Sheridan: Con-Law

CHARLES FRIED

Charles Fried, now a professor of Constitutional Law at Harvard Law School, served as Solicitor-General of the United States, a Department of Justice sub-agency, or office, which functions as the law firm representing the United States of America when one of its laws or practices has been challenged as being unconstitutional in a lawsuit brought in a federal court. The Solicitor-General is the government lawyer who represents the United States before the U.S. Supreme Court. He may delegate some of the research, brief writing, and arguing to deputy Solicitors-General, but the brief is submitted over his signature, along with others. The S-G is appointed by the president, with approval by the Senate. Thurgood Marshall, the attorney who brought and won the cases known as Brown v. Board of Education of Topeka, Kansas, decided in 1954, the public school integration cases which changed a great deal of America, had been appointed to serve as U.S. Solicitor-General before being elevated to the Court. Archibald Cox, who led the Watergate prosecution of Pres. Richard M. Nixon until the Saturday Night Massacre got rid of him and several of the officials who refused the presidential order to fire him, had also served as Solicitor-General. The DOJ official who pulled the trigger on him, incindentally, was Robert Bork, who was himself "Borked" when his nomination to the high court came before the Senate.

The Solicitor-General, as a regular practitioner before the Supreme Court is thus a most knowledgeable, and cagey, practicing attorney, well attuned to the political realities behind the decision-making.

So I read with interest Charles Fried's take on the recent decision in Gonzales v. Carhart, which rolled back the Roe-Casey right of a woman to choose an abortion regardless of her health needs. Until now, the policy decision had been that if a pregnancy risked the life of the mother, the government was constitutionally dis-empowered from interfering with her decision to save her life at the expense of the fetus, no matter how far along in the pregnancy she was, up until the fetus was emerging from her body when it had its skull crushed, was dismembered, and thus killed. A gruesome business indeed. But the choice was held to belong to the mother, not the neighbors acting through government, or the government even if you leave out the argument that it is really the neighbors imposing their sensibilities and moral views. To the pregnant woman, it is her body and her life which are at stake, over which she should have ultimate control, not some government lawyer or agent.

In Stenberg v. Carhart, the Court held unconstitutional a state statute which prohited such late term abortions, because the statute failed to allow an exception for cases in which such procedures were necessary to save the life or health of the mother.

But then Congress passed a similar law, which also failed to provide an exception to save the life of the mother, but this time the Court, with two new members (Chief Justice John Roberts and Associate Justice Samuel Alito) replacing the late Chief Justice Rehnquist, and the retired Sandra Day O'Connor, said the new federal law, was constitutional.

Why the switch?

Abortion has been the most contested issue in the country since Roe v. Wade was decided legalizing abortion in 1973. Until then women sought out back-alley abortionists, went to Mexico, or killed themslves in great numbers while trying to end unwanted pregancies using septic tools found around the home that caused uncontrolled bleeding or infection. That all ended in 1973 as physicians were permitted to treat the procedure as a legitimate surgical operation in a clean, modern, hospital setting.

This upset the sense of morality of a sizable portion of the population, however, and has served as a political fracture and rallying point for raising millions upon millions of dollars to support anti-abortion candidates. This has forced pro-abortion forces to do likewise, and the result has been an ongoing civil war for over three decades.

In his Op-Ed in the NYT dated April 26, 2007, Prof. Fried provides an analysis of the new anti-abortion decision, the first cut-back of the Roe-Casey right (Roe instituted the constitutional right to privacy re: abortion, while Casey held it constitutional for a government to regulate abortion provided that it not impose an "undue burden" on the right.). But it's not just an analysis of this new decision; it's also a shot across the Court's bow about one of the next decisions about to be made, the one on election campaign money.

Fried seems to be saying that if the Court decides this new matter differently, or wrongly, than before, it is just playing politics, that it's decisions are not grounded in reason, but politics, just as its critics so-often maintain.

Well, duh. Constitutional law is politics, packaged in legal Christmas wrapping. Example: What was the Civil War all about? Preserving the Union? Freeing the slaves? Both? Neither?

Well, the North, which won, fought (a) to preserve the Union after eleven southern states walked out (seceded), and; (b) in the midst of the war, to free the slaves, thus giving the war a humane, ethical dimension that it had lacked. People who didn't care a whit about blacks could still fight for the Union, while those who hated slavery as an abomination could fight for both. After Lee's surrender of the South at Appomattox to U.S. Grant, how did the North consolidate its gains legally? With the South still absent from the Congress, the North, led by the Radical Republicans, the ones who strongly favored abolition of slavery, pushed through the Civil War Amendments, prohibiting slavery (the 13th), giving the former slaves the right to vote (the 15th), the men, anyway, as women in general were not yet allowed to vote, and the 14th, which put equal protection into law, not just Thomas Jefferson's inspiring Declaration of Independence rhetoric.

