Supreme Court Decisions

JUDICIAL APPOINTMENTS AND POLITICS

The federal court system is divided into three major types of courts: District Courts, Circuit Courts of Appeals, and the Supreme Court. There is at least one District Court in each state; they serve as trial courts for lawsuits pertaining to federal law that arise in that state. Circuit Courts of Appeals reconsider rulings from the District Courts, usually by a three-judge panel. Federal lawsuits that have passed through the District Courts and Circuit Courts of Appeals may then be appealed to the Supreme Court—the ultimate authority in interpreting federal law.

Federal judges are not elected; they are appointed and serve lifetime terms. Federal judges are nominated by the president of the United States and then must be approved by a majority of the U.S. Senate before they can be officially appointed. When the president and the Senate are controlled by the same political party, and when they are in agreement about the direction public policy should take, confirmation of a nominee is relatively easy, though the opposition party is sometimes able to use procedural practices, such as filibusters, to delay or prevent the confirmation vote.

Since federal judges are appointed for life, each appointment has a long-lasting influence on the court system and on the lives of Americans. Because the judges are appointed by the president, the nominees usually hold political views that are similar to the president's. Thus, if a president is opposed to abortion, it is likely that he will appoint federal judges who are known to be conservative on that issue.

Jeffrey A. Segal, coauthor of Advice and Consent: The Politics of Judicial Appointments (Oxford, United Kingdom: Oxford University Press, 2005), notes that "most justices appointed by conservative presidents cast a high percentage of conservative votes…. Likewise, most justices appointed by liberal presidents cast a higher percentage of left-of-center votes than their colleagues seated by more conservative presidents."

However, Segal's coauthor Lee Epstein adds, "During the first four years of justices' tenure, their voting behavior correlates at a rather high level with their appointing president's ideology, but for justices with ten or more years of service, that relationship drops precipitously. In other words, liberal presidents appoint liberal justices who continue to take liberal positions for a while, and the same holds true for conservatives. But as new issues come to the Court, or as the justice for whatever reason makes adjustments in his or her political outlook, the president's influence wanes."

Given their prominent role in interpreting the country's laws, federal judges have had a tremendous impact on the issue of abortion. Nowhere is that more true than in the numerous Supreme Court rulings that have dealt with the topic since the 1970s.

ROE V. WADE

On January 22, 1973, the Supreme Court of the United States handed down a landmark decision in the now famous Roe v. Wade legal battle. Their ruling made it legal for a woman and her doctor to choose abortion without restrictions in the earlier months of pregnancy and with restrictions in the later months. The lawsuit was filed on behalf of Norma McCorvey, using the alias "Jane Roe." Her attorneys alleged that the abortion law in Texas (the state in which she lived) violated her constitutional rights and the rights of other women. The defendant was the district attorney of Dallas County, Texas, Henry B. Wade.

Now, more than three decades and many dozens of court decisions later, the essential tenet of the Roe v. Wade decision—that abortion is a constitutional liberty—has not been overturned. However, several court decisions have permitted increasing restrictions and preconditions on a woman's right to an abortion. This chapter will examine the major steps in the Supreme Court's interpretation of the Roe v. Wade decision from 1973 through mid-2005. The cases are presented by issue. A chronology and a brief explanation of major abortion cases can be found in Table 2.1.

The History of Roe v. Wade

In 1969 Texas abortion law, dating back to 1857, permitted abortion only when the mother's life was endangered. McCorvey, a pregnant single woman challenged the constitutionality of this law, using the pseudonym "Jane Roe," to protect her privacy. In Roe v. Wade (410 U.S. 113, 1973) the Supreme Court, in a 7-2 decision, found that a law that prohibited abortion, except to save the life of the mother and without regard for the state of the pregnancy, violated the "due process" clause of the Fifth Amendment. The due process clause of the Fifth Amendment, ratified in 1791, is the Constitution's guarantee that no level of government can arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty, and property. The Fourteenth Amendment takes this guarantee one step further—ensuring protection against infringement (taking away rights) by state governments as well. The high court said the Fourteenth Amendment protects the right to privacy against state action, including a woman's right to terminate her pregnancy. The Supreme Court based this right to privacy on a 1942 case, Skinner v. Oklahoma (316 U.S. 535), which struck down a state law that called for sterilizing people who have been convicted two or more times of "felonies involving moral turpitude" (immoral acts).

In the Roe v. Wade decision, however, the Court noted that, although the right to abortion is guaranteed, the state has legitimate interests in protecting the health of the pregnant woman and the potentiality of human life. The weight given to each of these interests changes as the pregnancy develops.

