A Neoprog Approach to the Abortion Debate

Linda Greenhouse of the New York Times reports today that the new Roberts court will hear two important abortion cases this term. She writes:

When the Supreme Court meets on Wednesday to hear its first abortion case in five years, the topic will be familiar: a requirement that doctors notify a pregnant teenager's parent before performing an abortion.

The court has upheld such laws for years, even in its more liberal days, and nearly all states now have them. But in the current climate, with the court in transition and the abortion debate as raucous as it has ever been, there is no such thing as just another abortion case. As reflected in dozens of briefs filed on both sides, interest in this new case, from New Hampshire, is extremely high.

And in fact, the case raises two questions with broader implications for the future of abortion.

One is how flexible a restriction on access to abortion must be when a woman's pregnancy poses a threat to her health. New Hampshire imposes a 48-hour waiting period after the required notice to at least one parent. Like all states, it provides an exception for conditions that present an immediate threat to a pregnant teenager's life.

But of the 43 states with parental-involvement statutes, New Hampshire is one of only five that do not also provide an exception for non-life-threatening medical emergencies, and it was on this basis that two lower federal courts declared the law unconstitutional.

The Supreme Court's decision in the case, Ayotte v. Planned Parenthood of Northern New England, may therefore shed light on the contours of the "health exception" that the court's abortion precedents have required since Roe v. Wade in 1973. ***

Waiting in the wings, as the justices surely know, is another, perhaps even more highly charged abortion case. The Bush administration recently filed an appeal in defense of the federal ban on the procedure that abortion opponents have labeled "partial birth abortion," and the court must decide shortly whether to hear it.

That law, passed in 2003, has never taken effect. Federal courts around the country have declared it unconstitutional for lack of the health exception that the Supreme Court said was essential when it struck down a nearly identical Nebraska law in 2000. In passing the federal ban, Congress took account of that ruling by declaring that a health exception was superfluous because the procedure was, in its view, never medically necessary.

In other words: if a girl’s fertility is endangered by her pregnancy unless it is terminated immediately, but not her life, she still must notify one parent and wait 48 hours for her abortion (unless, presumably, that parent expressly consents sooner than that).

The New Hampshire law’s legislative and legal history is fraught with politics:

When the New Hampshire legislature was debating whether to enact a parental notification law in 2003, some legislators ... [argued] that the measure needed a health exception. But the bill's sponsors resisted... on the ground that it would offer doctors too big a loophole for avoiding parental involvement.

Without the health exception, the bill passed the State Senate by a vote of 12 to 11 and the House by a vote of 187 to 181. It was signed into law by the state's Republican governor, Craig Benson. John H. Lynch, the Democrat who defeated him in last November's election, opposes the law and has filed a brief in the Supreme Court urging the justices to declare it unconstitutional. The state's attorney general, Kelly A. Ayotte, a Republican, has pursued the appeal under her office's independent litigating authority and will argue the case herself.

So it’s not like the People of New Hampshire, or their elected representatives, are solidly united behind this bill; the New Hampshire government is divided as to whether it has significant, let alone compelling, interest in overriding a pregnant girl’s right to decide whether to terminate her pregnancy. This is important, because when the government chooses to infringe on someone's personal liberty, it ought to be for a reason compelling enough to create something like consensus. Ties go to the runner, and political ties should be resolved in favor of individual freedoms. But that's a digression from my main point.

Finally, the ability of women to challenge abortion laws at all is being attacked:

The second ... issue is under what circumstances federal courts can continue to do what they did in this case and in many other abortion cases: bar the enforcement of abortion restrictions that have not yet gone into effect, and so cannot be said to have injured any specific plaintiff. ***

[T]he Bush administration, which entered the case as a "friend of the court" to defend the statute, are arguing that the lower courts should never have entertained an attack on the law "on its face" in the first place. *** The Bush administration argues that with the exception of spousal notice, all other abortion issues should await as-applied challenges, a position the plaintiffs in the New Hampshire case describe as "callous." Their brief says "it would preclude courts from granting any relief at all until faced with a woman in crisis."

With the exception of Roe v. Wade itself - "Jane Roe" was actually pregnant when she challenged the longstanding Texas law that made abortion a crime - most abortion precedents on the books began as facial challenges. A rule that women must wait until new restrictions actually take effect would be a substantial change in the way abortion cases are litigated.

As lawyers are trained to do, I want to set aside the general questions, even if they are compelling (e.g., should abortions be legal always, or ever? Is parental consent always, or ever, a legitimate restriction on the right to abortion?) This Court is not going to declare parental consent laws unconstitutional in general or otherwise increase the scope of women’s abortion rights.

