is unable to prove her maturity, that an abortion is in her "best interests." The bypass must also protect the minor's privacy and provide for an expedited procedure and appeal.[28]

 

Parental Notice:

The USSC in Hodgson v. Minnesota held that a law requiring a minor to notify both of her parents of her intention to obtain an abortion is constitutional, but only if there is an adequate judicial-bypass mechanism.[29] As noted above, the judicial bypass must give the minor an opportunity to show that she is mature enough to make an abortion decision without notifying her parents or, assuming that she is unable to prove her maturity, that an abortion is in her "best interests."[30]

 

A law requiring a minor to notify one of her parents of her intention to obtain an abortion is constitutional if the law provides an effective judicial-bypass mechanism. The USSC has not decided whether a one-parent notification requirement without a judicial bypass is constitutional. Whether the USSC would uphold such a law is uncertain.

 

Because the judicial-bypass hearing is not adversarial, the state may require a minor to prove her maturity (or that notification is not in her best interests) by "clear and convincing evidence." The USSC has also held that the law may place the burden of providing notice to the minor's parent(s) or guardian(s) on the physician, not an agent.[31]

 

Hospitalization Requirements:

A law requiring all abortions to be performed in a licensed hospital is not constitutional.[32]

 

A law requiring all abortions after the first trimester to be performed in licensed hospitals is not constitutional.[33]

 

A law requiring all abortions after the first trimester to be performed in licensed hospitals or a specified type of clinic (e.g., ambulatory surgical clinic) is constitutional.[34]

 

Second Physician Requirement:

A law requiring the concurrence of two or more physicians on the need for an abortion (a "second opinion") is not constitutional if the requirement applies before viability.[35]

 

A law requiring the presence of a second physician during the performance of an abortion after viability is constitutional if there is an adequate medical emergency exception.[36]

 

Abortion Techniques:

Prior to 2007, a law banning a specific abortion technique (e.g, saline amniocentesis) or mandating the use of a particular method of abortion (e.g., prostaglandin induction) was not constitutional.[37]

However, Gonzales v. Carhart demonstrates that specific post-viability techniques may be prohibited if there is another abortion alternative and there is an exception for the life of the mother.[38]

 

Standard of Care for Unborn Child:

A law requiring a physician performing a postviability abortion to use that technique most likely to result in a live birth is constitutional, but only if use of that technique does not subject the woman to a greater risk to her life or health than another method of abortion.[39]

 

A pre-viability standard of care is not constitutional.[40]

 

Public Funding of Abortion and Access to Public Facilities:

The U.S. Constitution does not require either the federal government or any state to provide public funding for either therapeutic or elective abortions, to make public facilities available for the performance of abortions, or to allow public employees to counsel or refer for abortions.

 

State Residency Requirements:

No state can forbid physicians from performing abortions on nonresidents.

 

Record Keeping and Reporting:

States may impose detailed record-keeping and reporting requirements if the patient's confidentiality is protected. These statutes, if properly drafted, are important in monitoring the incidence and demographics of abortion, abortion mortality (i.e., maternal death), and abortion morbidity (i.e., nonfatal maternal complications).

 

Significant Developments in 2007

The USSC issued its 5-4 majority opinion in Gonzales v. Carhart, upholding the Federal Partial-Birth Abortion Ban of 2003. As mentioned, the Court effectively threw out Stenberg and restored the guidelines set forth in Casey that are more deferential to state legislation. The USSC also held that the federal ban did not require a health exception, in essence because other alternatives existed. Further, the USSC appears to have narrowed the unlimited health exception in Doe v. Bolton, focusing instead on "significant health risks." This focus effectively rejects the contention that an unlimited health exception is required for every abortion regulation.

 

In addition, the USSC made some important findings regarding informed consent, stating that "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained," and noting that "[s]evere depression and loss of esteem can follow."[41] The USSC went on to conclude that "[t]he State has an interest in ensuring so grave a choice is well informed."[42] These acknowledgements pave the way for states to promulgate more restrictive informed consent laws.

 

What to Do in 2008

As of October 2007, a majority of five justices on the USSC -- Stevens, Kennedy, Souter, Ginsberg, and Breyer -- strongly support Roe. Until the number of pro-Roe justices is reduced to four or less, cases challenging Roe will fail, as the McCorvey v. Hill litigation demonstrates.[43] Thus, focus needs to continue on abortion regulations that can be effectively enforced to reduce abortion and protect mothers and children.

 

It is still possible for states to refuse to fund or promote abortion and for states to enact important regulations -- like parental notice and consent, informed consent, abortion clinic regulations, and others -- that have been shown to be effective in reducing abortion and protecting women and minors from the negative impact of abortion.[44]

 

