The Battle over Abortion and Contraception, Part One: How It's Playing Out in the States and in the Supreme Court

By ELAINE CASSEL

Tuesday, Mar. 14, 2006

Last week, the governor of South Dakota -- a state with only one abortion facility and the fewest abortions in the country -- signed a law banning all abortions except when the life of the mother (or serious risk of substantial and irreversible impairment of a major bodily function) is at stake. The South Dakota law states that human life begins at fertilization and that any termination of that "unborn human being" outside the legal safe harbor is punishable as a felony. Other states -- including Mississippi, where abortions are almost as rare as they are in South Dakota--have similar laws pending.

In the old days, cases got into court because real people suffered real harm. Laws were passed because real people had real issues. But these laws are being passed for a different reason: the states have a religious agenda, and they hope the Supreme Court - with the addition of Chief Justice Roberts and Justice Alito - will be friendlier to their claims.

Will it? That depends, in large part, on Justice Kennedy - as I will explain. I will also offer an argument that may help to convince Justice Kennedy, in these cases, to vote against some of the more noxious state anti-abortion laws.

Abortion Rights Cases Before the Roberts Court: Recent Decisions

On January 18, in Ayotte v. Planned Parenthood of Northern New England, the Roberts Court declined to invalidate a Vermont abortion statute in its entirety because it lacked a health-of-the-mother exception to the requirement of minor parental consent. The unanimous decision was written by Justice Sandra Day O'Connor - then still on the Court. In the end, the solution the Court reached - remanding the case to the state so the legislature could add such an exception-pleased anti-abortion forces because the statute stands but for that flaw. Chief Justice Roberts -no fan of abortion rights -- strongly favored the remand solution during oral argument in the case.

On February 28, the new Roberts Court decided the case of Scheidler v. National Organization of Women. Although by then, Justice Samuel Alito had replaced O'Connor on the Court, he did not play a part in the consideration or decision of the case. The decision - written by Justice Stephen Breyer -- was unanimous, but, in my view, wrong. In Scheidler, the Court declined to apply federal anti-racketeering and anti-extortion laws to anti-abortion protestors - such as the Army of God and other extremists -- who threaten abortion clinics with physical violence and intimidation. These laws are written broadly, to target patterns of interstate violence and coercion; they should have been held applicable here.

Now, powerless to call upon these federal laws, abortion clinics are left to try to obtain injunctions limiting protesters' activities under the 1994 Freedom of Access to Clinic Entrances Act. Unfortunately, though, this law is virtually useless. The Army of God and other anti-abortion activists don't announce their intentions to block access at a given time and place, so going to court beforehand is simply not an option.

No wonder, then, that anti-abortion forces claim that Scheidler was a huge victory for them. We can expect patients and staff in clinics to continue to fear for their lives and safety.

Column continues below ↓

A Way to Win Over Justice Kennedy? Evidence of Anti-Women Animus Behind the Laws

Recently, the Court announced it would review the 2003 federal Partial Birth Abortion Ban Act (PBABA). Like the statute at issue in Ayotte, the federal PBABA lacks a health-of- the mother-exception. Vikram Amar discussed how Justice Kennedy may vote in this particular case in detail in a recent column. Here, my intention is to sketch Justice Kennedy's basic positions on abortion rights, and offer a way in which he may be convinced to side with pregnant women and their doctors.

The question whether Roe v. Wade should be overturned was squarely put to the Supreme Court in 1992, in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Court said no - and among those who voted this way, was Justice Kennedy. Also among those voting against overturning Roe was Justice O'Connor - and she also offered a revised test for determining when abortion laws are unconstitutional, which asks whether they impose an "undue burden" on the pregnant woman's right to abortion under Roe.

Later, however, in Stenberg v. Carhart, Justice Kennedy dissented from the majority's decision to invalidate the Nebraska law outlawing the so-called "partial birth" abortion procedure. In his dissent, Kennedy, joined by then Chief Justice Rehnquist, focused on the state's right to ban a particular procedure it found loathsome. Kennedy focused on the fact that other abortion methods existed and thus suggested that this ban would not be an "undue burden" on the pregnant woman.

As Amar's column notes, Justice Kennedy may feel differently about the federal government's PBABA, than he did about Nebraska's, for a number of reasons. But Stenberg shows, at a minimum, that Justice Kennedy is not properly labeled a liberal on abortion rights.

Still, certain abortion laws may bother Justice Kennedy greatly: the kind that reveal passage out of animus to women.

By analogy, consider Justice Kennedy's 1996 opinion in Romer v. Evans. There, the Court confronted an amendment to Colorado's state constitution purporting to outlaw bans on discrimination against gays and lesbians. Writing for a 5-4 majority, Kennedy concluded that the law was a violation of the Equal Protection clause of the Fourteenth Amendment.

Especially important to Justice Kennedy was the very essence of equal treatment under the law: "Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance."

Also disturbing to Justice Kennedy was evidence that the Colorado Amendment grew from hostility towards gays. He wrote, "Amendment 2 . . . in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it."

There is also a strong case to be made that state laws like South Dakota's come from hostility to women - and in particular, to women's sexuality - and invidious stereotypes about women.

Consider, for instance, that such laws are typically paired with laws limiting the availability of contraception - especially the kind of emergency contraception (such as the morning-after pill) that can prevent a woman from having to undergo an abortion when regular contraception fails. When states opt to limit contraception and ban abortion, women must choose between childbearing and abstinence; men need make no such choice.

Consider, also, that many states mandate that adult women hear lectures, receive booklets, and endure waiting periods prior to choosing an abortion. These are women whose doctors have informed them of the procedure's risks sufficiently that they can give the "informed consent" the law requires for the medical procedure of abortion.

Finally, laws like South Dakota's, on their face, sacrifice women's physical health and force a woman to carry a baby to term even if her health is in danger (the health exception in South Dakota's law is so stringent as to be virtually synonymous with the life-of-the-mother exception). And they sacrifice her mental health and force her to bear a child conceived by rape or incest.

Underlying These Laws are Themes of Religious Fundamentalism

Are these laws really all about protecting women and children? Or do they come from an invidious belief that women, unlike men, aren't competent to make their own decisions? This belief is rooted in fundamentalist Christian doctrine that holds that women--while they may be equal to men in God's eyes--are subordinate to men, just as men are subordinate to God.

If you think children's welfare is really what's at issue, consider, finally, that a recent study published by the Washington Post showed how the states with the strictest abortion laws also had the poorest services for indigent women and their children. As for South Dakota, the New York Times recently noted that it has the highest child poverty rate in the country.

Again, religious doctrine cannot be forgotten. James Dobson, whose Focus on the Family is the preeminent fundamentalist Christian voice in America today, dispenses his child-rearing advice with reminders that parents have, by divine right, absolute authority over their children and must battle their children into submission to their will.

The voters who passed Amendment 2 in Colorado did not see gay people as equal. (And the religious right has antipathy to them as well.) Legislatures that pass laws without a meaningful "health-of-the-mother" exception, or who pair anti-abortion laws with anti-contraception laws, do not see women as equal, either.

Let's hope Justice Kennedy sees the parallel.


Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004. Her website, Civil Liberties Watch, is published under the auspices of Minneapolis, Minnesota's City Pages.

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