Judge Sotomayor and Abortion on Demand: A Tutorial

 
 

Millions of Americans believe that states can prohibit abortion in the third trimester, yet current Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth. How did Americans become so confused on this issue and how did the Supreme Court end up where it has?

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Does Judge Sonia Sotomayor know the law as well as a future Supreme Court justice ought to know it? If a discussion during her confirmation hearings with Senator Tom Coburn (who is not a lawyer, but rather an experienced obstetrician) is any indication, it would seem not.

Sen. Coburn: You've been asked a lot of questions about abortion. And you’ve said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

Judge Sotomayor: I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman's constitutional right. That's my understanding of what the state of the law is.

Sen. Coburn: So let me give you a couple of cases. Let's say I'm 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can't handle a child with that. Would it be legal in this country to terminate that child's life?

Judge Sotomayor: I can't answer that question in the abstract, because I would have to look at what the state of the state's law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been—that approach to looking at a woman's act has—was changed by Casey. The question is, is the state regulation regulating what a woman does an undue burden? And so I can't answer your hypothetical, because I can't look at it as an abstract without knowing what state laws exist on this issue or not. . . .

The judge’s answer to the senator’s question was miles wide of the mark, and indicated either that she does not know the truth about the constitutional law of abortion in our country, or that she is willing—for whatever reason—to mischaracterize the matter before a national audience. Senator Coburn had an opening here that cried out for exploitation, but he passed it by for the moment.

The next day, however, he returned to this subject, taking Judge Sotomayor through another brief exchange and pointing out to her that “the truth is, ever since January 22nd, 1973 [the day Roe was decided], you can have an abortion for any reason you want in this country,” and that the stage of one’s pregnancy at the time does not matter at all. The senator was perhaps too kind to the judge, when he might have leaned in and said with quiet intensity, “Why don’t you know this?”

But the sad truth is that too few Americans know this, even those with legal credentials. In 1994, Kathleen Sullivan, a prominent scholar of constitutional law who went on to be dean of Stanford Law School, wrote in The New Republic that Roe v. Wade left it open to states to “criminalize abortion” in the “last three months of pregnancy,” and even to “treat it as murder” when a pregnancy had passed the point of fetal viability. Sullivan was quite wrong—as I pointed out in a letter to the magazine that she did not attempt to rebut—but the myth she propagated has remarkable staying power.

When I pointed out, in a blog post at the American Principles Project, how wrong Judge Sotomayor was in her answer to Sen. Coburn’s hypothetical, a commenter on the site challenged me to back up my statement that the legal regime in America is one of abortion-on-demand throughout the nine months of pregnancy. This tutorial is my reply to such doubters.

First we must turn to Roe v. Wade, the case that draws many thousands of protesters to the steps of the Supreme Court each January 22 in the March for Life. As John Hart Ely, a pro-choice liberal who like Kathleen Sullivan went on to be Stanford’s law dean, wrote a few months after Roe, the ruling was “bad constitutional law, or rather . . . it is not constitutional law and gives almost no sense of an obligation to try to be.” Indeed, one of the most notable things about Roe, as then-Justice William Rehnquist said in dissent, was how much it smacked of “judicial legislation.” In a summary of the Court’s holding that fit that description perfectly, Justice Harry Blackmun wrote:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

This is the famous “trimester framework” of Roe. And the focus of all misleading commentary that seeks to portray Roe as “moderate” or a kind of “compromise”—between the claims of women seeking abortions and the claim of any state seeking to protect prenatal life—is on those words in Blackmun’s paragraph (c) that say the state may “even proscribe” abortions after viability. Surely, some say, this refutes any notion that Roe meant “abortion on demand” throughout the entire course of pregnancy. The fact that, “in appropriate medical judgment . . . the preservation of the life or health of the mother” might justify exceptions being made to such a proscription did not seem to obviate the prohibitory power of the state altogether.

A few lines after the passage above, however, Justice Blackmun pointed his readers to another case decided that same day, Doe v. Bolton. Whereas Roe concerned a Texas statute broadly prohibiting abortion and dating from the mid-nineteenth century, Doe was a dispute over a Georgia statute only five years old at the time, and reflecting the reformist compromises meant to ease abortion prohibitions that were under way in many states in this period. In Roe—again, immediately following the framework above—Blackmun said “that opinion [in Doe] and this one, of course, are to be read together.”

