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Scope of abortion rights up for grabs

New Supreme Court makeup, pending cases will test laws

By Joanna Grossman
FindLawexternal link columnist
Special to CNN.com


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The 8th U.S. Circuit Court of Appeals last week ruled invalid a federal ban on a type of late-term abortion. But this development -- significant as it is -- may be nothing compared with what will occur soon.

Justice Sandra Day O'Connor is retiring, and William Rehnquist may do the same, meaning President Bush may also have the chance to select a new chief justice.

That, of course, means Bush has the opportunity to cause an issue-driven, rightward shift in a court that has gone more than a decade without a change in personnel.

In 2003, Bush signed into the law the first nationwide abortion ban, to prohibit what is medically termed intact dilation and evacuation or dilation and extraction. Opponents of abortion rights refer to the procedure as "partial birth" abortion.

Earlier sessions of Congress had passed similar bans that were vetoed by President Clinton.

The law, which imposes both criminal and civil penalties on a physician who violates it, was unusual for many reasons.

First, the law represented the federal government's first foray into regulating abortion, an issue typically relegated to the states. Coming from a Republican administration, and given the party's emphasis on "states' rights," such legislation seemed hypocritical.

Second, the law banned a particular abortion procedure no matter how early in the pregnancy it is used -- even abortions performed early in the second trimester were included.

In so doing, it intruded deep into doctors' professional judgment, and impinged on their duties to their patients -- telling them that the best procedure, from the standpoint of the patient's health and safety, could be illegal.

Opponents of abortion tend not to like exceptions for health -- as opposed to exceptions for the life of the patient -- because they fear they allow much discretion to physicians.

But without a health exception, medical discretion is dangerously limited, and physicians sometimes are forced by law to opt for a procedure that is truly riskier and more dangerous for the mother.

The arguments that were made in support of the law involved late-term abortions that supporters said verged on infanticide. But the law did not hesitate to encompass earlier-term abortions, too.

Finally, and perhaps most unusually, the law closely paralleled a Nebraska state law that the Supreme Court had declared unconstitutional only three years earlier in Stenberg v. Carhart.

This made the 8th Circuit's ruling last week unsurprising. It simply applied prior precedent that was directly on point.

More up for grabs, however, is what a court with one or two new members might do if prompted to reconsider Stenberg. Stenberg was a 5-4 ruling in which Justice O'Connor provided the "swing vote."

Precedent made case easy

In Stenberg, the court found the law at issue unconstitutional first because it did not establish an exception to protect the health of the mother. Shockingly, neither did the 2003 law.

The 8th Circuit -- quite reasonably, and in harmony with rulings of the 4th and 9th circuits -- read Stenberg to mean that a law prohibiting abortion must contain a health exception whenever "'substantial medical authority' supports the medical necessity of the prohibited procedure."

Congress had made a finding, in passing the 2003 law, that the procedure at issue is "never medically indicated." But the 8th Circuit pointed out that the Supreme Court itself had found, in Stenberg, that in some cases the procedure was medically necessary.

As a lower court bound by Supreme Court precedent, the 8th Circuit had to adopt that finding, and it did. Only significant changes in medical knowledge or technology should justify re-litigation of the issue, the 8th Circuit noted -- and there had been none.

Accordingly, the 8th Circuit struck down the law for failure to contain a health exception -- just as the 4th Circuit had done before it in Richmond Medical Center for Women v. Hicks.

Because the 8th Circuit had already invalidated the law on this ground, it did not reach other reasons that had led the trial judge to invalidate the law.

The other crucial holding of Stenberg involved application of the "undue burden" standard.

Originally, Roe v. Wade did not contain this standard. But when Roe was reaffirmed in 1992, in Planned Parenthood v. Casey, Justice O'Connor offered the new "undue burden" standard as a benchmark for judging the constitutionality of abortion laws. Along with Justice Anthony Kennedy, she was a "swing vote" in the 6-3 decision

In Stenberg, the Court held that the ban imposed an "undue burden" on the right to abortion, because the law's wording was so broad as to effectively ban most second-trimester abortions.

Effect of new justices?

The ban has often been seen as a political showpiece -- a law designed to appeal to abortion opponents, yet destined never actually to be enforced, in light of the Stenberg ruling.

But what if a new court were to overrule Stenberg?

In that event, the law could actually become, in the court's eyes, valid law. Granted, the court is very disinclined to overrule such recent precedent; Stenberg is a 2000 case.

But if O'Connor were replaced by a staunch opponent of abortion rights, that justice might both muster the votes for the court to grant review, and muster the votes necessary to overrule Stenberg and uphold the ban.

