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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.
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. 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.
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 recentlynoted 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.
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