Let us do just that. Overturning Georgia’s tight standards on when threats to a woman’s health would justify an abortion, Justice Blackmun wrote in Doe that a physician’s

medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

When such “factors” as these—“emotional, psychological, familial, and the woman’s age”—are all declared to “relate to health” in the “medical judgment” of the doctors who perform abortions, then it may be fairly said that the rule in Blackmun’s paragraph (c) in Roe’s trimester framework is swallowed up by its exception. If a woman would be distraught by the prospect of becoming a mother, if her boyfriend is threatening to leave her, if she would have to cut short her progress through college, if she simply declares to the abortionist “I don’t want this baby”—any reason the doctor will accept is a perfect and complete shield from the state’s prohibition of post-viability abortions, no matter how close to a timely childbirth the mother is, and no matter how good the prospect for a successful birth with a healthy mother and child. In practice, it will suffice if the woman gives the physician no reason whatsoever. He is in the abortion business, and she has to come to him for the “procedure”; plainly her “emotional” or “psychological” state is such that she associates the termination of her pregnancy with a restoration of her “health.” If an official inquiry were to be made by state authorities after the abortion, the physician need cite no more than his “medical judgment” to this effect.

But in fact, no such inquiries have been seriously undertaken anywhere in the country for many years now. The medical and law enforcement communities alike have understood almost from the beginning that abortion on demand was the new legal standard since January 1973. While battles have raged in legislatures and courts over a variety of restrictions on the performance of abortions—regarding the number of physicians who must be present for later-term abortions or whether they must take place in hospitals, spousal or parental consent or notification requirements, informed-consent requirements, public funding of abortions, or the use of particular methods of abortion, such as the grisly partial-birth method—there has never, since Roe and Doe were decided, been any way for a state to prohibit any abortions outright merely by virtue of when in pregnancy they occur or what reasons women give for seeking them.

I make no claim here that Justice Harry Blackmun was intent on bringing about this result when he wrote the majority opinions in both Roe and Doe—though it was in fact their immediate result, and he was certainly content to maintain it afterward. And in the rarefied atmosphere of the Supreme Court, this practical impact was not noticed by all right away. Chief Justice Warren Burger, for instance, concurring in Doe, disputed the “sweeping consequences” predicted by the dissenters, Justices Byron White and William Rehnquist, and wrote: “plainly, the Court today rejects any claim that the Constitution requires abortions on demand.”

But by the time he retired, in 1986, in the last abortion case in which he participated (Thornburgh v. American College of Obstetricians and Gynecologists), Chief Justice Burger confessed he had been sadly mistaken. Dissenting from a ruling that struck down even the mildest regulations of the abortion right after viability, he persisted in saying that “every Member of the Roe Court rejected the idea of abortion on demand,” but he now understood that Roe and Doe had an internal logic of their own that was just being played out, and “regretfully concluded that some of the concerns of the dissenting Justices in Roe . . . have now been realized,” and that “we should reexamine Roe.”

Didn’t that reexamination come in the 1992 case of Planned Parenthood v. Casey? That decision famously jettisoned the Roe trimester framework, replacing it with a less rigid (and therefore even more judicially manipulatable) “undue burden” standard, under which “a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Did that mean that the Court breathed new life into the power of the state during the period after viability? Here is what the joint opinion for the Court by Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter had to say about that subject:

(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

(e) We also reaffirm Roe’s holding that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Roe v. Wade, 410 U. S., at 164-165.

But page 165 of Roe was precisely where Justice Blackmun had also said that its decision must be “read together” with the companion Doe case. Thus Casey silently incorporated Doe’s “anything goes” standard for “health of the mother” that had prevailed since 1973. In an opinion notorious for its mendacity and arrogance in numerous respects—from its treatment of the doctrine of precedent to its vision of the Court’s position in American life—this was one of the most dishonest moments. The language saying the state could “even proscribe” abortions after viability, simply quoted now from Roe, no longer even had the excuse of naïveté that it had had nineteen years before. Abortion on demand through the whole course of pregnancy survived Casey quite unscathed. Not so the many tiny victims of the Supreme Court’s jurisprudence.

If there was any doubt of this, the decisions in the two partial-birth abortion cases in the last ten years should dispel it. In Stenberg v. Carhart in 2000, the Court struck down by a 5-4 vote a Nebraska law prohibiting the method of abortion known variously as “partial-birth” and “intact dilation and extraction,” in which a fetus is drawn through the birth canal feet-first, then its skull punctured and its brains evacuated, the skull then being collapsible and the delivery of the dead child completed. The method has been employed both pre-viability and post-viability, but in any case always late in pregnancy, when the fetus’s head is already quite large.

