NARAL Pro-Choice Missouri : Issues : Fact Sheets

SUMMARY: For the first time in 35 years, since Roe v. Wade was decided, the Supreme Court has upheld a ban on a specific abortion procedure. For the first time in 35 years, the Court has upheld a restrictive regulation on abortion that makes no exception for the health of the woman, and has in the process crafted a decision wholly inconsistent with the underlying principles of Roe as well as with its straightforward decision just seven years ago to strike abortion-restrictive laws as facially unconstitutional if they have no exception for the mother’s health.

Startlingly, the Court seemingly applied rational-basis review, the lowest level of constitutional scrutiny, instead of heightened scrutiny, the standard that generally is applied in abortion cases and women’s rights cases. Language in the opinion was taken directly from anti-choice briefs and reflects stereotyped thinking about women’s roles. The Court’s disparagement of facial challenges to enjoin enforcement of statutes, and its insistence that challenges must be “as-applied” challenges, is a body blow to the whole of civil rights law, not merely reproductive rights. The movement toward “deconstitutionalizing” Roe and allowing legislative bodies to regulate expansively in the area of women’s reproductive rights is a seismic shift and the harbinger of a new era of “state’s rights” jurisprudence applied to erstwhile federal constitutional rights.

Less than a week after rendering its decision in the cases, the Court directed the United States Court of Appeals for the Eighth Circuit to apply its decision to a pending challenge to Missouri’s late-term abortion ban. Missouri thus became the first state in the nation to feel the impact of the decision.

In 2000, by a 5-4 margin, the Supreme Court in Stenberg v. Carhart struck Nebraska’s ban on intact dilation and extraction (known in anti-choice rhetoric as “partial-birth abortion”), largely because the statute had no exception for the health of the woman. Although earlier Congresses had attempted to pass a federal ban on the procedure, Congress could not prevail against a presidential veto. Defying the Court’s 2000 decision in Stenberg v. Carhart, Congress drafted a federal ban on intact dilation and extraction and five times defeated amendments to add an exception for the woman’s health; President Bush signed it into law in 2003. In a further taunt to the Court’s holding in the Nebraska case, Congress made the factual finding that the banned procedure was “never” necessary for the health of the woman, since an alternative abortion procedure exists.

Three lower federal courts, applying the principles of Roe and the direct holding of Stenberg, struck the federal ban as facially unconstitutional, enjoining its enforcement before it could be applied to any doctor performing the procedure. The Supreme Court, which customarily grants the discretionary writ of certiorari to hear an appeal only in cases in which a novel question of law is presented or where the lower courts of appeal have reached conflicting decisions, decided to hear a case from the Eighth Circuit (which includes Missouri and Nebraska) and a case from the Ninth Circuit, at the request of President Bush’s Solicitor General. It did so in the wake of last term’s decision in the Ayotte case, a case involving New Hampshire’s parental-consent statute that was deliberately written without a health exception, in which the Court broadly foreshadowed its judicial attack on traditional remedies in constitutional cases.

Justice Kennedy, known to be the “swing vote” in the absence of Justice Sandra Day O’Connor, wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Alito, Scalia, and Thomas. Notably, Chief Justice Roberts and Justice Alito were nominated by President George W. Bush, who promised to appoint judges in the mold of Justices Scalia and Thomas and whose judicial nominations provoked discussion of a filibuster even with a right-wing majority in the Senate at that time. Justice Alito, who replaced Sandra Day O’Connor, was the architect of the Reagan Justice Department’s strategy to erode Roe gradually rather than to candidly overrule it and thereby catalyze the political backlash that such an action would have catalyzed in the 1980s. In a 1985 memo that he wrote while an assistant to President Reagan’s Solicitor General, Alito wondered, “What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

Justice Kennedy was uncomfortable in deliberating on the Nebraska abortion ban in 2000, describing the intact dilation and extraction procedure as “gruesome” in his dissenting opinion. In 2004, when Justice Blackmun’s private papers were released, they revealed that Justice Kennedy almost voted to overturn Roe v. Wade in 1992, when Casey was decided. A majority opinion, in which Kennedy joined, was being written by Chief Justice Rehnquist at that time; joining them would have been Justice Byron White, Antonin Scalia, and Clarence Thomas. In a compromise with fellow Republican-appointed Justices Sandra Day O’Connor and David Souter, Kennedy agreed not to vote to overturn Roe, in exchange for Casey’s framework of allowing increasing state regulation of abortion as fetal viability increased.[2] Thus, Casey’s majority to overturn Roe dwindled to a plurality, and Roe was spared.

