The Last Abortion Clinic
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abortion and the roberts court
As both sides of the abortion debate look to the future, the focus is back on the U.S. Supreme Court. There is a new chief justice, John Roberts, and the nomination of Judge Samuel Alito to be associate justice. And on Nov. 30, the Court will hear arguments in Ayotte v. Planned Parenthood of Northern New England -- the first major abortion case in five years. Ayotte has the potential to transform the abortion wars yet again.

FRONTLINE asked representatives from the pro-choice and pro-life movements and two legal observers to discuss what is known about Chief Justice Roberts and Judge Alito's judicial philosophies, how these two Bush appointees might affect the Court's decisions on abortion, and how the Court might rule on Ayotte.

Participants were asked to respond via e-mail to the following four questions:

  • Participating in this discussion were:

  • Jack Balkin, professor of constitutional law at Yale Law School and the editor of What Roe v. Wade Should Have Said
  • Denise Burke, legal counsel, Americans United for Life
  • Lyle Denniston, Supreme Court reporter, SCOTUSblog.com and adjunct professor at the Massachusetts School of Law
  • Nancy Keenan, president NARAL Pro-Choice America

What do we know about Chief Justice Roberts' judicial philosophy and his legal views of abortion?

Lyle Denniston: No one can say with certainty how the chief justice will react to cases involving restrictions on abortions. He has acknowledged that there is a constitutional right to privacy, and he has embraced one of the foundation precedents of Roe v. Wade -- the 1965 decision in Griswold v. Connecticut. If presented with a clear-cut case, challenging Roe directly, it is my guess that he would not support its overruling. He told the Senate Judiciary Committee that a Court would not even get to the validity of the Roe decision until it first decided whether Planned Parenthood v. Casey (1992) was a precedent deserving respect. What he calls his judicial modesty suggests to me that he does not want to start undoing precedents around which many people have arranged their lives.

Jack Balkin: Roberts refused to state at his Supreme Court confirmation hearings whether he would vote to overrule Roe; in his confirmation hearings for a position on the D.C. Circuit he stated that he regarded Roe as settled precedent. That does not tell us very much. Most likely he will not vote to overturn Roe and Casey but will construe these decisions very narrowly.

Nancy Keenan: … Over the course of his career, Roberts has demonstrated hostility towards the right to privacy, reproductive choice, and the right to access reproductive health clinics. While working in the Reagan White House, Roberts referred derisively to the long-established right to privacy and even suggested that it might not exist. Later, as the politically appointed principal deputy solicitor general in the first Bush administration, Roberts was a dedicated architect of its anti-choice legal agenda. During that tenure, he co-authored the government's anti-choice brief in the Supreme Court case Rust v. Sullivan, which gratuitously argued that Roe v. Wade should be overturned. He also led the U.S. government's discretionary intervention as a "friend of the court" in two cases arguing against federal protection for women seeking to access reproductive health services in the face of protestors' blockades.

Denise Burke: Chief Justice Roberts' views on judicial philosophy were expressed at his confirmation hearings. As a court of appeals' judge, Judge Roberts issued no legal decisions involving abortion. At his confirmation hearings, he said he had no agenda. He said Roe v. Wade was entitled to respect as a precedent of the Court.

 

What do we know about Judge Alito's judicial philosophy and his legal views of abortion?

Denise Burke: Judge Alito has a 15-year record as a court of appeals judge. He has written at least three decisions involving abortion, and these are getting public attention and analysis. His decisions reflect a close adherence to Supreme Court decisions on abortion -- approximately 28 cases over the past 32 years -- which are vague and ambiguous and have confused many federal judges over the past 32 years.

Jack Balkin: We know very little as of yet. Alito seems to be a fairly cautious jurist who is also politically conservative. As a Third Circuit judge he applied the Court's precedents more narrowly than the Court itself ended up doing in Casey. That would suggest, as with Roberts, that Alito will not vote to overrule Roe directly but will read the Court's abortion decisions very narrowly, chipping away at them over time.

Supreme Court nominee Samuel A. Alito Jr. served on the three-person Third Circuit Court of Appeals panel that heard the Casey case before it went to the Supreme Court. While agreeing with his colleagues that the other aspects of the Pennsylvania law were constitutional, he dissented from their conclusion, which was ultimately upheld by the Supreme Court, that the spousal notification provision was unconstitutional. Alito argued that the provision did not constitute an undue burden because it "does not create an 'absolute obstacle' or give a husband 'veto power,'" and that the Pennsylvania legislature had provided exceptions for women who would be adversely affected by the requirement.

