Welcome Back, SCOTUS! Did Someone Say Abortion?

Hello, readers. I’d like to wish you all a Happy Return of the Supreme Court, the same way that one might wish a friend Happy Thanksgiving or Happy Hanukkah—it’s just that important to me. I’d also like to wish you all a Happy Antonin Scalia Day; in case you missed it, he was interviewed by New York Magazine and was very candid about his views. Buzzfeed has already compiled a “highlight reel” of sorts for the interview, but it is worth reading in its entirety for an open conversation with the Court’s “firebrand justice” (so named by New York Magazine). It has provided me with new insights into his views, with which I often disagree. Finally, let me wish you a Happy Ruth Bader Ginsburg Day! The justice, one of my personal heroes, was featured in a piece by the Washington Post this weekend. The article focuses loosely on whether she plans to retire any time soon, as she enters her twenty-first term at the Supreme Court, but also gives many reasons why I think she’s so amazing. (Did you know that she parasailed on the French Riviera while there on a summer teaching job with Scalia?!) Check the two articles out; they’re both engaging views into the normally-private lives of Supreme Court justices.

Now then, time to turn back to the Supreme Court’s 2013-2014 docket. I hope that you have been following the Court’s upcoming cases, but, in case you haven’t had time to do your research, I’m here to help. Two very comprehensive articles—one over at Slate and another two at the New York Times (one on October 6 and one on October 7)—have put together a list of the most “hot-button” cases, some (or many!) of which I will certainly be covering within the next few months. The New York Times claims, “No case yet promises the high-profile splash of rulings on national health care, voting rights or same-sex marriage, but in many of them, long-established Supreme Court precedents may be at risk.” That last phrase makes me nervous—if there’s one thing that the Roberts court loves doing, it’s demolishing “long-established Supreme Court precedents” (Citizens United, anyone?).

Two cases in particular stand out to me, and they are both related to abortion: Cline v. Oklahoma Coalition for Reproductive Justice and McCullen v. Coakley. Neither case has a date set for oral argument; however, both cases have been granted certiorari and, when the Court eventually issues decisions about these cases, both cases will have serious ramifications for a woman’s right to choose and abortion laws in the United States.

Please refer to the SCOTUSblog information pages and the Slate/New York Times articles that I’ve linked above for background on these cases—when Cline v. Oklahoma Coalition for Reproductive Justice and McCullen v. Coakley are argued in front of The Nine, you can be sure that I’ll cover them as thoroughly as possible. Right now, though, I think it is necessary for me to provide some background information on current “abortion precedent” that will influence the Supreme Court’s decision-making process once these two cases come down the pipeline.

For a first foray into Supreme Court cases that address the concept of a right to abortion or a “right to privacy,” a controversial right that was famously established in the landmark 1965 case Griswold v. Connecticut, check out an NPR article from 2005 entitled “Supreme Court’s Evolving Rulings on Abortion.” This article, published on the same day that Ayotte v. Planned Parenthood of New England was argued, provides a comprehensive look at all major abortion cases that were decided between 1965 and 2000. It covers cases such as Griswold, the famous and controversial 1972 case Roe v. Wade (which used Griswold’s “right of privacy” to strike down state-level anti-abortion laws), Planned Parenthood v. Casey (a 1992 case that created a new standard for invalidating anti-abortion laws: the law must create an “undue burden” on the mother), and Stenberg v. Carhart (a case from 2000 that struck down a ban on partial-birth abortions).

However, because the NPR article was published in 2005, it’s missing two important Supreme Court abortion decisions that have been issued since then. First up is Ayotte v. Planned Parenthood of New England, argued on November 30, 2005 and decided on January 18, 2006. In this case, Planned Parenthood of New England brought suit against New Hampshire because of a then-recently passed law which required that “parents be notified before their minor daughter ha[d] an abortion.” Planned Parenthood argued that this law violated the “undue burden test” that was laid out in Planned Parenthood v. Casey, and that “an exemption in the law for abortions necessary to prevent the death of the mother, but not for those abortions necessary to protect merely her health, was unconstitutionally narrow” (from Oyez).