Justice Kennedy’s opinion is remarkable for its adoption of Right to Life rhetoric. Pages incorporated into the majority opinion were appropriated from a brief in an unrelated case seeking to reopen Roe’s 1973 companion case, Doe v. Bolton. Throughout, physicians performing the procedure are referred to as “abortion doctors,” and second-trimester, pre-viability abortions are characterized as “late-term.” Women are regarded through the lens of their capacity for motherhood. A fetus is described as a “baby” and an “unborn child.” Viewed in this light, it is unsurprising that the Court rejected the expert judgment of the American Academy of Obstetricians and Gynecologists (which speaks for 90% of American OB/GYNs) that the banned procedure is often the safest for the woman. (The alternative procedure terminates the pregnancy just as finally as does the banned one, but the alternative abortion procedure may result in additional risk to the woman because it requires repetitive invasion and scraping of tissue with surgical instruments, increasing the risk of perforation, blood loss, and infection.) Tellingly, the majority opinion subscribes to the scientifically unsubstantiated theory that women who have abortions suffer “abortion trauma syndrome”—even while conceding that “we find no reliable data to measure the phenomenon.” Lacking reliable data, the majority opinion draws instead on its stereotyped assumptions about women’s roles:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . . [I]t seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.

Justice Kennedy’s opinion shifts the emphasis from the woman’s health to respect for fetal life, writing, “[T]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman. . . .[T]he Court’s precedents after Roe had ‘undervalue[d] the State’s interest in potential life.’”[3] Just as the opinion recasts the Casey decision as principally fetal-protective rather than woman’s health-protective, the opinion purports to distinguish rather than overrule the Court’s decision in Stenberg in 2000. The rationalization is tepid. First, Justice Kennedy noted that the federal abortion ban case was “different” from the Nebraska case because Congress had made “factual findings.” He did not recite the litany of cases in recent years in which the Court has rejected congressional findings that were the product of extensive hearings in order to deny Congress’ power to legislate in the area of workers’ rights and general civil rights.[4] Despite acknowledging that Congress’ central finding that the banned procedure was “never” necessary was wrong, Justice Kennedy did not rebuff the finding. Nor did he dwell on the fact that Congress’ putative factual findings in support of the federal abortion ban were littered with errors that the lower federal courts had found significant. Second, Justice Kennedy’s opinion parses the actual text of the Nebraska statute and the federal statute and purports to find differences in language that dictate differing results in the two cases. In particular, the 5-4 majority found the federal statute constitutional because the federal law’s “state of mind” requirement is that the doctor performing the banned procedure intends to violate the law by performing that procedure, and does not do so inadvertently, or without the specific intent to defy the law. This latter justification, however, fails to meet the ruling of Stenberg: states may enact restrictions on abortion only where those restrictions allow exception for the woman’s health. In no other case has the Court held that the state may override a woman’s decision to terminate a pregnancy prior to fetal viability where her health is at issue.[5]

The decision also marks a retreat from the benchmark of viability that has been understood since Casey. Instead, it focuses on a particular procedure, without distinguishing between pre- and post-viability abortions. Moreover, the Court’s affirmation of a pre-viability ban that lacks a health exception makes clear that the Court regards viability as less than the bright-line test it has been since Casey was decided in 1992.

Two other aspects of the decision augur ill for women, the right to choose, and enforcement of our nation’s civil rights laws.

Inconspicuously, the Court shifted two sizeable markers of constitutional jurisprudence. First, it employed the language of rational-basis review to a case involving a woman’s right to choose, instead of the heightened scrutiny it has applied for 35 years both to cases involving abortion and cases involving women as a class. In order to sustain a state restriction on abortion, under this decision, a legislative body need only show that it has a “rational” basis for the restriction. Rational-basis review is the most deferential standard of constitutional review, and its application will mean that states have a far freer hand to regulate abortion without judicial repeal. The majority’s adoption of rational-basis review in a case involving abortion may signal the Court’s willingness to apply the same level of review to other matters of women’s rights, such as discriminatory treatment. The Court has already held that banning the intact dilation and extraction procedure is “rational.”