Endnotes

  1. ? 410 U.S. 113 (1973).
  2. ^ 410 U.S. 179 (1973).
  3. ^ See, e.g., Stenberg v. Carhart, 530 U.S. 914, 921 (2000) (". . . 'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'") (quoting Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)). However, the USSC's decision in Gonzales v. Carhart may not require states to include broad health exceptions in common-sense abortion regulations. 167 L. Ed. 2d 1610 (2007).
  4. ^ 505 U.S. 833 (1992).
  5. ^ 507 U.S. 1013, 1014 (1993) (O'Connor, J., concurring).
  6. ^ Roe, 410 U.S. at 164-65.
  7. ^ Casey, 505 U.S. at 846 ("Before viability, the State's interests are not strong enough to support a prohibition of abortion.") Id. Defending Life 2008 41 at 879 ("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.")
  8. ^ The USSC said that the two decisions, Roe and Doe, "are to be read together." Roe, 410 U.S. at 165.
  9. ^ Roe, 410 U.S. at 164-65.
  10. ^ Doe, 410 U.S. at 192.
  11. ^ Stenberg, 530 U.S. at 921 (citing Casey, 505 U.S. at 877).
  12. ^ Id. (citing Roe, 410 U.S. at 164-65, and Casey, 505 U.S. at 879).
  13. ^ Id. at 948 (O'Connor, J., concurring) ("Because even a postviability proscription of abortion would be invalid absent a health exception, Nebraska's ban on previability partial-birth abortions, under the circumstances presented here, must include a health exception as well, since the State's interest in regulating abortions before viability is 'considerably weaker' than after viability. The statute at issue here, however, only excepts those procedures 'necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury.'. . . This lack of a health exception necessarily renders the statute unconstitutional.").
  14. ^ Id. at 1009 (Thomas, J., dissenting) ("The rule set forth by the majority and JUSTICE O'CONOR dramatically expands on our prior abortion cases and threatens to undo any state regulation of abortion procedures").
  15. ^ Gonzales, 167 L. Ed. at 513-14.
  16. ^ Id. at 511.
  17. ^ Casey, 505 U.S. at 877.
  18. ^ Roe, 410 U.S. at 165; Doe, 410 U.S. at 199-200; Conn. v. Menillo, 423 U.S. 9 (1975); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 430 n.12, 447 (1983) (Akron I); Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam).
  19. ^ Mazurek, 520 U.S. at 969 n.1 (citing 40 states).
  20. ^ Casey, 505 U.S. at 881-85; see also Akron I, 462 U.S. at 445 n.37 (by implication); Planned Parenthood v. Danforth, 428 U.S. 52, 65-67 (1976).
  21. ^ Casey, 505 U.S. at 884-85.
  22. ^ Id. at 880, 883-84. The waiting period for adult women in the Pennsylvania statute was 24 hours.
  23. ^ 497 U.S. 417 (1990).
  24. ^ Id. at 496-97 (1990) (Kennedy, J., joined by Rehnquist, White, and Scalia, J.J., concurring).
  25. ^ 428 U.S. 52, 67-72 (1976).
  26. ^ Casey, 505 U.S. at 895 ("In a large fraction of the cases in which [the spousal notice provision] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid").
  27. ^ Id. at 899 ("Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure."); Danforth, 428 U.S. at 72-75. See also Akron I, 462 U.S. at 439-42.
  28. ^ Bellotti v. Baird, 443 U.S. 622 (1979); Planned Parenthood v. Ashcroft, 462 U.S. 476, 490-93 (1983); Casey, 505 U.S. at 899.
  29. ^ 497 U.S. 417 (1990). Justice O'Connor provided the fifth vote to strike down two-parent notice without judicial bypass. Id. at 459-460. She provided the fifth vote to uphold two-parent notice with judicial bypass.
  30. ^ Id. at 458 (1990) (O'Connor, J., concurring in part and concurring in the judgment in part); id. at 497 U.S. at 481 (Kennedy, J., concurring in the judgment in part and dissenting in part, with Rehnquist, White, and Scalia, J.J.). See also H.L. v. Matheson, 450 U.S. 398 (1981).
  31. ^ Ohio v. Akron Ctr for Reprod. Health, 497 U.S. 502, 518 (1990) (Akron II).
  32. ^ Doe, 410 U.S. at 195.
  33. ^ Akron I, 462 U.S. at 433-34.
  34. ^ Simopoulos v. Virginia, 462 U.S. 506 (1983).
  35. ^ Doe, 410 U.S. at 198-200 (striking down two-physician concurrence requirement).
  36. ^ Compare Thornburgh v. Am. College of Obstetricians & Gynecologists, 476 U.S. 747 (1986) (striking down post-viability second-physician requirement that did not contain a medical emergency exception), with Planned Parenthood v. Ashcroft, 462 U.S. at 482-86 & n.8 (upholding second-physician requirement for post-viability abortions where compliance with statute was implicitly excused in emergency situations).
  37. ^ See Danforth, 428 U.S. at 75-79 (striking down ban on saline amniocentesis technique); Thornburgh, 476 U.S. at 768-71 (striking down requirement that physician performing post-viability abortion use method that would maximize chances of the child's survival); Colautti v. Franklin, 439 U.S. 379, 397-401 (1979) (same).
  38. ^ Gonzales, 127 S. Ct. 1610.
  39. ^ Planned Parenthood v. Ashcroft, 462 U.S. at 479 n.3, 482-86.
  40. ^ Danforth, 428 U.S. at 81-83.
  41. ^ Gonzales, 167 L. Ed. 2d at 510.
  42. ^ Id.
  43. ^ McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), cert. denied, 125 S.Ct. 1387 (U.S. Feb. 22, 2005) (petition by Norma McCorvey, the "Roe" of Roe v. Wade, for the USSC to reopen and reconsider the Roe decision based on "changed circumstances").
  44. ^ See generally, Erika Bachiochi, ed., The Cost of "Choice": Women Evaluate the Impact of Abortion (2004).