The Court divided a normal pregnancy into three-month stages (trimesters):

• First trimester—During approximately the first three months, the decision to abort must be left up to the woman and her physician.
• Second trimester—After the first trimester of pregnancy, the state may regulate the abortion procedure in ways necessary to promote the mother's health.
• Third trimester—After the fetus is "viable" (able to survive outside the womb), the state, to protect the potential life of the fetus, may regulate and even forbid abortion, except where necessary to preserve the life or health of the mother.

DOE V. BOLTON

On the same day that the Supreme Court decided Roe v. Wade, it expanded the ruling with Doe v. Bolton (410 U.S. 179, 1973), a lawsuit bought against Georgia's attorney general by a pregnant woman, "Mary Doe," and twenty-three others. Doe had applied for a therapeutic abortion under Georgia law and had been turned down. While reiterating their Roe v. Wade ruling that states may not prevent abortion by making it a crime, the high court observed that states are not allowed to make abortions hard to obtain by imposing complicated procedural conditions. The Court found unconstitutional the following state requirements:

• All abortions must take place in hospitals accredited by the Joint Committee on Accreditation of Hospitals.
• Abortions must be approved by a hospital abortion committee.
• Two consulting physicians must confirm the judgment of the performing physician.

GOVERNMENT SUPPORT OR NONSUPPORT OF ABORTION

Public Funding of Nontherapeutic Abortions

On June 20, 1977, the Supreme Court ruled on three cases concerning women too poor to afford an abortion. One case involved the Connecticut Welfare Department, which had issued regulations limiting state Medicaid benefits for first-trimester abortions to those that were "medically necessary." An indigent (poor) woman, "Susan Roe," challenged the regulations and sued Edward Maher, the commissioner of social services in Connecticut. In Maher v. Roe (432 U.S. 464) the Court held that the Fourteenth Amendment does not require a state participating in Medicaid to pay for needy women's expenses arising out of nontherapeutic (not medically necessary) abortions simply because it pays childbirth expenses. The Court observed that a state may choose to favor childbirth over abortion and is under no obligation to show why it chooses to do so.

Another case, similar to the one in Connecticut, involved the Pennsylvania Department of Public Welfare. A Pennsylvania law restricted Medicaid-funded abortions to indigent women, allowing them only in situations deemed medically necessary by a physician. In Beal v. Doe (432 U.S. 438, 1977) the Supreme Court found that states could exclude nontherapeutic abortions from coverage under their Medicaid programs.

The third case involved a St. Louis policy that prohibited nontherapeutic abortions in the city's two publicly run hospitals. In Poelker v. Doe (432 U.S. 519, 1977) the high court ruled that St. Louis could refuse to provide publicly financed hospitals for nontherapeutic abortions even though it provided facilities for childbirth. Since the policy did not deny women the right to have an abortion, it was consistent with the Constitution. In summary, the Supreme Court found with these three cases that although the state cannot ban abortions, it is under no legal obligation to fund nontherapeutic abortions or provide public facilities for such abortions.

The Hyde Amendment—Constitutional or Not?

The Hyde Amendment was passed by Congress in 1976 and excludes abortion from the comprehensive health care services provided to low-income people by the federal government through Medicaid. The cases of Maher, Beal, and Poelker did not address the issue of whether federal law, such as the Hyde Amendment, or state laws with similar provisions were constitutional. Because most federal funding for abortion was done through Medicaid, cutting federal monies most directly affected the poor. Not surprisingly, the issue of the constitutionality of the Hyde Amendment soon made its way into the nation's courts.

In June 1980, in a 5-4 decision, the Supreme Court, in Harris v. McRae (448 U.S. 297), held that the Hyde Amendment is constitutional. The Court ruled that the funding restrictions of the Hyde Amendment do not infringe on a woman's right to terminate her pregnancy as held in Roe v. Wade. The Court stated:

It simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices …: although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category…. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.

PUBLIC FUNDING OF THERAPEUTIC ABORTIONS

In Harris v. McRae the high court further ruled that a state that participates in the Medicaid program is not required to fund therapeutic abortions if federal reimbursement has been withdrawn under the Hyde Amendment. On that same day the Supreme Court, in three related cases—Williams v. Zbaraz, Miller v. Zbaraz, and United States v. Zbaraz (448 U.S. 358)—held that an Illinois law, with similar funding restrictions as the Hyde Amendment, did not violate the Fourteenth Amendment.