So, politics led to war, and war led to more politics, and the political gains were written into bedrock Constitutional Law which we continue to interpret and wrangle over through today and tomorrow.

It is thus a little short-sighted to criticize the Court for behaving politically when it is a politically staffed body, since each member of the Court must be nominated by the president and approved by the Senate in one (or two, or several) of the greatest political exercises in the nation. We know that if we elect a conservative president, we're going to be stuck with conservative justices for a long time to come, assuming s/he has some vacancies to fill. And like wise with less conservative presidents. It's worse, however, when the Court picks the president, as it did with George W. Bush in 2000 over Al Gore. For then the president picks the (conservative) nominees (Roberts and Alito) to fill the seats of the justices who picked him (Rehnquist and O'Connor).

Prof. Fried was making pretty good sense until he threw in his concluding thought, that the court should stick to, or enunciate better, legal principle before we think it is just another political animal. He seems to be saying that the wrapping paper is becoming a bit frayed at the corners and the cardboard box sticking through.

Pay no attention to the man behind the green curtain, boys and girls.

That cardboard box contains coal, I'm afraid.

The emboldening, below, is mine:

THE ROBERTS COURT AND ABORTION

Linda Greenhouse of the New York Times reports, below, on the latest abortion case before the Court, now the Roberts Court with Sam Alito, both new numbers appointed by the Bush administration and reflections of its right-wing fundamentalist socially conservative base.  Translation:  don't expect the Roe-Casey right to come through unscathed.  If allowed to stand at all, it will continue to be a hollow-shell of a right, one that the late Chief Justice Rehnquist characterized as a Potemkin Village of a case. 

Catherine the Great of Russia had a minister who, to show her how wonderful the country was faring during a royal procession had new building facades erected along the main street of villages, only to be dismantled and reinstalled in the next village.  Hence Potemkin Village as metaphor for mask, appearance belying reality.

It's hard to believe that government would try to pull the wool over our eyes, isn't it?  Or that government would just as soon see the world through rose-tinted lenses.

Victory is just around the corner in Iraq, too. 

But I digress, or do I?

How does one go about gutting the Roe-Casey right to an abortion at the request of the pregnant person?  By putting obstacles and conditions on the exercise of the right.  Add requirements of a waiting period, for example.  Women in rural areas have to travel to obtain an abortion, which means leaving work and often the parental home for an overnight stay in a distant city.  By requiring waiting periods (for further reflection after mandatory education, read propaganda sessions) the young woman must either return home or spend money for lodging which she may not have. 

In theory she has the right, but in practice she can't afford the hassle.  Result:  the opponents of abortion force her to have the child. 

Do the opponents of abortion rush to help support this child?  Don't be silly.  Since pregnancy is typically the result of moral impurity, the woman should be punished for making bad decisions by being forced to raise this child for the next eighteen years at her own expense. 

This will teach her, and others, that sin does not pay.

We have our own home-grown Taliban, our own home-grown terrorists.  Why do we need to go abroad seeking monsters to slay?  John Quincy Adams so put the question years ago.

Other people's boogie-men are always much worse than our own, wouldn't you agree?

***

Up until 1973, when the Roe v. Wade decision issued, abortion was a criminal undertaking.  Doctors who provided abortion service to needy women (called "abortionists" or "abortion doctors" or simply "the defendant" in an abortion or homicide prosecution) functioned in an in-between world, the good, clean world of respected doctor and an underworld of crime and criminals.

Then there were the neighborhood women, and men, who provided the so-called "back alley" abortions which frequently resulted in perforated uterus, sepsis, uncontrolled bleeding, post-op shock, and death. 

The woman was on her own after the procedure.  Sometimes she chose to forgo these evil choices in favor of a coat hangar or button-hook at home, with equally fatal results.  Or perhaps she accidentally sterilized herself.

Hospitals were allowed to perform "therapeutic abortions" to protect the life of the mother whose pregnancy put her life at risk, or where she was the victim of rape, say by her father.

Then the medical staff could perform the abortion, legally. 

In practice, this translated to the idea that a doctor could perform, or have performed, three unchallenged abortions:  for his wife, his daughter, and his mistress.

