I would like to begin this post with a caveat: considering the volatile state of the SCOTUS, what I discuss as the 'state of the law today' is merely that, the state of the law today. But, as I will detail later, it is unlikely that it will change very soon or much if at all if things stay as they are presently as far as the political and judicial scenes go. With that caveat in mind, allow us to delve into the 'fundamental right to an abortion'.
Starting with the history, let me tell you how we got to having a fundamental right to abortion. It all started with a little case called Griswold. *cue music from Waynes World*
In 1965, the Supreme Court decided Griswold v. Connecticut. Connecticut had a law forbidding people from buying contraceptives. A married couple brought a lawsuit against the state. The Court, not content with merely stating that this couple (and others so situated) had the right to buy contraceptives and the state should stay out of the realm of prohibiting contraceptives, granted upon the people of the United States a very general 'right to privacy.' Justice Douglas 'found' this right in what we call a penumbra - in other words, he took the 1st, 3rd, 4th, 5th, 6th, 9th, and 14th Amendments, and concluded that, since the Founders (and those who created the 14th Amendment) had carved out areas of life that could not be subject to governmental intrusion, the Founders had also intended to carve out a more general right to privacy. The Court has since backed away from the idea of a penumbra (mostly because many on the Court have ridiculed the idea as outlandish), but have clung to the idea that there is a very general right to privacy, usually addressing it under the 14th Amendment's Due Process Clause, recognizing Substantive Due Process (which is really a topic for another day because it's rather convoluted).
Now, especially if you know nothing about substantive due process or the process of constitutional law, you may be asking yourself, so what?
Griswold was wrongly decided for these reasons:
1. There is no generalized right to privacy in the Constituion.
A. As much as we/some people might want it, it's not there - you can read the
entire document and you will never find it.
B. The Founders gave no indication that they ever intended a generalized right to
privacy.
1. In fact, one of the best arguments about this is the fact that they carved
out narrower exceptions to the general right of the government to intrude
into your life. Granted, there are a lot of these exceptions and soe of
them are quite broad, but none of them is as broad as the right of privacy
has become.
2. Substantive Due Process (the idea that there are some unenumerated rights that the government cannot infringe upon at all) is:
A. A ridiculous contradiction
1. Due process has the connotations of process
2. The Due Process Clause of the 14th Amendment itself never requires the
states not to infringe upon the rights of the people, it states that the
states must give due process if the states decide to infringe upon those
rights.
B. Judicially created, and completely arbitrary since it does not include rights
it should include if it is to be intellectually honest.
From Griswold come Griswold's progeny - Eisenstadt v. Baird, Skinner v. Oklahoma, Poe v. Ullman, etc. (Many of these were correctly decided as to the result - none of them were correctly decided as a matter of process.) From this line of cases comes Roe v. Wade, probably the Court's most infamous case (at least until Planned Parenthood v. Casey). There's the history of Roe. It is a case that comes from a line of cases with an original faulty reasoning.
However, even if we concede that /Griswold is not only good law, but was also correctly decided, we do not have to give up the argument on Roe.
Roe set up a three-trimester system to deal with abortion rights:
in the first trimester, the government cannot abridge the right to an abortion; in the second trimester, the state can abridge the right to abortion only to protect the health of the mother; in the third trimester, the state finally has an interest in the fetus and can ban the right to an abortion, so long as it includes the requisite exceptions.
Planned Parenthood v. Casey, decided in 1994 did away with the trimester system, because it was unworkable. In Casey, the Supreme Court, through a three justice panel and an opinion written by Justice O'Connor, acknowledged that Roe was not very well reasoned. Instead of overturning the decision, the SC declared that too many women had relied upon Roe for family planning and declined to overturn the case. The state of the law since Casey is thus: a state (or the federal) government cannot enact a law that puts an 'undue burden' on a woman's right to an abortion. Far from applying the usual standard of review when dealing with a fundamental right, the Court applied a stricter standard. Now, if the law is considered to put an undue burden on the right, it is unconstitutional (the spousal notification law at issue in Casey was an unde burden, but parental notifications are apparently not, just as a not terribly helpful example).
In Casey, the SC set forth several factors for overturning incorrectly decided precedent and decided that Roe should not be overturned.
The factors, and how the decision in Casey fails each, are as follows:
1. Workability - The SC itself realized in Casey that the system set up by Roe was unworkable. Not only did the SC realize and acknowledge this, the Court set up a different system, one based upon a due burden standard (a standard never before seen in fundamental rights cases).
2. Reliance - The SC basically decided the case based on this element by declaring that too many people had relied upon the decision (as noted above). However, the SC failed to consider other options to this reliance element, namely, that the legislature could do things that would make reliance a non-factor, such as make the effective date one year in the future. This would give everyone a chance to get used to the idea that abortion on demand would no longer be around.
3. Whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine - okay, I'll give the Court this one, but only partially. The Roe decision had, before Casey been restricted and qualified by further laws and decisions, but perhaps not to the extent that it would have completely undermined the central holding.
and 4. Whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. I give no quarter to the Court on this factor. Facts had changed, or at least our knowledge of facts had changed. The trimester system didn't work because the fetus was found to be viable much in advance of when the Court said that it was. There had been advances in technology that allowed us to see and hear the heart beat much sooner than we had previously believed it existed. All these facts proved that there was life before the first trimester and that abortion stopped a life.
One of the basic problems with Roe, and by extension, Casey, on a purely abortion related issue is that the Court set up a completely unworkable system with very little medical expertise. The Court is equipped to decide cases dealing with rights, but is not equipped to decide either when life begins or whether further scientific advances will create the necessary technology to tell whether the fetus is 'viable.'
Now, those are some of the issues with the abortion rulings. We're not finished, though, because, that is only the state of the law as it stands today. We have two new members of the court, prompting a bit of judicial vote-counting.
Currently on the court are 4 members who are adamantly opposed to overturning Roe, its progeny, or restricting in any way a woman's right to an abortion (Justices Ginsberg, Breyer, Stevens, and Souter). There are 2 current members who have, at one time or another, stated that Roe should be overturned (Justices Scalia and Thomas). There are two new members (Justices Alito (who wrote the appellate dissent in Casey) and Roberts (whom is assumed to be a conservative in favor of overturning Roe). So far, this seems to pit the Court 4-4 on the abortion issue. But wait, you say, there are no ties on the Court! That's right - and don't think I've forgotten the recalcitrant 9th member of the Court. Then, there is Justice Kennedy. Now, Justice Kennedy has voted on both sides of the abortion issue. He helped write the opinion in Casey, but he voted against allowing partial-birth abortions in Stenberg v. Carhart, writing his own dissenting opinion stating that he did not question the essential holding in Roe.
Okay, well, this has gone long enough. Next time, I will be addressing how the debate has been commandeered and skewed. This topic will also address what happens if Roe is overturned.
No comments:
Post a Comment