FEDERALLY FUNDED CLINICS CANNOT COUNSEL ABOUT ABORTION AS AN OPTION

The central question of Rust v. Sullivan (500 U.S. 173) was whether government regulations violate the First Amendment if they prohibit federally funded projects from engaging in counseling concerning referrals for activities advocating abortion as a means of family planning. In May 1991 the Supreme Court ruled that providing information was included in this prohibition and that rights provided by the First Amendment (free speech) and Fifth Amendment (preventing government from depriving individuals of their basic constitutional rights) were not infringed upon by this prohibition. Chief Justice Rehnquist stated:

Nothing in them [the Title X regulations] requires a doctor to represent as his own any opinion that he does not in fact hold…. The program does not provide post-conception medical care, and therefore a doctor's silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her.

Justice Blackmun, in his dissenting opinion, saw the case very differently. He stated: "Whatever may be the Government's power to condition the receipt of its largess [generosity] upon the relinquishment of constitutional rights, it surely does not extend to a condition that suppresses the recipient's cherished freedom of speech based solely upon the content or viewpoint of that speech."

Blackmun's dissent continues: "The Regulations are also clearly viewpoint-based. While suppressing speech favorable to abortion with one hand, the Secretary compels antiabortion speech with the other." (This is a reference to the fact that the clinics are required to give prenatal advice.)

STATE RESTRICTIONS ON ABORTION

Since Roe v. Wade, abortion laws generally have been modified by the continual addition of restrictions on the ability to obtain an abortion. Over the years many states have passed statutes stretching the limits of the law, mainly in the areas of informed consent, waiting periods, spousal or parental consent, parental notice, and place of abortions, as well as fetal viability and the disposal of the fetus.

Table 2.2 shows the states that have abortion bans as of 2005. Fifteen states outlaw abortion throughout pregnancy. Twenty-seven states outlaw abortion after twelve weeks with no health exception. These bans contradict 2005 federal law and cannot be enforced.

Informed Consent and Spousal/Parental Consent

Planned Parenthood of Central Missouri v. Danforth (428 U.S. 52, 1976) was the first case heard before the Supreme Court to challenge Roe v. Wade and Doe v. Bolton. Two Missouri-licensed physicians challenged several restrictions of the Missouri Code, which required the following:

• A woman must sign a written consent to the abortion and certify that "her consent is informed and freely given and is not the result of coercion."
• A woman must get a written consent from her husband for the abortion.
• The attending physician must exercise professional care to preserve the fetus's life and health, failing which he or she would be held guilty of manslaughter and liable for damages.
• An unmarried woman under eighteen must get the written consent of a parent or person in the place of a parent to permit abortion.

The Supreme Court, in Planned Parenthood v. Danforth, ruled that during the first twelve weeks of pregnancy an abortion was a matter of interest only to the woman and her physician. The state cannot "delegate to a spouse a veto power that the State itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy," as ruled in Roe v. Wade. Similarly, the Court struck down the parental consent requirement. The Court found the provision requiring the physician to preserve the life and health of the fetus "unconstitutionally overbroad," especially because it covered the first three months of pregnancy when the fetus is not able to survive outside the womb. In addition, the majority also ruled that the state could not prohibit the use of saline amniocentesis or any other proven safe abortion method.

PARENTAL CONSENT

In 1979 a Massachusetts law required parental consent for an abortion to be performed on an unmarried woman under the age of eighteen. However, if either or both of the parents refused, a judge of the superior court could rule on the issue. The Bellotti v. Baird (443 U.S. 622, 1979) case asked whether the law unconstitutionally restricted the right of a minor to have an abortion. In an 8-1 ruling the Supreme Court observed, "A child, merely on account of his minority, is not beyond the protection of the Constitution." The Court declared the Massachusetts statute unconstitutional on two grounds:

First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, whether or not in the pregnant minor's best interests, without affording her an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Parental Notification

Two years later the Supreme Court ruled again on whether a minor, who was fully dependent on her parents, had to inform her parents of her decision to have an abortion (that is, to notify them, not to obtain their consent). Referring to Bellotti v. Baird, the Court, in H. L. v. Matheson (450 U.S. 398), noted the following:

A statute setting out a mere requirement of parental notice when possible does not violate the constitutional rights of an immature, dependent minor … whether or

not to bear a child … is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.

