Saturday, October 22, 2005

Miers nomination: The implications for Roe?

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As the Miers Senate Confirmation Hearings draw nearer, and political pressure builds on the Administration, very little attention is being paid to the fact that Abortion law as we know it rests precariously in the balance. John Roberts replacing Chief Justice Rehnquist didn't really shift the internal dynamics of the court. The implications for Harriet Miers replacing Sandra Day O'Connor are much more dramatic.

So the looming specter of Roe vs. Wade being overturned becomes increasingly more tangible... thanks in large part to the White House emphasis placed upon Miers' Pro-Life/Evangelical beliefs. And yet, for all the speculation, are we really examining where the Supreme Court currently stands on the issue of Abortion? Are we even considering, with specificity, how things are likely to change?

Answers can be found in the 1992 case, PLANNED PARENTHOOD vs. CASEY.

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Planned Parenthood vs. Casey asked whether the state of Pennsylvania could require women who wanted an abortion to obtain informed consent, wait 24 hours, and, if they were minors, obtain parental consent, without violating their right to abortions. The rights of the state legislature to restrict abortions, and apply a "rational basis" for those restrictions, brought back into question the fundamental principles of the Roe vs. Wade ruling.

Roe vs. Wade was re-affirmed in the case 5-4 in three parts:
1) The right of the woman to choose to have an abortion before viability.
2) The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
3) The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.


What does this all tell us about where we stand today?

Well, two of the four dissenting justices remain on the court: Justice Thomas, and Justice Scalia. Chief Justice Rehnquist stated in the dissenting opinion, joined by Thomas and Scalia: "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases."

Rehnquist, of course has now been replaced by this guy...

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...who said: "Justices are like Umpires... I will remember it is my job to call balls and strikes, and not to pitch or bat."

The subtext to John Roberts' quote from his Senate Hearings is that he is an Originalist. He believes that the role of a judge is stick to the original text of the US constitution strictly, with as little, if no subjectivity. Originalists believe that nowhere is it specifically stated in the constitution that Abortion is a fundamental right, and that none of the principles that it articulates were ever originally intended to provide that right. Hence it is the responsibility of respective states to legislate on the issue, effectively meaning that Abortion can be criminalized.

Others, like myself, believe that the US Constitution is a "Living and breathing" constitution, growing and evolving through time in our interpretations, embodying principles that bear a different significance upon society as we change via cultural standards, + new technology, etc. For example: What does a right to privacy mean in the age of the internet, and online commerce, and emails, and CCTV potentially on every street corner... How could the founders' original intentions preclude a modern assessment of what the right to privacy really means today, in the modern world?

As I quoted in my previous post, Roe vs Wade relies upon the fourteenth amendment:

ROE vs. WADE, 1/22/73: State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Nowhere in the fourteenth amendment does it explicitly state that the right to an abortion is guaranteed. It articulates a right to privacy... and it is a judgment call about whether privacy encompasses female productive rights. So, it is safe to conclude from Roberts' originalist judicial philosophy that he will be a passionate advocate of overturning Roe vs. Wade.

So where do the others stand?

By my mind, there are four justices that can reliably be expected to vote against Roe: Scalia, Thomas, Roberts, and Miers, or her replacement if she steps down or performs badly in her hearings. And there are also four justices, who can reliably be expected to vote to uphold Roe: Souter, Breyer, Stevens, and Ginsberg.

One Justice remains a question mark... the pivotal vote in Planned Parenthood vs. Casey... and that is Justice Anthony Kennedy:

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Now, there's a lot of cause for optimism... Justice Kennedy co-wrote the opinion upholding Roe vs. Wade in Casey vs. Planned Parenthood. He also, more recently, wrote the opinion in a case outlawing the use of Capital Punishment for minors, citing foreign law, which makes it absolutely clear that he is not a die hard originalist like Scalia or Roberts... meaning that he can be swayed by the notion that changing times, and values should be reflected in the interpretation of the principles that the Constitution sets forth.

However there also remains a great deal of uncertainty surrounding him:

"Recently released private court records of Roe vs. Wade architect Justice Harry Blackman tell the story of how close the 1973 landmark came to being overturned in 1992. The records are accompanied by an oral history recorded by Blackmun, and show that Roe's overturn was imminent until Kennedy changed his mind and voted to uphold Roe. Blackmun's commentary reveals that Kennedy, a Catholic, originally voted to support the Pennsylvania abortion restrictions challenged in the case, but changed his vote after vigorous lobbying by Blackmun."

Contrary to common misconception, Sandra Day O'Connor was not the swing vote on Abortion... Justice Kennedy was. Nobody knows what exactly made him change his mind... and nobody can say whether it was a concrete and permanent change of heart, or whether his vote is once again up for grabs. There is some comfort in knowing that Blackmun has been replaced by Breyer, an intellectual heavyweight more than capable of standing up to Scalia, Thomas, and Roberts, who are sure to form an intimidating triumvirate. And, the fact that Kennedy co-authored the opinion re-affirming the three principles of Roe vs. Wade also is cause to be hopeful that Miers or someone worse, replacing Sandra Day O'Connor, won't mean the end of female reproductive rights in the United States as we know them.

All is not lost, perhaps, as I had feared. But, with another nomination to the Court looming (Justice Stevens is 85 and prey to God going strong) the 2008 election takes on even more importance. Hopefully, by that time the Democratic Party will have a leader with the conviction to fight the battle of ideas that we have been forsaking to Conservatives for too long. An Originalist doctrine of the US Constitution is not reflective of modern, mainstream American values, no matter how many times Hannity, Limbaugh, Fred Barnes, et all say so.

Related Links:
Case History: Planned Parenthood V Casey
Oral Arguments: Audio
On the Issues: Anthony Kennedy on Abortion
NPR: Blackmun's Papers
Blackmun: Roe nearly overturned in 1992

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