Abortion and the Supreme Court

1. Abortion and the Supreme Court March 1, 2006

2. Griswold v. Connecticut 1965

3. The Law • A Connecticut law, passed in 1879, restricted the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” • It was mostly not enforced. • People still brought the law to court in various cases, but it was always upheld on a technical basis.

4. Estelle Griswold, of Planned Parenthood of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale, opened a birth control clinic in Connecticut to try the courts again. • They were arrested, tried, and found guilty. • They appealed the conviction, but the ruling was upheld until Griswold took her case to the Supreme Court. • The Court ruled 7-2 that a Connecticut law making contraceptives illegal was unconstitutional based on a “right to marital privacy.”

5. Concurring Opinion • Justice Douglas: The Bill of Rights does not directly include a right to privacy, but it is alluded to in the “penumbras” (“an area in which something exists to a lesser or uncertain degree”- dictionary.com) of other parts of the constitution. • Justice Goldberg: Ninth Amendment – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” • Justice Harlan: Privacy should be protected as stated in the due process clause of the Fourteenth Amendment

6. Dissenting Opinion • Justice Black: A “right to privacy” does not exist in the Constitution. • Did not agree with the other Justice’s interpretations of the Ninth and Fourteenth Amendments. • Justice Stewart said it was “an uncommonly silly law,” but was still constitutional.

7. Consequences • Stated that the Constitution included a “right to privacy.” • Set a precedent for other Supreme Court rulings about sexual privacy. • These other rulings, including Roe v. Wade (1973), were made based on the due process argument from Griswold v. Connecticut. • Due process means the government will uphold the entirety of a person’s legal rights at all times.

8. What each side says… • Planned Parenthood’s take on Griswold v. Connecticut: “While challenges remain in the struggle to provide universal access to birth control, the court's 1965 decision in Griswold granted constitutional protection to the life-enhancing work of Planned Parenthood and other advocates of reproductive freedom in the U.S.” • Opponents to the ruling, who argue there is no “right to privacy” in the U.S. Constitution, see Griswold v. Connecticut as a case of “judicial activism”, judges attempting to “legislate from the bench” instead of interpreting the constitution.

9. Roe v. Wade "We need not resolve the difficult question of when life begins." ~Justice Blackmun 1973

10. Background • Texas law stated that abortions could be performed to save the life of the mother, and only on this condition • “Roe,” a single pregnant woman, challenged this position in the district court of northern Texas

11. Texas Results • Abortion statutes were declared void, as infringing on ninth and fourteenth amendment rights • Roe was granted declaratory relief (clarification of her rights), but not injunctive (court order, executory process), and the case was appealed

12. Supreme Court • Held that state criminal abortion laws were unconstitutional, particularly in light of the “Due Process Clause” which protects right to privacy • Permitted states to define “physician” as someone licensed by the state and prohibit unlicensed individuals from performing abortions • Declared that the state has an interest in protecting both the mother’s life and “potential” life, and that these interests become more or less compelling at different points in the pregnancy • Established the three trimester system

13. Three-Trimester System • 1st Trimester: the decision to abort may be left up to the woman and her physician • 2nd Trimester: states can regulate abortion in reasonable ways as it relates to the health of the mother • 3rd Trimester/viability: states can regulate or prohibit abortion except in cases where the mother’s life is in danger

14. Doe v. Bolton Health: “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” ~Justice Blackmun 1973

15. Background • Georgia law prohibited abortion except on medical advice to preserve the life or health of the mother, when the fetus would likely be born defective, or when the pregnancy had resulted from rape • Doe challenged Georgia law after she was denied an abortion at eight weeks because her pregnancy did not fall into any of the above categories

16. Georgia Results • The court granted declaratory, not injunctive relief, deciding that the conditions stipulated for procuring an abortion were unconstitutional as violations of privacy and personal liberty • Held that the state had an interest in the protection of “potential independent human existence,” and this interest… • “justified regulation through 26-1202 (b) of the ‘manner of performance as well as the quality of the final decision to abort.’” • Doe appealed, seeking broader relief

