THE SUPREME COURT AND ABORTION : EXCERPTS: ‘It Is Not Merely Potential Life, but Actual Life’

These are excerpts from the oral arguments before the Supreme Court in the Missouri abortion case:

Rights of Unborn

(From Missouri Atty. Gen. William Webster.)

This case represents a direct appeal that involves a 1986 Missouri statute defining the rights of the unborn and regulating abortion in Missouri.

Missouri’s appeal involves three basic areas for this court’s review: the first, the constitutional boundaries on the limitations of public funding; the second, the effect of and the facial constitutionality of legislation declaring that life begins at conception, and third, the ability of a state to require a physician to perform tests and to make and record findings when determining viability.

Finally, we have asked this court to reconsider the standard of review to be applied to state abortion regulation.

Since 1973, this court has reaffirmed Roe vs. Wade’s mandate; state and lower federal courts have repeatedly interpreted that mandate, frequently strictly against the states.

One result is that the states have effectively been forbidden, not only to prohibit abortion, but usually to regulate abortion in any significant way . . . .

Funding for Abortions

Webster: It seems to us a convoluted result to suggest that, if you can afford an abortion, we have to provide one for you in a public facility, but, if you lack the financial capacity . . . the state and other public governmental entities are not obligated to provide those services for you.

Justice John Paul Stevens: Can I ask you one clarifying question? What is the consequence of a violation of that section . . . .

What if a doctor who had a patient in a public hospital went ahead and performed, in the first trimester, performed an abortion. Is there any sanction against the doctor if he did that?

Webster: This particular chapter (of the law) carries a general misdemeanor penalty for violations . . . but there is no operative language . . . .

Stevens: So it would be a misdemeanor, then?

Webster: Arguably, it would be a misdemeanor.

Stevens: What is your opinion? Don’t you know?

Webster: My opinion is that there is no language in that section which was adopted here which would suggest that it would make it a criminal offense . . . .

Stevens: Is it your opinion as the chief enforcement officer of the state that it would not be a misdemeanor?

Webster: We wouldn’t view that violation as a misdemeanor, no . . . .

Justice Anthony M. Kennedy: Wouldn’t it be grounds for discharge . . . ?

Webster: It is conceivable the hospital board could, if somebody violated the policy of that facility, seek to discharge that particular employee . . . .

Privacy Issue

(From Charles Fried, for the Bush Administration.)

Today the United States asks this court to reconsider and overrule its decision in Roe vs. Wade.

At the outset I would like to make quite clear how limited that submission is.

First, we are not asking the court to unravel the fabric of unenumerated and privacy rights which this court has woven in (previous) cases . . . .

Rather, we are asking the court to pull this one thread.

And the reason is well stated by this court . . . abortion is different.

It involves the purposeful termination, as the court said, of potential life.

And I would only add that in the minds of many legislators who pass abortion regulation, it is not merely potential life, but actual human life.

And though we do not believe that the 14th Amendment takes any position on that question, we think it is an utter non sequitur to say that, therefore, the organized community must also take no position in legislation and may not use such a position as a premise for regulation.

Kennedy: Your position, then, is that Griswold vs. Connecticut (which struck down a state’s ban on contraceptive sales as an invasion of personal privacy) is correct and should be retained?

Fried: Exactly, your honor.

Kennedy: Is that because there is a fundamental right involved in that case?

Fried: In Griswold vs. Connecticut, there was a right which was well established in a whole fabric of quite concrete matters, quite concrete.

It involved not an abstraction such as the right to control one’s body, an abstraction such as the right to be let alone, it involved quite concrete intrusions into the details of marital intimacy . . . .

Kennedy: Does the case stand for the proposition that there is a right to determine whether to procreate?

Fried: Griswold surely does not stand for that proposition . . . .

Kennedy: What is the right involved in Griswold?

Fried: Beg your pardon?

Kennedy: What is the right involved in Griswold?

Fried: The right involved in Griswold, as the court clearly stated, was the right not to have the state intrude into, in a very violent way, into the details, inquire into the details of marital intimacy. There was a great deal of talk about inquiry into the marital bedroom, and I think that is a very different story from what we have here.

Interests of Liberty

Justice Sandra Day O’Connor: Do you say there is no fundamental right to decide whether to have a child or not? A right to procreate? Do you deny that the Constitution protects that right?

Fried: I would hesitate to formulate the right in such abstract terms, and I think the court prior to Roe vs. Wade quite prudently also avoided such sweeping generalities.

O’Connor: Do you think that the state has the right to, if in a future century we had a serious overpopulation problem, has a right to require women to have abortions after so many children?

Fried: I surely do not. That would be quite a different matter.

O’Connor: What do you rest that on?

Fried: Because unlike abortion, which involves the purposeful termination of future life, that would involve not preventing an operation, but violently taking hands on, laying hands on a woman and submitting her to an operation . . . .

O’Connor: And you would rest that on substantive due process protection?

Fried: Absolutely.

