“THE SUPREME Court Reverses Roe v. Wade! ” In 1992, the Court supposedly was poised to do just that in a Pennsylvania case, Planned Parenthood v. Casey. That headline has been anticipated many times since 1973 when the Supreme Court constitutionalized abortion. It didn't materialize in 1992. Many pro-lifers still anticipate that banner head someday, but, after 20 years ‘work, they are sorely disappointed.
As a constitutional lawyer, I'll tell you a secret. Although the Court did not reverse outright, it seriously weakened the legal underpinnings for Roe in 1992. Now is the time to start the process of building consensus and passing legislation to expose that secret.
Any lawyer who has done any courtroom work knows that who wins and who loses often depends on who has the burden of proof and what the lawyer has to prove. The principal reason that Roe was so difficult to constrain in these 23 years is that the Court, in constitutionalizing abortion, made it a “fundamental right.” By calling an abortion decision a “fundamental right,” the majority of the Court affected the burden of proof and the standard of proof. By making it a “fundamental right,” the Court made it almost impossible for any state to regulate, much less restrict, abortion.
Under Roe, the state had the burden to prove that any imposition on the abortion decision was justified, not by some good reason, but by a “compelling” reason. “compelling interests” are described by the Court as strictly related to health, safety, or welfare. To be valid, any such imposition on a “fundamental right” is permitted only to the narrowest degree necessary to accomplish a compelling interest. In the Roe world, pregnancy was neatly divided into trimesters and the asserted interest of the state in each trimester was rapidly compressed. Not surprisingly, in virtually every case following Roe, states’attempts at regulation failed and the Court increasingly narrowed the grounds on which a state's supposed interests could be deemed compelling. Aperson could, legally, have an abortion throughout the entire nine months of pregnancy for any reason or none at all.
In 1989, the Court seemed to signal its willingness to reconsider Roe in a fundamental way. It is my theory that, in Planned Parenthood v. Casey, in 1992, the Court did just that. Newly appointed justices were sharply critical of Roe and the Court seemed to tire of the endless litigation. The Court carefully moved away from the rhetoric and standards of fundamental rights. It called abortion a “liberty” interest and changed the burden and standard of proof. By abandoning the language of fundamental rights, the Court provided that this ” liberty “ interest could now be balanced against various state interests. Now the opponent of a proposed regulation or restriction, not the state, has the burden to prove that the regulation is an “undue burden” on the abortion decision. Although the test is still weighted in favor of the abortion decision, the Court has at least abandoned the strict regime that governed constitutional abortion for nearly 20 years, opening the door to the political process and the people.
Significantly, the three justices who made up the governing “plurality “ opinion in Casey— Justices Sandra Day O'connor, David Souter, and Anthony Kennedy—declined to overrule Roe expressly, but not necessarily because abortion itself was some important constitutional interest. They did so on the grounds that the decision was then 20-years-old. To them, other aspects of contemporary society and law depended on the continuing vitality of that decision. This deference to established legal precedent is called stare decisis. Roe was protected on this ground, and not because any of these three justices would have constitutionalized abortion if this decision had been presented to them in the first instance. Since Casey however, now that the door has been opened, there has been little or no movement by the Court. Rather, it has avoided revisiting abortion in any significant way.
I will let you in on another secret: I suspect, but cannot prove, that a plurality of the Court thinks it has “solved” the abortion problem for the Supreme Court. It has protected the abortion decision itself but made it increasingly subject to regulation and has changed the standard of review and burden of proof in such a way that it will be easier for state regulation to be sustained on judicial review. In this way, I suspect, the Court thinks it can have it both ways—it protects abortion but allows it to be increasingly subject to scrutiny and even restriction.
Since Casey, the Court has addressed the rights of protesters and the rights of clinic operators to resist them. It has decided that the federal civil rights laws cannot be used as a basis to prosecute abortion clinic protesters. It has rendered an exceptionally detailed decision about how far and how vigorous protesters may be around clinics. The Court has refused to grant petitions to review decisions involving detailed state laws governing abortion, preferring to leave the work ultimately to state legislatures and lower federal courts. This tinkering “around the edges” has provoked criticism inside and outside the Court. A most recent example came in a sharp dissenting opinion filed by Justice Antonin Scalia April 29 in a case involving parental notice laws of South Dakota.
In my view, the Court cannot pretend that it has solved the problem of abortion. But, even more important, the pro-life movement cannot fail to appreciate the significance of the fact that the Court has changed the ground on which abortion has stood for these all-too-many years.
We find traces of the Court's abortion cases in the recent “right to die” decisions. In creating a “right to die,” the United States Court of Appeals for the Ninth Circuit in California relied on rhetorical flourishes found in Planned Parenthood v. Casey. There, the plurality opinion, referred to above, discusses life's “intimate choices” and lumps in abortion decision-making with these choices. It wasn't much of a jump for the Ninth Circuit to find in this rhetoric a basis on which it presumed to create a new constitutional right to hasten death. In my view, Casey cannot be read so broadly and we have said so in our briefs amicus curiae and in scholarly articles. That reading is erroneous. Indeed, citing the work of the Bishop's Conference, the Second Circuit Court of Appeals in New York rejected this broad new constitutional right. It expressly disagreed with its California cousin but nonetheless, unfortunately, protected a decision to hasten death, on substantially narrower legal grounds. That decision, too, is wrong. The need for Supreme Court action is clear: The abortion rhetoric is encouraging more legal mischief that is detrimental to our society.
Even if it were not for the mounting toll of abortion, these new decisions show up the dangerous jurisprudence loosed by the Court in Roe and left deliberately unclear in Casey. These “right to die” decisions show that more careful attention must be given in state legislatures to laws exploring the gray area between permissive abortion and comprehensive regulation, even restrictions. For example, informed consent laws providing for a more vigorous advance of a state's policy protecting childbirth, and laws banning certain abortion methods—such as the law against partial-birth abortions recently vetoed by the President—would all seem to be permissible after Casey. Legislative initiatives could specifically test the Supreme Court's seeming willingness to allow for more state regulation.
In 1983, in her first decision on the Supreme Court concerning abortion, Justice Sandra Day O'connor suggested that Roe's rhetoric was on a collision course with itself. She said that the Court's willingness to accept regulation, even outright restriction, in the third trimester after viability was bound to collapse, given advances in medical science pushing back the date of viability into the second trimester. In 1996, I would suggest that the law is on a similar collision course with the Court. Perhaps not this year, but some time soon, the Court must come to grips with the consequences of its decision in Casey. This is the time to begin that process.
Mark Chopko is general counsel for the United States Catholic Conference.