As a result of the constant stream of tragic back-alley abortions, usually on poor women (those who could afford it went to Tijuana, Mexico) a reaction slowly grew that something was wrong with a system of law that condemned women to full-pregnancy and motherhood who couldn't afford it, economically or mentally, or socially, which were all intertwined, of course.

The constitutional challenge turned on the notion that a woman's decision to have sexual intercourse and to end the resulting pregnancy was a matter of her own privacy.  She had the right to control her own bodily and reproductive functions.  The neighbors, acting through government, had no right to impose their personal moral, social, and religious views on her by law.  The privacy right in issue was one enunciated by Justice William O. Douglas in Griswold v. Connecticut, of the famous Warren Court, in 1964, a court which famously protected individual rights over rights asserted by government.

One of the major and surprising effects of Roe v. Wade (1973) was the earthquake it triggered among those who believed that women should not have the right to control their own body, reproduction, and freedom to avoid motherhood, or further motherhood.  These are the people who become the American Taliban.

The Roe-Abortion issue quickly became a litmus test for politicians, just as communism had become a litmus test for an earlier generation.  You were either  hard line in either direction or soft on abortion or communism.  Better dead than Red, Pro-life, Pro-choice.  The anti-abortion people, today's religious or conservative right, or both, would have their button pushed in mass-mailers, whereupon they would contribute bucks by the millions and turn out to vote.  This is the big political result of Roe v. Wade.  It galvanizes political support in the form of money and votes.  Preachers rail against it.  Newspapers editorialize for and against.

This has led at least one constitutional scholar to prefer that Roe had never been decided, for it has dragged the country to the right, making it easier for hard-line conservatives such as George Ashcroft and George Bush to take the country by storm, making it all that much easier to go hunting monsters abroad to destroy, such as the Taliban in Afghanistan and terrorists allegedly holed up in Iraq.

Perhaps, the argument must go, we were better off left to our own local devices.  There weren't all that many local abortion prosecutions, and the nation wasn't spiraling down the toilet.

Perhaps this is the argument in favor of hypocrisy. 

It's all a bit too crazy for me to fathom.

But why should things become clear now?

WHAT HIPPIE-DIPPY KUM-BA-YA LAW SCHOOL DID YOU ATTEND?

In case you've missed it, Slate Con-Law correspondent Dahlia Lithwick, a Stanford law grad and student of Kathleen Sullivan, the former dean, is one of the most perceptive and cleverly articulate law writers around.

Check out her column on the argument in Ayotte v. Planned Parenthood of New Hampshire yesterday where the state statute under attack as unconstitutional under Roe/Casey fails to provide an exception to the parental notification provision in cases where the health of the mother is at risk.  The argument comes down to the idea that before the abortion procedure must proceed absent such notification, the doctor must call a judge and ask permission, even at 2:00 a.m. on a Saturday night where the teenager who requests the abortion may lose her ability to reproduce unless the procedure is performed right now.

[It's hard for me to understand what a judge is going to add to informed basis of the decision-making that the doctor hasn't already considered, otherwise she wouldn't have got the judge out of bed to answer the telephone, but that's just me again.]

Justice Kennedy seemed to think this was important however, to "save the statute" from constitutional attack, but counsel for Planned Parenthood said she thought it more important to save the teenager, causing reporter Lithwick to wonder, tongue firmly in cheek I presume, what "hippie-dippy kum-ba-yah law school she attended."

Under Roe-Casey (seemingly reinforced by Stenberg v. Carhart, the "partial-birth abortion" case, which declared unconstitutional a statute that failed to provide for a regulatory exception to protect the life of the mother) a state statute regulating the right to abortion MUST provide unrestricted access to save the life of the mother.  Ayotte deals iwth a statute that fails to provide an exception to protect the health of the mother, which one might think has something important to do with her life, but there I go again.  I guess she has to be at death's door otherwise she's forced to have the baby.  Or she calls her parents, who may want to kill her...  Or speak to a judge who'll really have a lot to contribute, and if not, then why bother calling?  I suppose every local court system in the land could have a duty judge, the way some jurisdictions have a "duty judge" designated to set bail or sign EPOs (emergency protective orders) 24/7 unless busy in trial, in which case, wait until the end of the day or the next recess, whichever comes first.