17. Supreme Court • Held • state criminal abortion laws were unconstitutional • the Georgia residence requirement was invalid • the required acquiescence by two copractitioners was also invalid, on grounds that it had no bearing on the patient’s needs • the requirement to perform abortions in a hospital setting was invalid

18. Broader Implications • “Health” of the mother, already a vague term, became vaguer • By virtue of this, abortion is legal during all nine months of pregnancy for essentially any reason, as long as it can be declared necessary for a woman’s “health”

19. Planned Parenthood of Southeastern Pennsylvaniav. Casey June 29th, 1992

20. The plaintiffs: • 5 abortion clinics • a class action of physicians who provide abortions, • 1 independently represented physician • The suit: Certain provisions of the Pennsylvania Abortion Control Act of 1982 unconstitutional after Roe v. Wade

21. Pennsylvania Abortion Control Act of 1982 • Informed Consent • Doctors must provide information about the health risks of abortions • Spousal Notification • Parental Notification • 24 waiting period prior to abortion

22. District Court Ruling: • All four provisions declared unconstitutional • Third Circuit Court of Appeals: • All provisions upheld except spousal notification • Alito dissents from the invalidation of the spousal notification regulation • Supreme Court urged to overturn Roe…

23. Supreme Court DecisionPlurality opinion: O’Connor, Kennedy, Souter 1. Roe upheld • “grounded in the general sense of liberty” 2. Overturns Roe’s trimester formula • Viability now recognized as 22-23 wks (2nd trimester) • Viability: when the state’s interests outweigh a woman’s rights and abortion may be banned

24. Supreme Court Opinion, cont… 3. Defined a new standard for abortion regulations: “undue burden” • “a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus” 4. Upheld: Informed consent Parental notification 24-hour waiting period 5. Struck: Spousal notification requirement

25. Stenberg v. Carhart 2000

26. Background • In 1997, Nebraska placed a ban on partial-birth abortion (D&X) • Physician Leroy Carhart sued Nebraska Attorney General Don Stenberg, seeking declaratory judgment that the ban violated the “undue burden” standard set in Casey • A federal district court and the Court of Appeals ruled in favor of Carhart; Stenberg appealed to the Supreme Court

27. Supreme Court Arguments • Noting the lack of a health exception in the ban, Stenberg argued that partial-birth abortions were never necessary • The Court questioned whether the ban was broad enough to ban other types of abortion, which would violate the “right to privacy” in Roe and Casey

28. Supreme Court Ruling • In a narrow 5-4 ruling, Nebraska’s ban was struck down • Thus, all other state laws banning partial-birth abortion were overturned

29. Supreme Court Opinion • Majority: ban violated “undue burden” standard and hence was unconstitutional • Dissent: American Medical Association had concluded D&X was very different from other types of abortion and bordered on infanticide • Scalia pointed out the decision was perfectly logical, following from Casey; he denounced “undue burden” as illegitimate

30. Gonzales v. Carhart 2006

31. The issue • The Supreme Court will review the July 2005 ruling by the 8th Circuit Court of Appeals that overturned the federal Partial-Birth Abortion Ban Act on the basis of Stenberg • The ban does not have a health exception, but it does allow an abortion if it were necessary to save the mother’s life

32. The question • The Court will answer: • “Whether, notwithstanding Congress’s determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.”

33. Health exception? • Congress cited in its bill a panel from the American Medical Association, which could not find any circumstance where partial-birth abortion would be necessary to protect the mother's health • Instead, it said partial-birth abortions can pose health risks, including cervical damage, trauma to the uterus, and hemorrhaging

34. The Court at present • The Court will hear the case during its next term, beginning in October of this year • Decision may come next December or January • Five current justices have voted in favor of Roe: Breyer, Ginsburg, Souter, Stevens, and Kennedy • Scalia and Thomas have voted to overturn Roe, and Roberts and Alito have not voted on it yet

35. Sources • http://en.wikipedia.org/wiki • http://www.plannedparenthood.org • http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZS.html • http://biotech.law.lsu.edu/cases/reproduction/bolton.htm