Lyle Denniston: At this point, the public -- and the Senate -- is more in the dark about Judge Alito's views on the right of privacy and on abortion rights than it is about Chief Justice Roberts'. There are two significant opinions of Alito's on the Third Circuit, suggesting that he is inclined to give the states some leeway in this area, but that Supreme Court precedent must be followed -- at least by lower courts. No one can say at this point how he would react if, as a member of the Supreme Court, he would vote on a direct challenge to Roe. On abortion restrictions as a general matter, I would assume that he would vote to uphold most of those.

Both judges are conservative in their general philosophical outlooks. But both appear to exhibit significant respect for precedent, and neither appears to be willing to cast aside a wide array of Supreme Court precedents, in order to "start over," in the fashion that Justice Clarence Thomas regularly advocates. I would expect each of them to be quite cautious and restrained.

Nancy Keenan: We certainly know what the far right thinks of Alito's legal views. … It's no wonder they are thrilled. They are aware that Alito has voted to uphold greater restrictions on the right to choose than the Supreme Court has upheld. He would probably vote to eviscerate or eliminate the protections of Roe as a member of the Supreme Court. We believe that he would shift the Court in a direction that threatens fundamental freedoms Americans value, including a woman's right to choose, as guaranteed by Roe v. Wade.

In 1991, he was among the judges on the Third Circuit Court of Appeals which heard Planned Parenthood of Southeastern Pennsylvania v. Casey before the case reached the Supreme Court. While the Third Circuit overturned the spousal-notification provision of the statute, it upheld the remaining provisions, including a mandatory delay and a biased-counseling requirement. However, Alito argued that all of the proposed law's restrictions on abortions were constitutional. When the case reached the Supreme Court, Justice Sandra Day O'Connor cast a critical pro-choice vote, and the Supreme Court affirmed the Third Circuit decision to strike down the spousal-notification provision. The Supreme Court explained that the provision did not adequately protect women and their constitutional right to choose. Had Justice O'Connor's opinion been the same as Alito's, the abortion restriction would have been upheld, and most married women seeking abortions would have been forced to notify their husbands prior to exercising their right to choose, even some women who fear significant abuse if they tell their husbands of their decisions.

Also, in his Casey opinion, Alito demonstrated support for a very tough standard in order for a plaintiff to establish that an abortion restriction is an undue burden -- a considerably tougher standard than that which was ultimately set by the U.S. Supreme Court. If adopted by the Supreme Court, Alito's preferred standard would make it very difficult for abortion restrictions to be struck down before they take effect, when real women are threatened with imminent and irreparable harm. As a result, millions of women across the country could effectively lose their reproductive freedom. This term, the Supreme Court will hear Planned Parenthood of Northern New England v. Ayotte in which it will have an opportunity to adopt this tougher standard.

 

How do you think the court will rule in the Ayotte case and why?

Jack Balkin: First, let me explain how the voting works.

Justice O'Connor's vote won't count if she is not on the Court when the case is handed down. It is very unlikely that the decision will be written and delivered before a new justice is confirmed and O'Connor leaves the Court. So the key question is what the initial vote is when the Court meets in conference after hearing the oral arguments in Ayotte. If the Justices split 5-4, and O'Connor is in the majority, then the case will probably be held over for reargument. If the Justices split 6-3 and O'Connor is in the majority, or if she is in the minority, then the case can go forward without her vote. In effect, that means that Justice Kennedy's vote will probably decide whether the case is held over for reargument.

It's very hard to say [what the outcome of Ayotte will be]. To uphold the New Hampshire statute, the Court would have to modify its existing doctrines somewhat. For example, it could limit the situations in which abortion regulations must provide exceptions for health emergencies. The Court could also impose new procedural hurdles to lawsuits that seek to enjoin new abortion statutes. In this case, the justices might hold that the only people who could challenge the New Hampshire statute are minors who are able to show that they face the risk of a health emergency. That, in effect, would make the statute very difficult to challenge. Either approach would allow the Court to uphold New Hampshire's statute, but both would also change the law in significant ways that would affect later cases.