Similarly, in 1990 the Supreme Court in Ohio v. Akron Center for Reproductive Health (497 U.S. 502) upheld a 1985 Ohio statute that requires a physician performing an abortion on a minor to give twenty-four hours' prior notice to at least one parent or guardian. The law provided the minor with a way to bypass her parents (called a judicial bypass) by asking the juvenile court to issue an order that would authorize her to give her own consent. In upholding this part of the statute, the Supreme Court also ruled that states need not guarantee absolute anonymity to the minor seeking judicial bypass.

In 1981 Minnesota passed a law requiring a minor to inform both parents forty-eight hours before having an abortion, even if the parents were no longer married and one parent had little or nothing to do with the minor's upbringing (Subdivision 2 of Minn. Stat. 144.343). Sub-division 2 was mandatory except in cases of parental abuse or neglect. The law, however, also created a judicial bypass procedure. Subdivision 6 allowed a minor who did not want to inform either parent to go to court, be supplied with counsel, and be judged whether she was mature enough to make the decision alone or if an abortion was in her best interests.

The Supreme Court in Hodgson v. Minnesota (497 U.S. 417, 1990) upheld the law requiring minors to notify both parents of an abortion decision because there was a provision for judicial bypass within the law. The high court ruled that "the constitutional objection to the two-parent notice requirement is removed by the judicial bypass option provided in Subdivision 6 of the Minnesota statute." The decision, however, was divided, with several justices agreeing with some parts of the decision but not others.

Justice Stevens, although the author of the majority opinion, disagreed with the key finding of the Court and thought the law to be unconstitutional. He felt that judicial bypass was being misused in the ruling because it was designed to handle exceptions to a "reasonable general rule, and thereby preserve the constitutionality of that rule," and not as a justification to permit an unconstitutional rule to stand. Justice Marshall, agreeing with Stevens, wrote in his dissent:

The bypass procedure cannot save those requirements because the bypass itself is unconstitutional, both on its face and as applied. At the very least, this scheme substantially burdens a woman's right to privacy without advancing a compelling state interest. More significantly, in some instances it usurps a young woman's control over her own body by giving either a parent or a court the power effectively to veto her decision to have an abortion.

In 2003 Planned Parenthood of Northern New England sought a ruling against a 2003 New Hampshire law that required written parental notification forty-eight hours prior to any abortion provided to a minor unless "the attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide required notice." There was also a provision for judicial bypass within the law. In Planned Parenthood of Northern New England, et al. … v. Peter Heed, Attorney General of the State of New Hampshire, the district court found the law unconstitutional because it lacked an explicit exception to protect the health of the pregnant minor and because the exception for abortions necessary to prevent the minor's death was too narrow. An appeals court upheld this ruling in 2004. The Supreme Court heard this case in November 2005 and was expected to issue a decision in 2006.

According to the Planned Parenthood Federation of America, forty-four states have laws requiring parental consent or notification prior to a minor's having an abortion. Of these laws, thirty-three are in effect—not barred due to litigation. Six states and the District of Columbia have no such laws.

Place Restriction, Fetal Development and Viability Discussion, and Fetal Disposal

In 1975 in Connecticut v. Menillo (423 U.S.9), the Supreme Court ruled that a state may require that abortions be performed only by physicians. Such restrictions continued in 1978 when the city of Akron, Ohio, enacted an ordinance titled "Regulations of Abortions," which determined how abortions should be performed in the city. Among the restrictions on abortions were the following:

• All abortions performed after the first trimester of pregnancy had to be done in a hospital.
• The attending physician must inform the patient of the status of her pregnancy; the development of the fetus; the date of possible fetal viability; the physical and emotional complications that may result from an abortion; and the availability of agencies to provide her with assistance and information with regard to birth control, adoption, and childbirth. The physician also must tell the patient about the particular risks associated with her pregnancy and the abortion method to be used.
• Physicians performing abortions must ensure that fetal remains were disposed of in a "humane and sanitary manner."

Violation of any provision constituted a criminal misdemeanor. Many antiabortion groups considered the Akron ordinances model legislation to be followed by other communities wishing to regulate abortion within their jurisdictions.

After mixed rulings in the federal district court and in the federal court of appeals, the case was argued before the Supreme Court. In 1983 in Akron v. Akron Center for Reproductive Health, Inc. (462 U.S. 416), the Supreme Court, in a 6-3 decision, upheld its earlier ruling in Roe v. Wade.

Noting the significant medical improvements in abortion procedures and the concurrent sharp decrease in the number of deaths resulting from late-term abortions, the high court ruled that it was not necessary to have all second-trimester abortions performed in a hospital.