Nebraska, like other states, had banned only this particular method of abortion and not post-viability abortions in general, leaving other methods of late-term abortion in place that remained legal, and even permitting partial-birth abortion when it was deemed a medically necessary method to save the mother’s life. Nonetheless, the Court’s opinion by Justice Stephen Breyer held the state law unconstitutional largely because it lacked an additional exception for the health of the mother. Justice Breyer paid lip service to the state’s alleged power to ban abortion outright after viability—subject to life-and-health exceptions—but it was evident that he did not take it seriously. All the focus of his opinion was on whether the partial-birth method was safer than other methods in some circumstances for a woman who was going to have an abortion anyway; he never seriously considered the question whether a woman’s health needs were required to justify the obtaining of the abortion per se.

Every state in the Union already knew better, of course, since the days of Roe and Doe, than to attempt an actual prohibition of all post-viability abortions to which there was an exception only for real threats to physical health. Now, in a line of cases that had been litigated over nearly three decades and culminated in Stenberg, it was clear that the Supreme Court would also be the arbiter of abortion technique, with the paramount consideration being the liberation of abortionists from any hindrance on those methods that would most reliably and conveniently produce a dead child, even when that child might live if treated as a patient brought to birth. The right announced in Roe, it was now plain, was an absolute right of a pregnant woman to the death of her unborn child, no matter when or why.

The Congress responded to Stenberg by passing a federal ban on partial-birth abortion in 2003. The federal act, while more precise in its language, closely tracked the Nebraska law overturned in 2000, making an exception for cases in which the procedure was deemed medically necessary to save a woman’s life, but no exception for the sake of “health.” Members of Congress were not fools; they knew that thanks to Roe and Doe, “health” was an “exception” that became the rule, and thus a ban that made such an exception would amount to no ban at all.

In 2007 the federal act was upheld, by a 5-4 vote, in Gonzales v. Carhart, the essential difference being made by the arrival of two new justices on the Court: Chief Justice John Roberts, replacing the reliably anti-Roe William Rehnquist, and Justice Samuel Alito, replacing Sandra Day O’Connor, the chief architect of Casey’s “undue burden” standard. Again the absence of a post-viability “health” exception was at the center of the litigation. Justice Kennedy, who had been one of the authors of the Casey ruling but a dissenter in Stenberg, held for the majority in Gonzales (sometimes called Carhart II) that it was appropriate to defer to Congress’s fact-finding expertise on the contested medical question whether other methods of post-viability abortion were safer for women than the partial-birth method. Above all, it was important that “alternatives are available to the prohibited procedure.” What was never in question in Kennedy’s opinion, however, was the Roe-Doe-Thornburgh-Casey principle that whenever a woman seeks an abortion, no matter how far along in her pregnancy and no matter her reasons, she is entitled to have one by some method that is reasonably safe for her health. The government’s “interest” in the lives of unborn children was reduced, in Justice Kennedy’s opinion, to the wan hope that by banning this particularly gruesome method of abortion, the federal law might induce some women to rethink their choice for abortion and instead go through with childbirth—an effect that might be brought about thanks to the controversy over the procedure itself, which helped raise awareness of the humanity of the unborn child.

It is clear, then, even from this limited victory for pro-life legislation, that the Supreme Court as presently constituted will not countenance an actual legislative ban on a whole class of abortions, defined either by their timing or by the reasons women give for wanting them. Many pro-life activists are in the habit of referring to “abortion on demand,” but may be familiar only with the broadest legal outlines of the phenomenon. Close students of the Court’s rulings over the last 36 years—and many of those close students are also in the pro-life ranks—can assure those activists that the phrase is perfectly accurate.

Pro-choice advocates generally know these facts quite well too, either in basic outline or in detail. They have an interest in knowing, for the citadel of abortion law is their bastion to defend, every way they know how. It is only those Americans who take but a passing interest in the abortion issue who fall into the trap of believing the repeated but wholly insincere rhetoric of the Supreme Court about the power of legislatures to prohibit post-viability abortions. And it is not in the interest of pro-choice activists that Americans in general come to understand the radical nature of the abortion-on-demand regime, which they would surely reject by strong majorities. It is certainly not in the interest of President Obama, who is devoted to maintaining this regime but desires to project a “moderate” image.

Which brings us back to Judge Sotomayor. Judging from her record on the board of the Puerto Rican Legal Defense and Education Fund, she is every inch a pro-choice advocate, and she has been a federal judge for 17 years. She has no excuse not to know what Sen. Coburn was getting at. She has no excuse not knowing that abortion on demand has been the law of the land since January 22, 1973. She has even less excuse covering that up in a nationally broadcast congressional hearing, if she does know it.

Matthew J. Franck is professor and chairman of political science at Radford University and a 2008-09 visiting fellow in the James Madison Program at Princeton University.

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