The most important question, however, is not what previous precedents require, but in what direction the members of this particular Court would like to go. Assuming that Judge Alito joins the Court this term, Justice Kennedy will be the swing vote in this case, and so his views will probably determine the outcome. Kennedy was the co-author of Casey; probably he would not vote to support a new set of procedural hurdles that would effectively make Casey irrelevant. However, Justice Kennedy might decide that the New Hampshire statute does not impose an undue burden because the number of women seriously burdened by the lack of a health exception is not very great; in most cases women who do not need immediate emergency care can seek permission from a judge. Refusing to create new procedural hurdles but not requiring a specific statutory exception for health would be a possible compromise result. Whether Justice Kennedy will settle on a solution of that sort or instead will vote to strike down a portion of the law is the big question.

Lyle Denniston: There is no doubt that Justice O'Connor will hear the Ayotte case when it is argued on Nov. 30. … If the Court acts very promptly on the case, say in early January, I would expect it to go ahead and release the decision, even if O'Connor were to cast the deciding vote to resolve a 4-4 split among her colleagues. She would be a full-fledged member of the Court at that time, and the Court would not manipulate the timing of the decision to deal with her expected later departure.

If the Senate seems to be making progress on Alito, and the Court still has not decided the Ayotte case by late December, I would expect it to hold onto the case, but only if there is a 4-4 split among the other justices in the preliminary vote and O'Connor holds the deciding 5th vote. If it is 6-3, or 7-2, there would be no need to hold onto the case for a new hearing after Alito joined. If the case is held, or if there is a delay in deciding it, which there may well be, I would expect it to be ordered reargued; Justice Alito would not participate in a decision in which the hearing was held before he joined the Court.

If O'Connor is on the Court when the case is decided, and thus able to vote, I would expect she would join with Breyer-Ginsburg-Souter-Stevens in finding that a health exception is necessary in a parental notice law for teenager abortions -- provided the Court gets to that substantive issue. I think the Court's decision in the Carhart case indicates the health exception issue, even in the different context of teenager abortion. …

Without hearing the oral argument in the Ayotte case, I would be inclined to think the Court will not reach the substantive issue -- that is, whether there must be a "health exception" in a parental notice abortion law. Rather, I believe that the Court is going to apply to abortion restriction laws the same "facial challenge" standard that it applies to all other legislation -- the so-called "Salerno" standard, that a facial challenge will fail unless a statute could not be enforced constitutionally in any factual circumstance. Once having imposed this standard on abortion restrictions, I would guess that the Court would send the Ayotte case back to lower courts to apply that standard. (I think the same fate may also await the partial-birth abortion appeal filed by the Justice Department.)

Editor's Note: In a "facial challenge," a plaintiff argues a law should be declared unconstitutional in its entirety. The Salerno standard, named after the 1987 Supreme Court case United States v. Salerno, says that a facial challenge can only succeed if there are no situations under which the law is constitutional -- a very difficult standard to prove. The Supreme Court has never applied the Salerno standard to an abortion case.

Nancy Keenan: In Ayotte, we are hopeful that the Court will declare unconstitutional the New Hampshire law at issue, which contains absolutely no exception to protect the woman's health. While the challenged law requires parental notification prior to abortion, in fact, the issue of parental notification or consent will not be before the Court.

In this case, the Court must decide two issues. First, the Court will decide whether to abandon its longstanding requirement that women's health must always be protected when the state regulates abortion. An anti-choice decision on this issue would be devastating. It would basically make politicians the judge of when doctors can and cannot provide care for their patients, and give the green light to states to pass abortion restrictions that contain no exception to protect the woman's health.

Second, … the Court will also decide whether to establish a much tougher standard in order for abortion restriction to be struck down. If confirmed before the Court hands down its restriction in this case, Judge Alito may provide the crucial fifth vote on at least one, if not both, of these issues. …

Denise Burke: The Supreme Court, by at least a 5-4 vote, will uphold the New Hampshire parental notice law. The medical emergency exception in the New Hampshire statute is virtually identical to the medical emergency exception in the Minnesota parental notice statute that the Supreme Court upheld in 1990. The New Hampshire statute fits with controlling Supreme Court precedent involving parental notice of abortion.

Editor's Note: On Jan. 18, 2006, the Supreme Court issued its ruling in the case of Ayotte v. Planned Parenthood of Northern New England and found unanimously that a lower court was wrong to strike down a New Hampshire abortion law requiring parental notice and a 48-hour waiting period before a minor could obtain an abortion because did not provide an exception if the girl's health was in danger. In its ruling, the Supreme Court agreed with the lower court that the law needed such a health exception, but it disagreed that nullifying the entire law was the best solution.

