Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/abort5.asc

Text File | 1993-08-01 | 61KB | 1,032 lines

    The Chief Justice's narrow conception of individual
liberty and stare decisis leads him to propose the same standard
of review proposed by the plurality in Webster.  States may
regulate abortion procedures in ways rationally related to a
legitimate state interest.  Williamson v. Lee Optical Co., 348 U.
S. 483, 491 (1955); cf. Stanley v.  Illinois, 405 U. S. 645,
651-653 (1972).  Post, at 24.    The Chief Justice then further
weakens the test by providing an insurmountable requirement for
facial challenges:  petitioners must `show that no set of
circumstances exists under which the [provision] would be valid.'
Post, at 30, quoting Ohio v. Akron Center for Reproductive
Health, 497 U. S., at 514.  In short, in his view, petitioners
must prove that the statute cannot constitutionally be applied to
anyone.  Finally, in applying his standard to the
spousal-notification provision, The Chief Justice contends that
the record lacks any hard evidence to support the joint opinion's
contention that a large fraction of women who prefer not to
notify their husbands involve situations of battered women and
unreported spousal assault.  Post, at 31, n. 2.  Yet throughout
the explication of his standard, The Chief Justice never explains
what hard evidence is, how large a fraction is required, or how a
battered women is supposed to pursue an as applied challenge.

    Under his standard, States can ban abortion if that ban
is rationally related to a legitimate state interest "a standard
which the United States calls deferential, but not toothless."
Yet when pressed at oral argument to describe the teeth, the best
protection that the Solicitor General could offer to women was
that a prohibition, enforced by criminal penalties, with no
exception for the life of the mother, could raise very serious
questions.  Tr. of Oral Arg. 49.  Perhaps, the Solicitor General
offered, the failure to include an exemption for the life of the
mother would be arbitrary and capricious.  Id., at 49.  If, as
The Chief Justice contends, the undue burden test is made out of
whole cloth, the so-called arbitrary and capricious limit is the
Solicitor General's new clothes.

    Even if it is somehow irrational for a State to require a
woman to risk her life for her child, what protection is offered
for women who become pregnant through rape or incest?  Is there
anything arbitrary or capricious about a State's prohibiting the
sins of the father from being visited upon his offspring?

    But, we are reassured, there is always the protection of
the democratic process.  While there is much to be praised about
our democracy, our country since its founding has recognized that
there are certain fundamental liberties that are not to be left
to the whims of an election.  A woman's right to reproductive
choice is one of those fundamental liberties.  Accordingly, that
liberty need not seek refuge at the ballot box.

IV

    In one sense, the Court's approach is worlds apart from
that of The Chief Justice and Justice Scalia.  And yet, in

another sense, the distance between the two approaches is short
"the distance is but a single vote."

    I am 83 years old.  I cannot remain on this Court
forever, and when I do step down, the confirmation process for my
successor well may focus on the issue before us today.  That, I
regret, may be exactly where the choice between the two worlds
will be made.


    Chief Justice Rehnquist, with whom Justice White, Justice
Scalia, and Justice Thomas join, - concurring in the judgment in
part and dissenting in part.

    The joint opinion, following its newly-minted variation
on stare decisis, retains the outer shell of Roe v. Wade, 410 U.
S. 113 (1973), but beats a wholesale retreat from the substance
of that case.  We believe that Roe was wrongly decided, and that
it can and should be overruled consistently with our traditional
approach to stare decisis in constitutional cases.  We would
adopt the approach of the plurality in Webster v. Reproductive
Health Services, 492 U. S. 490 (1989), and uphold the challenged
provisions of the Pennsylvania statute in their entirety.

I

    In ruling on this case below, the Court of Ap- peals for
the Third Circuit first observed that this appeal does not
directly implicate Roe; this case involves the regulation of
abortions rather than their outright prohibition.  947 F. 2d 682,
687 (1991).  Accordingly, the court directed its attention to the
question of the standard of review for abortion regulations.  In
attempting to settle on the correct standard, however, the court
confronted the confused state of this Court's abortion
jurisprudence.  After considering the several opinions in Webster
v. Reproductive Health Services, supra, and Hodgson v. Minnesota,
497 U. S. 417 (1990), the Court of Appeals concluded that Justice
O'Connor's undue burden test was controlling, as that was the
narrowest ground on which we had upheld recent abortion
regulations.  947 F. 2d, at 693-697 ( `When a fragmented court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may
be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds' (quoting Marks v.
United States, 430 U. S. 188, 193 (1977) (internal quotation
marks omitted)).  Applying this standard, the Court of Appeals
upheld all of the challenged regulations except the one requiring
a woman to notify her spouse of an intended abortion.

    In arguing that this Court should invalidate each of the
provisions at issue, petitioners insist that we reaffirm our
decision in Roe v.  Wade, supra, in which we held
unconstitutional a Texas statute making it a crime to procure an
abortion except to save the life of the mother.  We agree with
the Court of Appeals that our decision in Roe is not directly
implicated by the Pennsylvania statute, which does not prohibit,
but simply regulates, abortion.  But, as the Court of Appeals
found, the state of our post-Roe decisional law dealing with the
regulation of abortion is confusing and uncertain, indicating
that a reexamination of that line of cases is in order.
Unfortunately for those who must apply this Court's decisions,
the reexamination undertaken today leaves the Court no less
divided than beforehand.  Although they reject the trimester
framework that formed the underpinning of Roe, Justices O'Connor,
Kennedy, and Souter adopt a revised undue burden standard to
analyze the challenged regulations.  We conclude, however, that
such an outcome is an unjustified constitutional compromise, one
which leaves the Court in a position to closely scrutinize all
types of abortion regulations despite the fact that it lacks the
power to do so under the Constitution.


    In Roe, the Court opined that the State does have an
important and legitimate interest in preserving and protecting
the health of the pregnant woman, . . . and that it has still
another important and legitimate interest in protecting the
potentiality of human life.  410 U. S., at 162 (emphasis
omitted).  In the companion case of Doe v. Bolton, 410 U. S. 179
(1973), the Court referred to its conclusion in Roe that a
pregnant woman does not have an absolute constitutional right to
an abortion on her demand.  410 U. S., at 189.  But while the
language and holdings of these cases appeared to leave States
free to regulate abortion procedures in a variety of ways, later
decisions based on them have found considerably less latitude for
such regulations than might have been expected.

    For example, after Roe, many States have sought to
protect their young citizens by requiring that a minor seeking an
abortion involve her parents in the decision.  Some States have
simply required notification of the parents, while others have
required a minor to obtain the consent of her parents.  In a
number of decisions, however, the Court has substant