The high court also ruled that the provision regarding what information the physician must give the woman before abortion was unconstitutional:

[The ordinance provision that] begins with the dubious statement that "abortion is a major surgical procedure" and proceeds to describe numerous possible physical and psychological complications of abortion is a "parade of horribles" intended to suggest that abortion is a particularly dangerous procedure…. By insisting upon recitation of a lengthy and inflexible list of information, Akron unreasonably has placed "obstacles in the path of the doctor upon whom [the woman is] entitled to rely for advice in connection with her decision."

Finally, the Supreme Court invalidated the provision requiring a "humane and sanitary" disposal of the fetal remains because it violated the Fourteenth Amendment. Although Akron claimed the purpose of this provision was to prevent the disposal of aborted fetuses in garbage piles, the city was not clear that this alone was the main reason for the provision. The high court agreed with the appellate court that the provision suggested a possible regulation on "some sort of 'decent burial' of an embryo at the earliest stages of formation." The high court concluded that this unclear provision is "fatal" where a physician could be criminally held liable for disposing of the fetal remains.

Dissenting from the majority, Justice O'Connor observed that the trimester concept established in Roe v. Wade now had become virtually unworkable and should be thrown out because the high court was extending the rules that applied in the first trimester well into the second trimester:

Just as improvements in medical technology inevitably will move forward the point at which the State may regulate for reasons of maternal health, different technological improvements will move backward the point of viability at which the State may proscribe [prohibit] abortions except when necessary to preserve the life and health of the mother….

The Roe framework, then, is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the State may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.

O'Connor indicated that potential life exists at any time during the pregnancy. Because the difference between potential life and capable life never has been clearly defined, she stated, "the State's interest in protecting potential human life exists throughout the pregnancy." Although this appeared to be a call for a reversal of Roe v. Wade, Justice O'Connor later turned out to be not as eager to overturn Roe as this dissent would seem to indicate.

A case in 1983 further challenged such restrictions on abortion. The case of Planned Parenthood Assn. v. Ashcroft (462 U.S. 476) concerned a Missouri law requiring the following:

• All abortions after the first trimester must be performed in a hospital.
• Minors must have parental consent or judicial authorization for their abortions.
• Two doctors must be present at the abortion.
• A pathologist's report must be obtained for every abortion.

The Court found the hospitalization requirement to be unconstitutional for the same reasons stated in Akron v. Akron Center for Reproductive Health, Inc. (1983), but the Court found the other restrictions constitutional.

Partial-Birth Abortion

Since 1995 thirty states have adopted laws banning so-called "partial-birth" abortions. The term "partial-birth abortion" is favored by those who oppose the procedure and is the "common name" for the medical procedure known as intact dilation and extraction (D&X), which can be used to end pregnancies in the second or third trimester, generally after twenty weeks of gestation. According to the Centers for Disease Control and Prevention in "Abortion Surveillance—United States, 2001" Morbidity and Mortality Weekly Report, Surveillance Summaries, vol. 53, no. SS-09, November 26, 2004), in 2001 853,485 abortions were performed. Of these abortions, only 1.4% were performed after twenty weeks of pregnancy.

The partial-birth abortion laws in twenty of the thirty states adopting them were ruled unconstitutional when challenged. Nebraska's law was the first to reach the Supreme Court. In June 2000 in Stenberg v. Carhart (530 U.S. 914), the Supreme Court struck down Nebraska's "Partial Birth Abortion Ban" by a narrow margin of 5-4 saying it was unconstitutional because it did not have an exception for protecting a woman's health.

"Partial-birth abortion" is defined in the Nebraska statute as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. For purposes of this subdivision, the term 'partially delivers vaginally a living unborn child before killing the unborn child' means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child."

Attorneys challenging the law as unconstitutional had three arguments:

• These bans are deceptive measures designed to outlaw virtually every type of abortion procedure.
• These laws are unconstitutional because they have no exceptions for women's health, and they criminalize doctors for providing the safest medical care.
• These laws are unconstitutional because they unduly burden a woman's right to choose, thus violating standards set in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

The Court ruled on the last two points—the lack of a health exception (allowing an abortion when "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother") and the undue burden on a woman's right to abortion (created by broad language of the ban, which makes it unclear which methods of abortion are banned). For the majority, Justice Breyer wrote, "Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution's guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose."