Also -- though this would be implausible -- it might be possible for the court to uphold the ban without overruling Stenberg. When it enacted the law, Congress tried to avoid running afoul of Stenberg by making its own findings about the medical necessity and potential dangers of the procedure.

In Congress' view, the court in Stenberg had been unfairly hamstrung by the faulty findings of the trial court as to the medical necessity and safety of the procedure.

Appellate courts -- including even the Supreme Court -- must generally defer to trial court findings.

That has meant that a Nebraska federal district court's findings arguably compelled not only the Supreme Court's result in Stenberg, but even this week's 8th Circuit decision -- in which the court deferred to Stenberg's fact findings -- which were originally the Nebraska federal district court's fact findings. Those who feel federal district courts are not very powerful will find strong counter-evidence here.

To ensure that any challenge would queue up on better footing, Congress made its own, somewhat remarkable, findings in passing the 2003 law. It found that the procedure "is never medically indicated to preserve the health of the mother."

It found that the procedure "is in fact unrecognized as a valid abortion procedure by the mainstream medical community." And finally, it found that it "poses additional health risks to the mother."

If a Supreme Court, with a new justice or two, accepts Congress' findings, it may be able to distinguish Stenberg, rather than overruling it.

In light of this possibility, the law -- once viewed as empty posturing -- may actually seem, in retrospect, to be a brilliant Republican strategy. Replacing O'Connor and Rehnquist ought to leave Casey (and thus Roe) intact.

Again, Casey was a 6-3 decision, with O'Connor in the majority and Rehnquist in dissent. So replacing O'Connor and Rehnquist with abortion-rights opponents would only change the lineup of justices to 5-4 -- with the same result.

But Stenberg was a 5-4 decision. Replacing O'Connor -- whose particular strong emphasis on following precedent might disappear along with her presence on the court -- might mean it becomes 4-5.

Two cases to be heard

A possible overruling of Stenberg is not the only development that may be on the horizon. The court has already agreed to hear two other abortion-related cases next term.

The first case is Scheidler v. National Organization for Women. There, the court will consider whether threats of violence, potentially in violation of the Hobbs Act, provide cause for private parties to obtain injunctive relief under the Racketeering-Influenced Corrupt Organizations Act (RICO).

Although RICO was enacted to respond to organized crime, its language is much broader. It targets patterns of certain federal crimes, and the Hobbs Act violations are among them.

If NOW prevails in the case, doctors and patients who face a pattern of threats of violence from abortion opponents will not only be able to call the police, they will also be able to sue, in federal court, the repeat-threat-makers for a court order compelling them to stop. And that order could, in turn, be enforced by contempt-of-court orders potentially resulting in jail time.

A ruling for NOW could be very significant -- especially in locales where police tend to oppose abortion rights; threateners could end up jailed even if police choose to take no action. But if NOW is rebuffed, those who try to oppose abortion by threatening violence against women may be emboldened.

The second case is Ayotte v. Planned Parenthood, in which the court will consider a New Hampshire parental notification law. The law requires a doctor to notify a minor's parents prior to performing an abortion on her; in particular, it requires 48-hours' notice to the parents.

Just last week, a Florida court declined to enjoin a very similar law -- suggesting the court believes it likely will be held to be constitutional.

New Hampshire's law has exceptions for medical emergencies. Also, judges can waive the notification provision based on the minor's maturity, her best interests or a history of abuse by her parents.

Nevertheless, the law can force teens to delay getting medically necessary abortions, such as those triggered by potentially serious pregnancy complications.

That's because, like the federal 2003 federal law, it has no "health" exception. Instead, it has only a "life" exception.

No wonder, then, that both the federal trial and appellate courts in New Hampshire found the law unconstitutional. It forces a doctor to watch the clock for two entire days, even if a young girl's pregnancy is having painful and life-threatening medical consequences.

Only if the doctor is ready to say the girl is at death's door -- or is able to get a court to act on the minor's behalf -- may the doctor act without parental consent. And this is the case no matter which trimester the patient's pregnancy is in.

The Supreme Court doubtless would not have granted review in Scheidler and Ayotte if their outcomes were a foregone conclusion. Next term, look for these cases to divide the court -- whatever its composition when the justices hear them.

Thanks to Kennedy -- who made Casey a 6-3 decision -- the core protection for abortion rights is likely to survive even two Supreme Court vacancies. But the scope and contours of the right are very much up for grabs.

Joanna Grossman, a FindLawexternal link columnist, is a professor of law and associate dean for faculty development at Hofstra Law School in Hempstead, New York.

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