Instead, I want to focus on the key issues in these cases:

1. Whether it’s reasonable for a state to require parental consent even when the mother’s health is endangered by delay, so long as her life is not in danger;

2. Whether it’s right for courts to wait for particular cases before deciding how a law that delays abortions should apply; and

3. Consistent with the theme of this blog, how a Neoprogressive approach to this problem might look.

Contrary to many people’s belief, Roe v. Wade did not make a woman’s right to an abortion absolute, nor did it deny that fetuses have interests that may need protection. Read it; it might surprise you. The Roe Court did find that women, in consultation with their physicians, have the right to make their own choices about whether to carry a pregnancy to term. But it carefully balanced that right against the interests of the fetus, as protected by state laws, in being carried to term.

That’s where the “viability” system – an updated version of the “quickening” test used in the first American antiabortion statutes, enacted in the 1800s -- came into play. The Court ruled that before the fetus is viable – i.e., capable of independent life – abortion is entirely the mother’s choice. After the fetus becomes viable and might be capable of living outside the mother, then a state can ban abortions altogether unless the mother’s life or health are endangered.

The Roe court rejected the proposition that a fetus was a “person” under the Fourteenth Amendment, but it did say this:

[I]t is reasonable and appropriate for a State to decide that at some point in time another interest, that of ... potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

A little further on, the Court reiterated:

We repeat ... that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman ... and ... another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

The Court also very strongly emphasized the physician’s role in the decisionmaking process, at one point even using language that puts the physician’s judgment before the mother’s. For abortions prior to fetal viability, it ruled that

the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.

Roe thus was a carefully-wrought balancing act, one that acknowledged both the mother’s and the fetus’ “right to life” (the latter, more accurately, expressed as the state’s interest in protecting fetal life); respected the ability of physicians rather than judges or legislators to make proper decisions (anyone remember Terry Schiavo?); and tried to work a compromise between the various legitimate interests. One may disagree whether it balanced them properly, but its impulse to balance and accommodate the mother’s and fetus’ interests, while simultaneously negotiating the sliding scale of fetal development, was laudable.

So what is at stake before the Court this term?

First, the concept of protection of the mother’s health. Most people agree that when given a choice between the mother’s life or the fetus’, the mother’s life may come first. But health is a trickier question. Maternal health can be a minor issue (e.g., lower back pain, even when severe, is a common experience in the third trimester and wouldn’t warrant a late-term abortion), or it can be extremely critical: kidney or liver failure, stroke, vision loss. When a problematic pregnancy endangers a young woman’s fertility, as often occurs, then the problem loops back onto itself: does her right to reproductive choice include the right to decide to remain fertile? One would hope yes. More generally, following the Schiavo fiasco, one would hope that the Roe Court’s approach of respecting physicians’ judgment on health matters would prevail.

Yet the New Hampshire legislature – by a one vote margin – and its former governor – opposed by its current governor – have decided that a mother’s health is not important enough to waive the 48-hour waiting period when the mother is a minor. And the U.S. Congress and the current President, in the misnamed “partial birth abortion” law, have decreed, a la Schiavo, that they know better than women’s physicians do and a particular kind of third-trimester abortion never, ever is needed to protect the mother’s health.

The second issue, and potentially the larger one, concerns the legal concepts of “standing” and “ripeness”. Standing asks whether a particular plaintiff has enough involvement in a case to warrant bringing suit. Ripeness asks whether a legal controversy has matured sufficiently to allow a logical and complete resolution. Here, the questions appear to be whether a woman who is not pregnant, and not seeking an abortion, has standing to sue to invalidate an abortion law that might someday impact her, and whether an abortion law that has not yet been applied to a particular woman can be ripe for review.

Normally these are excellent rules. The common law relies upon particular cases to evolve, which gives it a grounding in the “real world” that lofty-worded statutes alone can never have. But sometimes, waiting for a real case to arise is impossible. When the real case arises – a 17 year old girl’s health is immediately endangered by a pregnancy that her parents insist she carry to term – the court will not be able to make a competent ruling in only two days. She’ll be lucky if it’s sooner than two years. Forget two minutes, which sometimes is the window an emergency room physician may have in which to make a life-altering decision. If they want time to make a carefully-considered decision, courts must review some laws “on their face” instead of waiting for particular cases to arise.

What’s more, the law also declines to address cases that are no longer relevant – that are moot. If the courts refuse to consider cases until they are presented with an actual, pregnant plaintiff, will they then dismiss those cases as soon as the child is born? Under that rule, the Supreme Court would never consider another abortion case. So the question really is, at which end of the pregnancy do we want to bend the rules: before it begins, so women, their doctors, and law enforcement officials all know what law to apply; or at the end, by continuing to consider abortion cases after the particular plaintiff has carried her unwanted pregnancy to term, delivered her baby, and suffered any adverse health effects that pregnancy caused? The current rule – that abortion laws may be reviewed on their face rather than waiting for actual cases to arise – is the only logical approach. Yet both New Hampshire’s maverick attorney general, and the Bush administration, are arguing for the illogical approach, simply to monkeywrench the process.