A federal district court struck down the law in its entirety, and the First Circuit Court of Appeals affirmed the court’s decision, but in a unanimous decision, the Supreme Court reversed the decision. Justice Sandra Day O’Connor penned the opinion, stating, “The lower court’s decision to invalidate the entire statute based on its unconstitutional results in this small percentage of cases [i.e. instances where the mother’s life was in danger], however, was unnecessary” (from Oyez). She further clarified this decision by explaining, “So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment [upholding the law] and an injunction prohibiting the statute’s unconstitutional application [i.e. requiring that parents be notified of a daughter’s abortion when the daughter’s life is in danger]” (from the opinion itself). By focusing the argument on whether a court of law could invalidate an “entire statute based on its unconstitutional results in this small percentage of cases” (from Oyez), Justice O’Connor sidestepped the issue of abortion and, as was her practice as the Court’s swing vote, found a middle-of-the-road solution for a controversial Constitutional problem.

A year later came another challenge to abortion laws, this time as a direct response to Stenberg v. Carhart (the case that upheld partial-birth abortions). Gonzales v. Carhart,  argued on November 8, 2006 and decided on April 18, 2007, was a case brought as a direct challenge to the Partial-Birth Abortion Ban Act, passed by Congress and signed by President George W. Bush in 2003.  Dr. Leroy Carhart and other physicians who performed partial-birth abortions brought suit in order to “stop the Act from going into effect”—because the act could be broadly interpreted to ban both “dilation and evacuation” as well as “dilation and extraction” abortions, Carhart and the other physicians argued that late-term abortions would also be banned, thus placing an “’undue burden’ on the right to an abortion” (from Oyez). Carhart also claimed that “the Act’s lack of an exception for abortions necessary to protect the health of the mother rendered it unconstitutional” under the precedent set by Stenberg v. Carhart.

A federal district court declared the Partial-Birth Abortion Act of 2003 unconstitutional on both of Carhart’s counts—the “undue burden” claim and also the Stenberg “health of the mother” precedent—and the Eighth Circuit Court of Appeals affirmed the district court’s ruling because of the “health of the mother” argument (from Oyez). However, the Supreme Court had changed. Justice O’Connor had retired at the end of the 2005-2006 term, and President Bush replaced her with Justice Samuel Alito, an extremely conservative justice who is unlikely to ever uphold any sort of abortion law. Due to the changed composition of the court, and the ascent of Justice Anthony Kennedy to Justice O’Connor’s “swing vote” position, the Supreme Court upheld the 2003 Partial-Birth Abortion Act in a 5-4 decision. Kennedy wrote, in his first of many “swing vote majority opinions,” that the Act “was not unconstitutionally vague and did not impose an undue burden on the right to an abortion” (from Oyez).

Kennedy also explained that “Congress did not need to provide a health exception, because of its finding that other procedures exist for terminating late-term pregnancies and the procedure is never medically necessary,” and then made the completely ludicrous statement that the “government has a legitimate and substantial interest in preserving and promoting fetal life” (from the Washington Post). I’m not going to touch that phrase with a ten foot pole (because, if I did, you would be reading this article until next week), but I will point out a few points that Justice Ruth Bader Ginsburg made in her Gonzales v. Carhart dissent. First, she said, “This way of thinking reflects ancient notions of women’s place in the family and under the Constitution… [which] have long since been discredited,” and then she fired shots at her fellow justices, noting that the “differently composed” court is, as the Washington Post worded it, “‘hardly faithful’ to previous decisions.”

If Justice Ginsburg thought that her Court was “hardly faithful” to “previous decisions” back in 2007, I would be curious to see what she has to say about the Court’s actions over the past six years. I’m looking forward to the 2013-2014 docket, but am worried that the Supreme Court will continue its streak of tearing up precedent. Whatever happens, I’ll be here to report it. (Especially if it has to do with the two new abortion cases.) Happy Return of the Supreme Court!