For the minority, Justice Thomas wrote, "Casey itself noted that States may 'express profound respect for the life of the unborn'…. States may, without a doubt, express this profound respect by prohibiting a procedure that approaches infanticide, and thereby dehumanizes the fetus and trivializes human life. The AMA [in the American Medical Association Board of Trustees "Factsheet" on H.R. 1122, June 1997] has recognized that this procedure is 'ethically different' from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside the womb. The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body."

In 1995 Congress passed the Partial-Birth Abortion Ban Act, which was vetoed by President Bill Clinton in 1996. In 1997 Congress once again passed the Partial-Birth Abortion Ban Act, coming close to a vote that would override a presidential veto, but not achieving it. The legislation was once again vetoed by President Clinton that same year. Congress then passed the Partial-Birth Abortion Ban Act of 2003. On November 5, 2003, President George W. Bush signed it into law, becoming the first U.S. president to ever place a federal ban on abortion. However, within hours of Bush's signing the bill, a federal judge in Nebraska granted a temporary restraining order, making the law ineffective until its constitutionality—according to the 2000 Stenberg decision—could be determined.

Lawsuits challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003 were brought in three states: New York, Nebraska, and California. The federal judge in San Francisco, the first to render a decision, ruled that the Partial-Birth Abortion Ban Act of 2003 was unconstitutional in three ways: it places an undue burden on women seeking abortions, its language is vague, and it lacks a required exception for medical actions needed to preserve the woman's health. In 2004 federal judges in all three states ruled the legislation as unconstitutional. In July 2005 a Federal appeals court in St. Louis upheld the Nebraska ruling. At that time, the Bush administration planned to ask the Supreme Court to uphold the partial-birth abortion ban.

PROTESTERS AT ABORTION CLINICS

In the more than thirty years since the Roe v. Wade Supreme Court decision legalized abortion, reproductive health clinics and health care providers across the United States and Canada have been under attack by antiabortion protesters. Physicians and clinic workers have been shot; clinics have been bombed, burned down, invaded, and blockaded; and patients have been abused and intimidated. In 1993 the protests turned deadly for the first time when Dr. David Gunn was shot and killed by an antiabortion protester in Pensacola, Florida. In that same year there were twelve arsons, one bombing, and sixty-six blockades against abortion clinics.

Also in 1993 the U.S. Supreme Court heard Bray v. Alexandria Women's Health Clinic (506 U.S. 263), a case in which antiabortion protesters challenged an injunction (ban) against their activities, which included blocking access to health care facilities in the Washington, D.C., area. The injunction being challenged was based on an 1871 civil rights statute that provided protection against private conspiracies, such as the Ku Klux Klan preventing blacks from exercising their freedoms. In this case it was argued that antiabortion activists were preventing women from exercising their freedoms. The judges found that antiabortion protests outside of an abortion clinic were not in violation of the Civil Rights Act because "women seeking abortions" were not a "class of persons seeking protection under the law" and protesters do not show class-based discrimination toward women.

In 1994, to help prevent clinic violence, Congress overwhelmingly passed the Freedom of Access to Clinic Entrances Act (FACE), which was signed into law by President Clinton. FACE is designed to protect both those providing and those receiving reproductive health care services. It forbids the use of "force," "threat of force," or "physical obstruction" to prevent someone from providing or receiving reproductive health services. There are criminal and civil penalties for those who break the law. It is clear that the law has had an effect on certain types of clinic violence (see Chapter 6). However, violence does continue.

Other Supreme Court cases provide for the constitutionality of "buffer zones" between protesters and patients and clinic employees. For instance, in Madsen v. Women's Health Center (512 U.S. 753) in 1994, the court upheld an injunction that forbade protesters from entering a thirty-six-foot buffer zone in front of an abortion clinic and upheld noise restrictions. (However, the Court did not uphold an injunction that prevented protesters from getting within three hundred feet of a clinic or staff residence to approach clinic staff and patients. Also, nonthreatening posters within the thirty-six-foot buffer zone were allowed.)

In 1997 in Schenck, et al., v. Pro-Choice Network of Western New York, et al. (519 U.S. 357), the Court upheld an injunction that forbade antiabortion protesters from entering a fifteen-foot fixed buffer zone in front of an abortion clinic. The protesters had argued that their right to free speech was being violated, but the high court ruled that their free speech was ensured because they could be heard from a distance. Also, the Court allowed "cease and desist" counseling. This meant that as many as two protesters at a time could perform "sidewalk counseling" within the buffer zone, but if the counselors were asked to stop (to "cease and desist"), they had to honor that request and leave the buffer zone. (The Court did not uphold the injunction preventing protesters from coming within a fifteen-foot floating buffer zone of people entering or leaving an abortion clinic. A floating buffer zone around a person moves as the person moves.)