A Neoprogressive Approach As I’ve said before, if neoprogressives follow in the footsteps of the original progressives, they will be able to agree on “ground rules” for disagreement. I don’t expect all Americans ever to agree on whether abortion should be legal. But we should be able to agree on “first principles” to frame that debate. From a Neoprogressive perspective, those principles would include:

1. The right to privacy exists. Accordingly, women, in consultation with their physicians, have a fundamental Constitutional right to reproductive choice. It’s hard to believe, and most don’t remember, that as late as 1965 some states forbade married couples from using condoms. Griswold v. Connecticut found such law to be an unconstitutional infringement on married people’s right to reproductive choice. When judicial nominees are asked whether they believe the Constitution contains an implied right to privacy, they are being asked whether they believe Griswold was rightly decided. When so-called “originalists” claim there is no constitutional right to privacy, they are asking that not just Roe, but even Griswold, be overturned. Americans should put this part of the debate to rest: Griswold was rightly decided, we have a right to privacy from unwarranted government intrusion, and our reproductive and sexual choices are included in that right. We can still disagree about abortion even within that framework.

2. When a statute could prevent someone from obtaining an abortion before a court has time to rule otherwise, it is appropriate for courts to review that statute on its face, instead of waiting for someone’s right to be violated before acting. I won’t even waste words supporting this one. If the proposition isn’t self-evident, you’re not a Neoprogressive and likely won't ever become one.

3. Abortions suck. Abortions may be necessary, but they are not good. Every abortion is an unfortunate thing. Our goal should be to have no unwanted pregnancies, ever; no unhealthy pregnancies, ever; and no abortions, ever. Since there will always be unwanted and unhealthy pregnancies, there will always be good reasons for women to have abortions. But that doesn’t mean we have to be happy about it. Pro-choice advocates agreeing with their opponents on this issue will take a lot of heat out of the debate.

4. Some abortions should be legal, and some shouldn’t. This is what Roe said, and it’s the only humane way to proceed. Abortion is not an all-or-nothing question, and it cannot be made one.

Assume an 11 year old girl is raped, becomes pregnant, and while the baby will live, the mother probably will die during childbirth if the pregnancy is carried to term. Should her life be saved by aborting the pregnancy in the first trimester? If your answer is yes, then you are not absolutely anti-abortion. The fetus aborted in that scenario is no more or less "human" than any other.

Now assume a 30 year old woman decides to become pregnant, carries the pregnancy for nearly nine months, then changes her mind because she’s been offered a promotion and a baby suddenly is inconvenient to her career. Should she be allowed to abort the pregnancy even though the fetus would be perfectly capable of living outside her body if it were born normally the same day? If your answer is no, then you are not absolutely pro-choice, because you agree that in some circumstances a fetus has a right to be carried to term that overrides the mother's contrary choice.

Setting these four parameters, especially the last one, should eliminate most of the screaming and fanaticism from the debate. Within these four parameters, there is still plenty of room for heated discussion about sociology, religion, science, civil rights, and ethics.

Neoprogressives who believe human life begins at conception will tilt the balance in favor of protecting the fetus’ interests as much as possible, without denying that women have some say in the matter and without pretending that abortion can never occur. Neoprogressive feminists may lean strongly the other way, emphasizing the mother’s civil rights, without pretending that the fetus is never, at any stage, unworthy of protection. Neoprogressive libertarians, as always, will be all over the charts, depending on whether they are looking at the mother’s freedoms or the fetus’.

But we should all be able to agree on the basic American values and respect one another’s opinions, and work our way to a nuanced and practical compromise.

SUPPLEMENT, NOV. 30, 2005: Today, there's news that Supreme Court nominee Samuel Alito not only has expressed a desire to overturn Roe v. Wade, but also, while working for the Solicitor General's Office under Ronald Reagan, outlined a strategy for gradually whittling it back, undercutting it over time with the goal of eventually overturning it altogether.

If he remains consistent to those views -- and there is no reason to think he isn't -- then he would, if confirmed, vote to bar courts from considering the constitutionality of abortion laws until faced with actual pregnant women, dismiss those women's appeals once their babies are born, and uphold obstacles to women obtaining abortions such as notice requirements, waiting periods, mandatory 'abortion alternative' education, etc. He would vote this way, not because he believes such rulings correctly interpret the Constitution, but because such rulings will chip away at Roe v. Wade itself.

From a neoprogressive perspective, the most troubling thing about Alito's views is not his distaste for abortion, which I am sure is sincere, but his deceptive approach. Matters of important public policy deserve to be addressed on their face, not undermined little by little. Rights should not be whittled away; they should either be affirmed or rejected. If Judge Alito thinks Roe is good law, he should say so. If he thinks it was wrongly decided and should be overturned, he should say so. But chipping away at it, little by little, is dishonest and dishonorable.

I have been withholding judgment on Judge Alito. No longer. The American people deserve honest judges, not ones with secret agendas and strategies for undermining civil rights. If Alito breaks with the usual gameplaying and straightforwardly declares his position on abortion, then he might be honest and honorable enough to be confirmed. But if he declines to answer that question, then, for advocating sneakiness instead of open debate, he is not worthy to serve, and should be rejected.