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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, December 23, 2015

Doe v. Bolton

As noted, this is the companion case to Roe v. Wade, which will be of special concern in 2016. The case is useful in that it dealt not with merely a nearly absolute ban but various restrictive regulations. Today, e.g., the biggest abortion case since Planned Parenthood v. Casey was set for oral argument in early March (Women's History Month). One overlap here was that both women eventually came strong against women, "Doe" (Sandra Cano) actually cited in a later opinion (as noted by the pro-choice guest in a nice bit of evenhandeness):
While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae.
Both women had troubled lives and have every right to decide for themselves, changing their views as they deem fit (Cano has since died), just as those might the other way.  It is not really "exceptionable" that a woman might come to regret choices here. Some regret having a child or getting married and so forth.  The problem with Justice Kennedy's citation here, aside from the specific evidence cited, was that the answer was not to take what might be the safest procedure away. It was fully to inform.

Some against abortion challenge people with the apparently unanswerable rejoinder "what if your mother had an abortion?!"  But, that is trite. Sandra Cano's own daughter, for instance, came out as pro-choice some years back.  Her birth mother accused the lawyers involved in her case of using her.  Don't know the details but the issue at hand was her right to decide; she didn't have to choose to have an abortion.  The gospel account even has Mary agreeing to being the mother of Jesus.  Now if some teenage girl gets a visit from an angel (or even Angel) and such, she might feel compelled to go along, but think that is still pretty notable. 

As noted, the Georgia law was a "reform" measure with the following exceptions if the abortion was done by a licensed physician:
(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or
(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or
(3) The pregnancy resulted from forcible or statutory rape.
 There is also a limited self-abortion criminal provision:
woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth.
Note this would not bring into its ambit the Tennessee woman who is currently being prosecuted for an abortion performed at twenty-four weeks though the exact details are not clear.  As noted, the Supreme Court gave a broad definition of "health," one that honestly is broader than intended by the words since it is unclear what abortions would not be covered here.  This is not the same as Justice White's "whim" comment, since the fact is that in any given case a woman will have a serious reason with health implications coming from a forced pregnancy.

The first specific regulation addressed was in effect a TRAP law -- for no particular neutral reason, JCAH accreditation was required for abortion procedures. This was struck down using rational basis scrutiny. The opinion then made a more questionable ruling about licensing rules as a whole, drawing the line at the first trimester -- this "trimester scheme" application would probably have been better left to another day.  Likewise, singling out abortions for necessary committee approval and two doctor involvement was struck down. This too was a limited holding applying the right to privacy consistently.  And, the opinion leaves open neutral licensing rules for physicians, even those that perform abortions. 

Next, a residency requirement was struck down, again using neutral rules arising from the Privileges and Immunities Clause. The dissents said absolutely nothing about these issues. If a person thinks Georgia can narrowly allow abortions to balance "fetal life" and the interests of the woman, as one can deny killing a dog even to practice First Amendment rights (though few would wish to and the balance of rights are far from the same, to cite just one of many problems with John Hart Ely's law review article), they still at least have to justify discriminating against out of state residents and so forth.  This is not an all or nothing affair.

The final point, which rose more bluntly in Medicaid funding cases, was the argument the laws discriminated against the poor (some litigation also noted de facto racial discrimination). Let it be noted that Ely, who on policy and later precedent grounds supported a right to choose (though at times sounding conflicted about it), deemed the funding bans to be blatantly discriminatory in an invidious sense. Some states deemed it so or a violation of the right to choose generally under state law. Anyway, in this case, the Court found the claim addressed by overturning the provisions (or applying "health" broadly) on other grounds. 

[On a technical level, injunctive relief was denied in both cases, but this was assumed to be moot now that the Supreme Court itself declared what the Constitution demanded.  This issue arose again in respect to same sex marriage -- the reach of lower court rulings was a continual controversy but (with a bit of dissent) the Supreme Court opinion decided the question.]

So, the formulation of complicated doctrinal rules (the trimester scheme) probably could have been avoided in these two cases. However, the matter would have arose soon enough as more and more abortion regulations arose. A 1976 case, e.g., addressed standing, abortion methods, consent provisions and so forth. General principles could address some of these things, including the vagueness of certain "viability" laws, but in time some more specific doctrine would have developed. This would include just where to draw the line and what fairly mundane medical procedures might be acceptable (e.g., an abortion related procedure might be truly neutral but take place in the first trimester).  But, more time could have been useful there, including a full briefing on the viability line itself. 

There was going to be split opinions on such questions but this is normal regarding constitutional matters.  It's quite possible, e.g., to note a forced ultrasound (especially if a probe has to be inserted inside the body) is unconstitutional especially if a slanted pro-life text has to be provided while perhaps a specific regulation of facilities early in the pregnancy was allowed.  There would have to be a reasonable purpose to such a regulation and it might be a bad idea as a policy matter.  Likewise, something like a waiting period might split reasonable minds, even if I think Justice Stevens' discussion on the point in Casey is convincing. 

As with speech and guns, how broad the rights in question reach is a reasonable debate.  But, at some point, even those wary about the subject can admit there is a problem.  Banning people even to keep their legal in their home state "assault weapon" in a locked box / unarmed while traveling through the state, e.g., should be a problem even to someone who hates guns.  And, I hope eventually at least one of the liberals understands the point in some opinion just like ideally Kennedy can figure out some race conscious educational program he thinks is okay, since after all he claims to do so in theory.  A middle ground is possible.

Perhaps, that sounds naive, but it actually is.

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