In honor of the 39th anniversary of Roe v. Wade, I listened to some abortion oral arguments, including Roe, Webster and Planned Parenthood v. Casey. The latter of interesting for various reasons, including the website in question (not SCOTUS itself, which only goes back to last term; why not guys and gals?) includes the opinion announcement, including the Chief Justice reading a summary of his dissent. Each justice but Thomas (though he asked questions back then) asked questions as well, so we got a bit of everything.
The strategy of the Planned Parenthood attorney was to defend the strict scrutiny rule, not defend what she could under the somewhat lower protection that would remain from Webster. The appellate court determined the balance of the opinions there was an "undue burden" standard, rightly judging the ultimate ruling down to striking down (with Judge Alito dissenting) a spousal notification rule. Kenneth Starr was on board to counsel the overturning of Roe and the state to whatever was necessary to uphold the law in its entirety.
The oral argument therefore started with a strange thing -- about seven minutes of the attorney talking about precedent alone, not the specifics of the Casey case itself. Her strategy, especially with an upcoming election season, was a calculated risk and somewhat reasonable, since after all the law had stuff (waiting period and controversial informed consent) that the Supreme Court struck down already in two rulings less than a decade before. The "informed" parental consent law was likely to be upheld, given parental consent was upheld with a bypass already, and was 8-1 (Blackmun, the sole justice left who voted against single parent consent laws, noting it was somewhat more intrusive than the ones upheld). The spousal notification law was likely doomed too, since it had a paternalistic taint. The remaining medical emergency and record-keeping (even Blackmun accepted one of these) also were either of little importance or likely to be upheld.
There was a real chance too of Roe being totally overruled or a low level reasonableness test (which received three votes in Webster, Thomas providing a likely fourth; who knew about Souter?) be put in place that would allow a slew of regulations. Starr didn't want to go there, but could only say there would at least have to be a "life" exception. No justice said as much, but the law at stake in Roe didn't have a rape exception. Starr also basically bs-ed and said that the lower standard was reasonable since the right in question was novel. As the ultimate plurality opinion noted, it surely was not -- both as a matter of choice in family life and as a matter of bodily integrity, it fit into a line of cases. Each case had its own wrinkle, some including third parties, such as educating children or sex lives that are not ultimately limited to the two people in question.
Rehnquist in dissent noted the difference (not anyone except White would have been a fan of the Griswold line generally) was the potential human life. I suggest he ask Roman Catholics who oppose barrier birth control about that. And, why is potential human life a game changer given the breadth of the interest, including when cases protected privacy against things such as convicting alleged felons? Past cases underlined that such questions of private morality could not do the trick, but again, except for White, they weren't a big fan of many of the cases anyways. As to Scalia's appeal to tradition, various cases upheld the right to do things traditionally deemed illegal, down to purchase of contraceptives. After all, there was a federal law against sending them through the mails in place for years.
The strategy was problematic because it made it harder to provide a true answer to provisions even under an intermediate test such as "undue burden." Gender discrimination, for instance, is looked upon with disfavor, even though it is not seen as problematic as race or when fundamental rights are at stake. And, the spousal notification law fell on that ground alone. As the opinions made clear more than previously, abortion as a whole is a matter of gender equality. The "informed consent" aspect had First Amendment problems, particularly when applied (as O'Connor noted) to private parties like the women themselves. It was coerced speech, though -- as the plurality noted -- the rules are looser there when it is a matter of professional regulations, especially if the material in question is "truthful" and not "misleading."
The PP lawyer in summary fashion spoke of the "biased" counselling and the problem of requiring some of it in certain situations (though information on the requirements of father could be omitted for rape victims, though that would require saying you are raped). For instance, a previous ruling struck down a requirement concerning "the unborn child is a human life from the moment of conception," which is is more ideological than "truthful" per se. The lower court here noted, however, that the law here* "is not an attempt to prescribe an orthodoxy in matters of opinion, and the information involved is reasonably related to the state's interest in ensuring that women have relevant information before having an abortion." Justice Stevens noted separately here:
The counseling provisions are similarly infirm. Whenever government commands private citizens to speak or to listen, careful review of the justification for that command is particularly appropriate. In this case, the Pennsylvania statute directs that counselors provide women seeking abortions with information concerning alternatives to abortion, the availability of medical assistance benefits, and the possibility of child support payments. §§ 3205(a)(2)(i) (iii). The statute requires that this information be given to all women seeking abortions, including those for whom such information is clearly useless, such as those who are married, those who have undergone the procedure in the past and are fully aware of the options, and those who are fully convinced that abortion is their only reasonable option. Moreover, the statute requires physicians to inform all of their patients of "the probable gestational age of the unborn child." § 3205(a)(1)(ii). This information is of little decisional value in most cases, because 90% of all abortions are performed during the first trimester [n.7] when fetal age has less relevance than when the fetus nears viability. Nor can the information required by the statute be justified as relevant to any "philosophic" or "social" argument, ante, at 30, either favoring or disfavoring the abortion decision in a particular case. In light of all of these facts, I conclude that the information requirements in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i) (iii) do not serve a useful purpose and thus constitute an unnecessary--and therefore undue--burden on the woman's constitutional liberty to decide to terminate her pregnancy.