In 2000 in Hill v. Colorado (530 U.S. 703), it was ruled that a Colorado statute does not violate the First Amendment (free speech) and the right to a free press. The statute forbids anyone to knowingly come closer than eight feet to anyone who is within one hundred feet of the entrance of a health-care facility without that person's consent, for the purpose of giving the person a leaflet, offering education or counseling, displaying a sign, or otherwise engaging in protest. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur."

In 2003 the seventeen-year-old NOW v. Scheidler case was decided. The parties to the case were the National Organization for Women (NOW) and Joseph Scheidler of the Pro-Life Action League.

In June 1986 NOW and two abortion clinics in Delaware filed a complaint in federal court against Scheidler and the Pro-Life Direct Action League alleging violations of the Sherman and Clayton antitrust laws that are intended to prevent the formation of monopolies. In 1989 NOW added charges that individuals and organizations that oppose legal abortion violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by engaging in a nationwide conspiracy to shut down abortion clinics through "a pattern of racketeering activity" that included acts of extortion in violation of the Hobbs Act.

In 1991 the case was dismissed on grounds that the RICO law requires the defendants to have an economic motive for their crimes, and an appeal by NOW also was unsuccessful. In 1992 NOW asked the Supreme Court for a ruling on the use of the RICO statute. In 1994 the high court ruled in favor of NOW, allowing it to use federal antiracketeering laws against antiabortion activists who organize others for terrorist activities, such as bombing and forcefully blocking abortion clinics. RICO cannot be used against those engaging in peaceful protests.

After numerous delays, the NOW v. Scheidler trial took place in 1998. The jury found that the defendants were guilty of racketeering and engaged in a nationwide conspiracy to deny women access to medical facilities. However, in 2002 Scheidler asked the Supreme Court to review the decision. In February 2003 the Supreme Court decided 8-1 in Scheidler v. NOW that the RICO statute was used improperly against Scheidler and other antiabortion activists.

RULINGS ON THE FETUS

Saving a "Viable Fetus"

In January 1979, almost six years after the landmark Roe v. Wade decision, the issue of the legal identity of the fetus first reached the Supreme Court. In Colautti v. Franklin (439 U.S. 379) the plaintiff (person who brings an action in a court of law) challenged the provisions of a Pennsylvania law that gave the state the power to protect an unborn child beginning in the sixth month of pregnancy.

This law required physicians performing abortions to save the fetus if they had grounds to believe that the fetus "may be viable." The Supreme Court held that the provi-sions of the law were "void for vagueness" because the meanings of "viable" and "may be viable" were unclear and these provisions interfered with the physicians' proper exercise of judgment. The Court also found the law unconstitutional because it could impose criminal liability on physicians if they were thought to have failed to take proper action.

Life Begins at Conception

In 1986 Missouri passed legislation amending a number of laws concerning unborn children and abortion. It placed a number of restrictions on abortions. The new law:

• Declared that life begins at conception
• Required physicians to perform tests to determine the viability of fetuses after twenty weeks of gestational age
• Forbade the use of public employees and facilities for abortions not necessary to save the mother's life
• Prohibited the use of public funds, employees, or facilities for the purpose of counseling a woman to have an abortion not necessary to save her life

Lower courts struck down these restrictions, but the Supreme Court did not. In 1989 the Court upheld the Missouri law in Webster v. Reproductive Health Services (492 U.S. 490). This ruling was the first case in which a majority of the justices generally opposed abortion, and it revealed the Court's willingness to adopt a more lenient attitude toward state limitations on abortions.

Writing for the 5-4 majority, Chief Justice Rehnquist (joined by Justices White and Kennedy) found nothing wrong with the preamble of the Missouri law, which stated that "the life of each human being begins at conception." The Court observed that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion…. The preamble can be read simply to express that sort of value judgment." The Court chose not to rule on the constitutionality of the law's preamble because they considered it to be merely an abstract proposition.

Relying on Maher, Poelker, and McRae, the Court ruled that "a government's decision to favor childbirth over abortion through the allocation of public funds does not violate Roe v. Wade." In addition, "Missouri's decision to use public facilities and employees to encourage childbirth over abortion places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but leaves her with the same choices as if the State had decided not to operate any hospitals at all."