Have you ever tried to get a judge to make a decision on something important on short notice, especially in something sensitive that might have an impact on his/her future career such as teenage abortion without parental notification?  With the country split on whether this right should exist?  Judges such as Roberts and Alito are likely to say no, and then what is the doctor, and more importantly, the teenage supposed to do?  "Go home, little girl, we can't help you?"  Why am I thinking 'government paternalism' all of a sudden?  Did the youngster ask her father if it was okay to have sex?  Presuming that he isn't the father?  Then why send her back to get his okay to get the abortion?  Somehow I see a disconnect between high-court doctrine and the way life is lived on the ground in the big city often enough, and, no doubt, a few farms, if we still have family farms, not that anyone living on a farm would ever need an abortion, that is.

Con-Law itself sometimes seems to pass rational basis, but that's not what you're tested on, is it.

UNDUE BURDEN

Since the anti-abortion folks have been unable to have Roe/Casey reversed, so far at least, they've done the next most effective thing:  they've succeeded in erecting so many hurdles for the woman needing or desiring an abortion that the right is effectively denied.

Kate Michelman describes here how the requirement to obtain spousal consent is a burden that is quite undue for the abandoned mother who lies in a hospital bed preparing to abort a fourth pregnancy after her husband has abandoned her and their three children.  After having appeared before a hospital committee, which granted approval for the procedure, she is then sent from the hospital when a nurse advises that she must obtain her husband's signature approving.  She has to track him down, explain her plight, and secure his signature.  Then she can continue with her preparations at the hospital for an abortion.

Supreme Court nominee Samuel Alito ruled that this was not an undue burden.  Ms. Michelman respectfully disagrees.

What do you think?

LITHWICK ON AYOTTE

Ayotte is next years abortion case, testing the constitutionality of a state law requiring minors to tell their parents they want an abortion.  Is this an undue burden of the woman's constitutional right to choose, under Roe/Casey?  Probably.  Here's Dahlia Lithwick of Slate's take.

NIBBLING AWAY CONSTITUTIONAL RIGHTS

Suppose someone gave you a constitutional right and then treated you like a felon for trying to exercise it?

There's a bill before Congress that appears to do that.

Since the highly controversial abortion decision, Roe v. Wade (1973), women have had a constitutional right to control their own as decision whether to bring a child into the world when they become pregnant, as opposed to, say, the neighbors telling them what to do.

If it were just the neighbors telling you how to live, you'd probably tell them to bug off, it's none of their business, because it isn't.

But suppose the neighbors get up a petition to present to the city council asking it to pass an ordinance requiring you to have this baby being formed inside your body.  Should you be forced to bring this fetus to term because the neighbors have succeeded in getting the local government to force you to become a mother for the first time, or again? 

Suppose you can't afford to raise a child? 

Suppose you're a child yourself?  Maybe that's why you're pregnant...you don't know what you're doing, or one of those smart little buggers got through.

Suppose you can't even take care of yourself properly, much less another person. 

Suppose you know that your parents, if told, will first beat you and then force you to have this baby, only to give it away. 

Suppose you ask a friend to take you to a neighboring state just across the river, or over an invisible line, to get an abortion. 

Suppose the law makes that a felony, to help a friend get an abortion over the state line to avoid having to tell the parents.

That's what this new bill proposes to do, to make it a federal felony to help a friend in need get an abortion across a state line.

We can look forward to the next FBI series:  I was an undercover abortion transporter for the FBI, featuring dramatic music and the silhouette of a G-man carrying a Tommy-gun, just like in the old days when we had real G-men. The G-man was the feared FBI guy with the same Tommy-gun that ventilated John Dillinger when he exited the movie theater with the lady in red.

"I was a Communist for the FBI" was a book about an FBI guy who infiltrated the Communist Party of the U.S.A.  It was said that had it not been for the number of dues-paying FBI guys who'd infiltrated the Party it would've collapsed a long time before it did.  I wouldn't know, I just lived through those days and rooted for, you guessed it, "the FBI in peace and war."  Another of the slogans of the day.

I guess it was all real. We were fighting Commies in Korea and Vietnam.  The bullets were real enough and a lot of guys died.  All those John LeCarre and James Bond books kept us stoked.

I suppose we can look forward to a whole new genre of literature along the lines of "I Crossed the Line," the amazing story of a young woman who crossed the state line to have an abortion, a felony; had she stayed home it would've been legal!  And the friend who gave her the ride and wound up in the federal penitentiary where she learned how to smuggle drugs instead of scared teenage girls.

Thank God for lawmakers and zealots, for without 'em there'd be no need for conlawprofs, would there?

For more on the wonderful new day we can expect to see, check the continuation below: