Monday, April 13, 2009

Abortion: The Legal View (Part 2 of 3)

This is the second part of a three-part series on abortion. The order of angles in which I address this topic are The Moral View, The Legal View, and the Political View. There will be some overlap. Click here for Part I.

The Legal View

As a housekeeping matter, I said in Part I that Elder Nelson was not calling for activism by members who seek to overturn the law. Following conversations with others, I realize I may have overstated that claim by implying that the church as a whole would not be in favor of de-legalizing abortion. The church has taken a public stand on many moral issues and there's certainly the possibility that the church would feel the need in the future to advocate laws regulating abortion consistent with the church's moral position.

That said, this post will focus on the legal aspects of abortion. Specifically, I will address several Supreme Court cases that have dealt with the legalization and regulation of abortion, starting with Roe v. Wade. Most of my comments/insights are the result of class discussion and thought. Some details were extracted from Wikipedia.

Roe v. Wade, 1973
Some people mistakenly think that abortion was illegal prior to 1973. In actuality, it was restricted in many states, but not universally illegal. Texas was one of the states where abortion was restricted. It was in that state that Roe v. Wade was born.

The Roe v. Wade case revolved around a Texas law that criminalized all abortion except where necessary to protect the life of the mother. The plaintiff filed suit under the name of Jane Roe (a pseudonym to protect her identity), claiming that she had been raped and should be able to have an abortion. The defendant was Dallas County District Attorney Henry Wade, representing the State of Texas.

When the case reached the U.S. Supreme Court, the justices first considered whether the Texas law infringed upon a Constitutional right. While acknowledging that the Constitution did not explicitly mention a “right to privacy,” the Court held, as it had in previous cases, that the Constitution implicitly guaranteed a right to privacy. They further held that such right of privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

How, according to the Court, does denying a woman the right to an abortion violate her privacy? The court says it’s all about the right to make personal decisions, harking back to a Supreme Court decision from seven years earlier in which the court held that whether or not to use birth control was a private decision.

Concluding that the plaintiff had a constitutional right to an abortion did not end the analysis, however, because a law that infringes upon a Constitutional right can still be valid if the State has a compelling justification for the law. In this case, Texas argued that it viewed life as beginning at conception, and it had a compelling interest in protecting life from the moment of conception onward. To a lesser extent, the State also argued that abortions endangered the health of the mother, and they had a compelling interest in protecting the health of the mother as well.

In response to Texas’s arguments, the Supreme Court said that the State’s interest in protecting life only became compelling at the point of viability (i.e. the point at which the fetus could survive outside of the womb, which the court said fell at the beginning of the third trimester). The Court agreed hypothetically that if meaningful human life really did begin at conception, that would be compelling enough to uphold the Texas law; but noting the varying opinions between doctors, scholars, and religious leaders, the Court said it could not decide when life really begins and therefore had to address the question objectively, by looking at viability. (Some argue that even though the Court stated that it did not want to decide when life begins, it essentially did decide it by focusing on the time of viability).

With regard to the life of the mother, the Court said that the State could not regulate abortion to protect the health of the mother until after the first trimester, because at that point the risk to the woman of having an abortion would be greater than the risk of childbirth (based on available medical evidence).

In other words, after Roe, no state had a right to regulate abortion during the first trimester, and only had the right to regulate it in the second trimester, pre-viability, to protect the health of the mother.

It’s interesting to note that since this case has been decided, medical science has challenged the original notion of when viability begins, as premature babies are surviving outside of the womb at ever-earlier stages.

Planned Parenthood v. Casey, 1992
After Roe, abortion became an enormous political issue. The Roe v. Wade decision itself was heavily criticized, the plaintiff in Roe later regretted her fight for abortion rights and became a huge pro-life advocate who still rallies with pro-lifers today, and making abortion illegal became a fundamental plank of the Republican party in every post-Roe Pesidential election.

Every Republican president thereafter made opposition to Roe a staple of his campaign, and each Republican president vowed to nominate Supreme Court Justices who would be in favor of overturning Roe v. Wade. Between 1973 and 1992, there was only one Democratic President—Jimmy Carter—and he didn’t get to choose any Justices. As more and more of the old Roe majority died out, and as Republican presidents replaced them with seemingly pro-life Justices, it began to seem apparent that the Republican party would eventually prevail in overturning Roe v. Wade.

Thus the stage was set for Planned Parenthood v. Casey in 1992. This case evolved out of a Pennsylvania law which placed a series of restrictions on women who wanted to have abortions. The law provided, except in cases of medical emergency, that no physician could perform an abortion on a married woman without receiving a signed statement from the woman that she had notified her spouse of her decision. Similarly, the Pennsylvania law provided that women under 18 could not receive abortions without parental consent. And women had to wait 24 hours after an initial consultation with a doctor before receiving the abortion. The law also required abortion facilities to file certain reports regarding every abortion that it carried out. The laws were challenged as being unconstitutional, relying on the Court’s reasoning in Roe v. Wade.

By the time this case reached the Supreme Court, there were a whopping eight Repulican-nominated Supreme Court Justices on the court. Everyone knew that Roe was about to be overturned and that states would soon be free to regulate abortion to whatever extent they felt was proper. However, after the arguments had been heard and a vote was taken by the Justices, it appeared that only five Justices were in favor of overturning Roe. These justices were Chief Justice William Rehnquist, Byron White, Antonin Scalia, Anthony Kennedy, and Clarence Thomas; they all favored upholding all the abortion restrictions of the Pennsylvania law and in effect reducing Roe to dead letter.

Though there were only five of nine Justices who were in favor of overturning Roe, it was still a majority. So Chief Justice Rehnquist began writing his opinion, explaining the legal reasoning for overturning Roe and placing the issue of abortion rights within control of the states, just as it had been before Roe.

And then Justice Kennedy changed his mind.

Justice Blackmun, who was in favor of upholding Roe, was up late one night writing his planned dissent to Rehnquist’s majority opinion when he received a note from Justice Kennedy. Justice Kennedy wrote that he had been persuaded by fellow Reagan-Bush justices Sandra Day O’Connor and David Souter to join in a secret opinion that reaffirmed Roe. Justice Blackmun's would-be-dissenting opinion then became a concurrence in line with the new majority. When Chief Justice Rehnquist found out what had happened, he wasn’t pleased, but he couldn’t prevent the result. His majority opinion became the dissent.

The new principal opinion (the one written by Justice O'Connor and joined by Kennedy and Souter) relied heavily on the precedent of Roe v. Wade. It has been speculated that since many people pessimistically viewed the Court as making decisions based on personal opinions rather than the authority of the Constitution, several Republican Justices took this opportunity to demonstrate that though they were personally pro-life, they felt it was necessary to honor past decisions when such decisions were based on sound legal judgment (even though the Court has often overturned its own decisions both before and after this case).

In what turned out to be a complex intersection of concurrences and dissents, the ultimate law that came out of Planned Parenthood v. Casey discarded the trimester framework analysis from Roe in favor of a new undue burden test shaped by Justice O’Connor. The ruling of Roe was upheld in most other respects. From Wikipedia: “Applying this new standard to the Pennsylvania Act under challenge, the plurality struck down the spousal notification requirement, stating that it gave too much power to husbands over their wives and would worsen situations of spousal abuse. The plurality upheld the State's 24 hour waiting period, informed consent, and parental consent requirements, holding that none constituted an undue burden.”

When the decision was announced, the pro-choice crowd had to scrap the protest speeches they had prepared. But when the dust settled, even they were dissatisfied with the decision because it lightened (albeit only slightly) the restrictions that had been placed on states by Roe.

Gonzales v. Carhart, 2007

This case was about a Congressional law which banned a certain type of partial-birth (aka late term) abortion. The details of the procedure are quite gruesome and I don’t want to explain them here, but it is important to note that the law at issue did not ban all types of partial-birth abortion—only one specific type that Congress felt was particularly inhumane. Congress had chosen not to ban other types of late term abortions because such procedures were sometimes necessary to save the life of a mother.

The Supreme Court upheld the law, and several Republican justices took the opportunity to reiterate that they were still in favor of overturning Roe and leaving the legislation and regulation of abortion to the states.

Modern Trends
There are currently four Justices on the Supreme Court who are in favor of overturning Roe, just as was the case in 1992. These four Justices are not going anywhere anytime soon as far as we know, but it’s unlikely they will gain a fifth vote in the near future, which means that those in favor of overturning Roe are and will likely be in the minority for some time.

Today, some state legislatures are trying to get around the Supreme Court’s decision in Roe v. Wade while still eliminating unnecessary abortions. The North Dakota House approved a bill that defines life as beginning at conception, thus ensuring that a state has a compelling enough interest to regulate abortion from Day 1. (That bill is not yet a law and might not stand a good chance of becoming one.) North Dakota has also taken other interesting steps in the legislature to help encourage life over abortion.

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