It might be a close case here, but are some cases where the "informed consent" rules would be problematic under the First Amendment. Stevens also thought they were unconstitutional here under an "undue burden" test for the right to choose an abortion. The waiting period rule also can be challenged on "undue burden" grounds, especially under various fact situations. Stevens/Blackmun challenged the basic principle, since it presupposed the woman could not choose on her own to decide whether or not to have an abortion without more time. This was a problem both on due process grounds and the equality principle to the extent it was targeted to women particularly.
The rejoinder would be that something fundamental was at stake -- the potential life -- but an additional problem on the other side is that for many locations, if you have to wait a day, it will be more than a day. And, it might be hard and expensive (a matter of equality though wealth discrimination is generally acceptable to the USSC except in limited cases like getting a lawyer) to get to that clinic or hospital, in a few cases the only one in the state, even once. The plurality opinion left it open in particularly burdensome cases that a waiting period might not be acceptable. A few lower cases took that opening while others did not, especially when the law allowed counseling to be done over the phone, which should be quite possible in the age of the Internet more so today.
In general, it along with "informed consent" was deemed a way to ensure the woman is fully informed and had time to think about the decision in question. This has some logic though again the application can be problematic in various respects. Some rule for abortion providers to be required to inform the client in a comprensive way is appropriate, since they are not all on the side of angels but are there to make money providing a particular service (though many providers are comprehensive), but also they should be able to have discretion to fit the counseling to the individual patient. Without forced ultrasounds or talk of "unborn children." These days of detailed warning labels and stock jury charges, flexibility is at times frowned upon, but abortion is particularly (wrongly) singled out in the health area.
As with the gun laws in question in another set of controversial cases, however, the specifics of the matter was not given as much time as might be appropriate. The justices were not free from blame here -- Kennedy and O'Connor was annoyed at the PP lawyer for her strategy, but nothing stopped them from asking her specific questions to force her to change gears. Counsel is often given hypos that ask them to assume things they rather not assume and she could have been asked to defend (if possible) her side under an undue burden test. Her basic sentiment appeared to suggest that they realized that would be a loss as a whole, which might be true to some extent, but as shown by the opinions, not totally so. After all, the plurality spoke of "truthful" consent -- what about ideological or arguably misleading materials? The state attorney was asked about the coerced speech test and O'Connor was annoyed when the lawyer brought up a case involving advertising.
Casey as a whole is a good ruling in that it upheld the right to choose an abortion and provided a defense that is more comprehensive than in place under Roe. The lower level of scrutiny is problematic but generally workable if applied correctly. Of course, the problem with a looser standard is that it won't always be. The "trimester" scheme of Roe was replaced, but changing medical realities made it somewhat outdated as to safety (abortion much safer even into the second trimester) and as long as it did not override health concerns, some state recognition of the embryo/fetus is present throughout the pregnancy. Under Roe, that by itself could not be the purpose of a regulation until after viability, but it could be in cases of funding. This in reality is a more serious burden than talk of "unborn children" during any abortion, even if that is problematic on its own. Not being able to have an abortion at all because Medicaid doesn't pay for one remains much more of an "undue burden." And, the basic message that unborn life has value is a major concern here. Some ways it is shown is problematic, but it's acceptable to take that into consideration before viability.
Interesting listening and reading, the issues will continue on for thirty nine more years and beyond.
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* The informed consent law here [Stevens and Blackmun split on what exactly was problematic] is relatively mild though some of the written materials that must be provided on request might be problematic upon inspection, at times providing factual details that providers here might deem (correctly or not) untrue as well as containing various ideological content that they wish not to provide. For instance, would a wedding provider have to provide material counseling that divorce is sinful and providing a questionable parade of horribles as part of a "full disclosure" law. The relevant section providing information on alternatives:
(i) The department publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that she has a right to review the printed materials and that a copy will be provided to her free of charge if she chooses to review it.As Blackmun notes, the way this is required to be provided can be an issue too, such as some sort of forced slanted film or requiring people to watch an abortion being done. Again, the very term "unborn child" is a red flag for various people; does that specific term have to be used?
"(ii) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials published by the department.
"(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.