Perhaps the most controversial aspect of the Missouri law was the requirement that a physician determine the viability of the fetus if she or he thought the fetus might be twenty or more weeks old. There was no debate over whether a fetus is viable at twenty weeks—it is not. The earliest that a fetus is viable is at 23.5-24 weeks of gestational life. However, there could be a four-week error in estimating gestational age. The Court ruled that the testing for fetal viability was constitutional because it furthered Missouri's interest in protecting potential human life.

Chief Justice Rehnquist thought the "rigid" trimester system outlined in Roe was no longer useful, if it ever was. Rehnquist felt the Roe framework, containing such specific elements as trimesters and viability, is not consistent with the concept of a Constitution that supposedly deals with general principles.

Although they came very close, the majority did not overturn Roe v. Wade. Although respecting the preamble of the Missouri law, the chief justice concluded that although the state's interest had been moved back well into the second trimester of pregnancy, Webster did not revisit the Roe rulings.

Justice Scalia, however, believed Roe should have been overturned in this case because most of the justices thought the Roe decision was wrong. "It thus appears," Scalia stated, "that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be."

Justice Blackmun (who wrote the Roe decision) was equally angry but for the opposite reason. In a dissent joined by Justices Brennan and Marshall, Blackmun observed that the "fundamental constitutional rights of women to decide whether to terminate a pregnancy survive, but are not secure."

Although it did not overturn Roe, Webster did mark a significant change in the legal landscape related to abortion. It gave the states more latitude in placing restrictions on abortion and weakened the "viability" and trimester framework that had previously been used to help determine the legality of terminating a pregnancy.

ROE V. WADE IS NOT OVERTURNED

From the "Trimester Framework" to "Undue Burden"

Pennsylvania has had a long history of trying to pass restrictive abortion statutes, which began with the Abortion Control Act of 1974. In 1989, having seen how, in Webster, a more conservative Supreme Court seemed ready to overturn decisions made by an earlier, more liberal Court, the Pennsylvania legislature passed a new Abortion Control Act, which was an amended version of the 1974 abortion law.

Before the Abortion Control Act took effect, five abortion clinics and one physician (representing himself and a group of physicians who provided abortion services) sued the state of Pennsylvania, represented by Governor Robert Casey. The resulting case was Planned Parenthood of Southeastern Pennsylvania v. Casey (505 U.S. 833, June 29, 1992).

The Supreme Court ruling on Casey was a 5-4 split decision, with the majority opinion written by Justices O'Connor, Kennedy, and Souter and joined in part by Justices Stevens and Blackmun. The majority reaffirmed the essential holding in Roe v. Wade : "A recognition of the right of the woman to choose to have an abortion before [fetal] viability and to obtain it without undue interference from the State." After viability, however, the State may prohibit abortion but only if it provides exceptions for pregnancies that may endanger the woman's life or health.

In addition, the Court rejected the trimester framework, which had strictly limited the state from regulating abortion during early pregnancy, and replaced it with the "undue burden" standard. Under the "undue burden" standard, states may put restrictions on the abortion process (throughout the whole pregnancy) as long as they do not have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

The justices upheld Pennsylvania's proposed restrictions—a twenty-four-hour waiting period, informed consent, parental consent, and reporting and record-keeping requirements—except for the spousal-consent requirement. Chief Justice Rehnquist and Justices Thomas, White, and Scalia agreed with the provisions upheld by the majority decision, but they felt the decision did not go far enough. They proposed that requiring spousal consent was a rational attempt to encourage communication between spouses and should be upheld. Furthermore, they felt that a woman's liberty to abort her unborn child is not a right protected by the Constitution and that the Roe decision had been a mistake.

Justice Stevens, however, wrote an opinion supporting the Roe decision and rejecting the twenty-four-hour waiting period and the "biased" informed-consent provision (which required "pro-life" information to be given to the woman seeking an abortion). Justice Blackmun rejected all the provisions of the Pennsylvania law and reaffirmed the constitutionality of the Roe decision.

THE BASIS FOR MAINTAINING ROE

Although conceding that people differ in their beliefs about the morality of terminating a pregnancy, even during its earliest stage, the justices explained that they upheld Roe 's essential holding because their duty is "to define the liberty of all," not to impose their own moral standards:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The justices also maintained the following:

Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition, and so, unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

The Court also upheld the right to abortion because of its obligation to follow precedent. Under the doctrine of stare decisis (literally, to stand by things decided), which requires courts to reach consistent conclusions in cases that raise the same factual and legal issues, a majority of the Court could not justify overthrowing the findings of Roe.