In her published opinion, Justice Sandra Day O'Connor wrote that to do away with the law because it lacked the exception was "the most blunt remedy" to the problem, and she asked the lower court to consider adding an emergency health exception to the statute or to render the law unenforceable in emergency situations. The case has now been remitted to the Federal District Court of Appeals for the First Circuit, which must reconsider the case.

Also under consideration in this case was the Court's standard of review regarding abortion laws, crafted by O'Connor in the 2000 case Stenberg v. Carhart
and used to determine if a law places an "undue burden" on a woman seeking an abortion. However, the Court chose to sidestep the issue of the "undue burden" standard and instead issued a narrow ruling affecting only the lack of a health exception in the specific case at hand.

 

How might these two new Bush appointees -- assuming Alito is confirmed -- affect the court's decisions on abortion issues?

Denise Burke: We hope they will -- at least -- not enlarge the right to abortion and will show greater deference to state legislation and to public governance over the abortion issue at the state and local level. Beyond that, how they "might affect the Supreme Court's decisions on abortion" is simply unknowable at this time.

Lyle Denniston: I would expect the two of them to try to bring some moderation to the Court's internal discussions on the abortion question, to try to take some of the heat out of that arena of legal combat. That does not mean, however, that they would not vote to uphold quite strict restrictions on abortion. As a general matter, I would expect to see the two of them voting together quite often, and I can see them emerging quite early as both intellectual and decisional leaders on the Court. My best guess is that the Court is likely to see the formation of a new "dynamic center," occupied most of the time by the chief justice and Justice Kennedy, much of the time by Justice Alito, and quite a bit of the time by Justice Breyer. I would therefore expect that Justices Scalia and Thomas may find themselves further isolated on the right, and Justices Ginsburg, Souter and Stevens more isolated on the left. I would expect Alito to work very hard, alongside the chief justice and Justice Breyer, to build consensus on the Court.

Jack Balkin: The effect of adding Roberts and Alito to the Court is that Justice Kennedy becomes the swing justice on a wide range of areas, including abortion rights. So Roberts and Alito's votes (assuming that they turn out to be conservatives, as most people predict) are actually less important than Kennedy's. Justice Kennedy voted with the majority in Casey and with the dissenters in Stenberg. That suggests that the Court will uphold more abortion regulations than it would have with O'Connor on the Court, but it will not overturn Roe v. Wade (or Casey). The most likely scenario is a series of cases over the next few years that chip away at Roe and Casey.

Of course, if Justice Stevens (who is well into his 80s) were to retire from the Court, and President Bush were to nominate another conservative justice, the swing justices would become Roberts and Alito. That would probably mean a substantial change in constitutional doctrine, including abortion rights; and Roe would be in serious danger of being overruled.

Nancy Keenan: Both Chief Justice Roberts and Judge Alito have demonstrated a disappointing and limited view of the right to privacy, particularly as it relates to a woman's right to choose. However, although Roberts will likely render decisions hostile to this right, he succeeded one of Roe's original dissenters, Chief Justice William Rehnquist. Therefore, his confirmation to the Court does not alter its overall composition with regard to the issue of choice. It is worth noting, however, that because Roberts is likely to serve for 30 years or more, he could extend by almost two generations one of the anti-Roe votes on the Court.

With Judge Alito, we are confronted with a very different situation. Judge Alito has been nominated to replace a key swing vote on the Court, Justice Sandra Day O'Connor. Of course, Justice O'Connor hasn't always voted how we would like her to. She has been a longtime critic of Roe's trimester framework and a consistent advocate of the "undue burden" standard, which permits many regulations that would have been invalid under the previous standard. However, it is important to emphasize that Justice O'Connor has been essential to protecting the right to choose from even more significant erosion. She has provided the critical fifth vote in numerous pro-choice decisions. She signed the "controlling opinion" in Casey, which preserved the basic constitutional right to chose, and, in 2000, she voted with the majority in the 5-4 Stenberg v. Carhart decision, which struck down Nebraska's abortion ban. Unlike O'Connor, Alito is widely expected to consistently cast anti-choice votes. In doing so, he will provide the swing vote necessary to decimate women's reproductive freedom and endanger women's health.

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posted jan. 19, 2006

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