Second, the Court gave form to what had been an amorphous aspect of its 2005 decision in Ayotte, when it made plain that it would prefer “as-applied” challenges to abortion regulations, as opposed to “facial” challenges. Facial challenges have been the norm for abortion cases, and indeed, for the vast majority of civil rights and civil liberties challenges for a generation. In a facial challenge, the reviewing court looks at the text of the law and forecasts how it could be enforced with unconstitutional effects, and it may strike the law “on its face” without it ever having been applied to a citizen’s detriment. In an “as applied” challenge, by contrast, an individual or class of individuals sues to enjoin a law based on how it would affect them in their particular circumstances. Obviously, as Justice Ginsburg pointed out in her dissent, a woman who needs an immediate medical exception “cannot wait for the judicial process to unfold” in an as-applied challenge, and Roe’s protections are rendered a nullity. There is little reason to hope that the retraction on the breadth of constitutional challenges the Court will sustain will be confined to abortion cases. A hint in Justice Kennedy’s opinion indicates that as-applied challenges may become the norm not only for abortion cases, but for all civil rights and civil liberties challenges that do not involve purely political speech.

Chief Justice Roberts and Justice Alito claimed during their confirmation hearings to be exemplars of “judicial restraint” who would abide by “settled law” (stare decisis). We know that the only thing that has changed in the seven years since the Court decided Stenberg, with its requirement that legislatures not pass laws that harm women’s health, is the composition of the Court.

The Court’s decision paves the way for anti-choice legislatures in the states to enact increasingly stringent abortion laws. The Court has already directed that its decision be applied to Missouri’s late-term abortion ban, and it is not difficult to foresee courts sustaining laws that require mandatory ultrasounds as “rationally” related to the state’s interest in “protecting life,” and validating fetal anesthesia laws on similar grounds, as well as a host of other regulations targeting physicians. In Missouri, in addition to the late-term abortion ban which creates the crime of “infanticide” and sets a sentence of life imprisonment, we have a pre-Roe criminal abortion ban that sets a 20-year sentence for physicians who perform abortions. Roe is vulnerable. It may be a matter of one more challenge, or it may be a matter of one more Supreme Court Justice. With one more judicial appointment, President Bush would not have to bother with an indirect strategy of erosion such as Samuel Alito proposed in 1985. If the Court follows the path it now so evidently is on, states’ rights will become the order of the day, and Roe will be just as dead by a thousand covert erosions as by a direct frontal assault that frankly overrules it.

A pro-choice political process must now protect what the judiciary no longer will.

[1] Executive Director Pamela Sumners is a constitutional lawyer who has participated as primary or amicus counsel in nine Supreme Court proceedings.

[2] Indeed, Blackmun’s own concurring opinion in Casey demonstrates how perilously close Roe had come to extinction in the Casey proceeding and his worry over increasing politicization of Supreme Court nominations attributable to anti-choice activism:

I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light. . . . I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between two worlds will be made.

Planned Parenthood v. Casey, 505 U.S. 833, 943 (1992) (Blackmun, J., concurring).

[3] In this passage, Justice Kennedy speaks of the Court’s decision in Casey as a balancing of fetal interests/the interest of the state in preserving fetal life with the woman’s interests, and suggests that cases decided after Casey had undervalued all factors but the woman’s interest in her health. Justice Kennedy’s opinion is the first to offer such a recasting of Casey.

[4] It was common practice for the Supreme Court to defer to legislative findings of fact when construing statutes until the late 1980s. For example, in the Fullilove case, a case involving set-asides for minority businesses, Justice O’Connor wrote an opinion in which she sharply distinguished between “congressional” findings of fact and the findings of fact of local legislative bodies. Congress’ findings were entitled to greater deference on judicial review than, e.g., the findings of the Richmond City Council. This deferential judicial posture changed in the mid-1990s, during President Clinton’s first term, when the Court moved to buttress its own power at the expense of Congress’. In a series of cases, it judicially gutted Congress’ expansive “commerce clause” and Fourteenth Amendment enforcement clause powers to regulate the states in areas where congressional hearings and fact-finding missions had led it believe there were problems in the states that federal legislation could repair. In these cases, the Court explicitly rejected Congress’ factual findings as not “congruent” and “proportionate” to the harm that Congress sought to remedy or prevent by enacting, and applying to state governments, statutes such as the Religious Freedom Restoration Act, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Age Discrimination in Employment Act. In 1990s and 2000-01 cases, the Court rejected Congress’ findings and substituted its own judgment about whether the problems with discrimination or workers’ rights were serious enough for Congress to have acted to make these laws applicable to the states when the states act as employers, such as when they hire faculty at a state university. Thus, there is substantial recent precedent for wholesale repudiation of congressional findings of fact—where a conservative court wishes to eviscerate “liberal” laws where they intersect with a state’s rights theory of federalism.

[5] The Court’s ruling may have the effect of chilling second-trimester abortions by instilling fear and confusion in doctors and women, not only in regard to performing the procedure but also with regard to Justice Department fishing expeditions through medical records seeking evidence for prosecutions.