Thursday, November 03, 2005

Alito's Abortion Ruling in Casey vs O'Connor's

The Pitsburgh Post-Gazette had this interesting analysis of Alito's abortion decision in Casey compared to O'Connor's. I did more research on the topic and found this Slate article which seems a little more complete. If you want further reading, I found this 5 page PDF helpful.

City of Akron v. Akron Center for Reproductive Health was a 1983 case where the court found that 5 provisions regulating abortion were unconstitutional. O'Connor was in the minority and wrote a dissent stating that the trimester framework of Roe was unworkable and she put forth an "undue burden" test.

In 1989s Webster v Reproductive Health Services, 4 Missouri statutes were challenged including restrictions on use of public facilities and funding to perform abortions. Basically the court held 5-4 that the restrictions were okay. There were 3 concurring opinions and O'Connor wrote one that reiterated the "undue burden" test, now in a concurring opinion, it is law.

Then comes Planned Parenthood of Southeastern Pennsylvania v. Casey which tested five provisions of PA law: informed consent, spousal notification (not consent), parental concent (with bypass), a 24-hour waiting period and certain reporting requirements for abortion facilities. The District Court found all five were unconstitutional. In 1991 the appeal went to the 3rd Circuit Court of Appeals where Alito sat with two other judges. All three agreed that they needed to determine if the restrictions were an "undue burden". All three judges agreed 4 of the regulations were not an undue burden and upheld. On the spousal notification issue there was disagreement. The other two justices said it was an undue burden and won, Alito dissented saying it was not an undue burden. So the question is, what constitutes an "undue burden".

In fact it was a question asked before. In his concurring opinion on Webster, Justice Scalia wrote: "I know of no basis for determining that this particular burden (or any other for that matter) is 'due.' One could with equal justification conclude that it is not." I wonder how he would define a "reasonable doubt".

Circuit Court judges must work within existing Supreme Court decisions. Alito pointed out that O'Connor had once written that an undue burden "has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." He reasoned, that since it was just notification and not consent it wasn't a veto (which was explicitly disallowed in Planned Parenthood of Central Mo. v. Danforth (1976)) And since the husband would have a "compelling interest" in the welfare of the fetus the state had a rationale for the restriction.

Supreme Court Justices are not limited by previous decisions, though almost all use great caution in overturning previous decisions. The Supreme Court ruling on Casey in 1992 was significant in that it explicitly upheld Roe, but it also changed the rules, "Roe's rigid trimester framework is rejected." Instead, it said "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability" and it reaffirmed Roe's holding that "subsequent to viability, the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother". The rules restricting abortions "must not be an undue burden" and "may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion". So now the test is "substantial obstacle" which Rehnquist argues in his dissent, isn't much clearer. Under the new "substantial obstacle" rule the Supreme Court found 4 restrictions did not pose an undue burden and were allowed. The spousal notification restriction was found to be an undue burden and was overturned.

The proposed notification law had exceptions if the spouse isn't the father, could not be located, would cause bodily harm to the mother, or if the pregnacy was the result of a reported spousal sexual assault. Still, O'Connor found that there were "many many" women who would be blocked from an abortion in situations such as: an unreported sexual assualt or "devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends". So she found "the spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle."

The Post-Gazette article quotes Planned Parenthood's lawyer in Casey saying "O'Connor's view of what was an 'undue burden' changed significantly. The Casey opinion was one of the most feminist decisions in history." As the Slate article descirbed it, Alito had a "sunnier, husband-centered version of marriage". But O'Connor wrote in the Casey decision: "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." We should understand that Alito was bound by what the current Supreme Court rulings were at the time, and O'Connor was able to change them. Nevertheless, the other 3rd Circuit Judges found the spousal notification restriction was and undue burden but since their decision isn't online, I can't read it.

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