Kennedy: How do you define the liberty interests of the woman in that connection?

Fried: The liberty interest against a seizure would be involved. That is how the court analyzed the matter in Griswold . . . .

Kennedy: How do you define . . . the liberty interest of a woman in an abortion case?

Fried: Well, I would think that there are liberty interests involved in terms, perhaps, of the contraceptive interest . . . . At all points it is an interest which is matched by the state’s interest in potential life . . . .

I would like to make clear that, in our view, if Roe were overruled, this court would have to continue to police the far outer boundaries of abortion regulation under a due process rational basis test, and that test is muscular enough . . . to strike down any regulation . . . which did not make proper provision for cases where the life of the mother was at risk . . . .

Stevens: Is there a difference between the court’s power in the case of an abortion that would be life threatening to the woman and an abortion that would merely cause her severe and prolonged disease? Is there a constitutional difference?

Fried: I think that is a matter of degree, and it is perfectly clear that severe health effects shade over into a threat to the life. I cannot promise the court that our submission would dispense the federal courts from considering matters like that . . . .

Justice Byron R. White: Suppose there is a state that permits abortions and they are done in public hospitals. Do you think that is a--you say that there is human life involved, that is destroyed in abortions--is there some problem about the state permitting abortions?

Fried: I think the Constitution takes no position on this point . . . . The country’s experience and the court’s experience under the constitutionalization of that issue has been so regrettable that I could not in conscience recommend that it be constitutionalized in some other way at another point in the spectrum . . . .

Drawing of Lines

(From Frank Susman, the attorney for those who challenged the Missouri law.)

I think (Fried’s) submission is somewhat disingenuous when he suggests to this court that he does not seek to unravel the whole cloth of procreational rights, but merely to pull a thread.

It has always been my personal experience that when I pull a thread, my sleeve falls off.

There is no stopping.

It is not a thread he is after.

It is the full range of procreational rights and choices that constitute the fundamental right that has been recognized by this court.

For better or for worse, there no longer exists any bright line between the fundamental right that was established in Griswold and the fundamental right of abortion that was established in Roe.

These two rights, because of advances in medicine and science, now overlap.

They coalesce and merge and they are not distinct.

Justice Antonin Scalia: You find it hard to draw a line between those two but easy to draw a line between first, second and third trimester. I don’t see why a court that can draw that line can’t separate abortion from birth control quite readily.

Susman: . . . Things have changed.

The bright line, if there ever was one, has now been extinguished.

That’s why I suggest to this court that we need to deal with one right, the right to procreate . . . .

Kennedy: Do you agree that the state can forbid abortions save to preserve the life of the mother after the fetus is, say, 8 months old? Suppose the health rights of the mother are not involved . . . ?

Susman: Yes, I am willing to recognize the compelling interest granted in Roe of a state in potential fetal life after the point of viability.

Kennedy: But that is a line-drawing, isn’t it?

Susman: Yes, it is. But that is a line that is more easily drawn . . . .

Procreational interests are, indeed, implicit in the concept of ordered liberty, and neither liberty nor justice would exist without them.

It is truly a liberty whose exercise is deeply rooted in this nation’s history and tradition . . . .

I suggest that there can be no ordered liberty for women without control over their education, their employment, their health, their childbearing and their personal aspirations.

There does, in fact, exist a deeply rooted tradition that the government steer clear of decisions affecting the bedroom, childbearing and the doctor-patient relationship as it pertains to these concerns.

Viability of Fetus

Chief Justice William H. Rehnquist: It is a deeply rooted tradition, but surely abortion was regulated by the state in the 19th Century and in the 20th Century . . . .

Scalia: Let me inquire--I can see deriving a fundamental right from either a long tradition that this, the right to abort, has always been protected. I don’t see that tradition. But I suppose you could also derive a fundamental right just simply from the text of the Constitution plus the logic of the matter, or whatever.

How can you derive it that way here without making a determination as to whether the fetus is a human life or not? It is very hard to say it just is a matter of basic principle that it must be a fundamental right unless you make the determination that the organism that is destroyed is not a human life. Can you as a matter of logic or principle make that determination otherwise?

Susman: I think the basic question . . . whether this is a human life or whether human life begins at conception, is not something that is verifiable as a fact. It is a question verifiable only by reliance upon faith.

It is a question of labels.

Neither side in this issue and debate would ever disagree on the physiological facts.

Both sides would agree as to when a heartbeat can first be detected. Both sides would agree as to when brain waves can first be detected.

But when you come to try to place the emotional labels on what you call that collection of physiological facts, that is where people part company.

Scalia: I agree with you entirely, but what conclusion does that lead you to? That, therefore, there must be a fundamental right on the part of the woman to destroy this thing that we don’t know what it is. Or, rather, that whether there is or isn’t is a matter that you vote upon. Since we don’t know the answer, people have to make up their minds the best they can.

Susman: The conclusion to which it leads me is . . . it must be left as a fundamental right . . . .

Women do not make these decisions lightly. They agonize over them.