Sheridan: Con-Law

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.

ABORTION: TAKING RIGHTS AWAY FROM PEOPLE

WOMEN:  FIRST CLASS IN THEORY, SECOND CLASS IN FACT

We've been reviewing Roe v. Wade (1973), Planned Parenthood of S.E. Pennsylvania v. Casey (1992), Stenberg v. Carhart (2000), and the so-called Partial-Birth Abortion ban, which was declared unconstitutional by three U.S. District Courts including a decision by the Hon. Phyllis J. Hamilton of the Northern District of California, for failing to provide protection for the life and health of the mother.

Abortion is our slow, rolling Civil War, these past three decades. 

Abortion is the litmus test that Sen. Arlen Specter denies exists.  Sen. Hillary Clinton, interviewed earlier this week on the Larry King Talk Show, also denies having a litmus test.  It's hard to imagine there not being one.  Do you think the president is going to appoint a nominee to the Supreme Court who favors abortion?  A woman's right to choose?

Which puts me in mind of a thought.

When is the last time in this country that we have eliminated a significant personal right altogether?

We've eliminated restrictions on personal liberty.  The Civil War did that.

We imposed Prohibition, on alcohol, in 1919 (18th Amend) but had to repeal it 14 years later, in 1933 (21st Amend).

Are we really going to Prohibit a practice that so many women regard as a fundamental right? 

The right to control their own bodies? 

Their own reproductive systems? 

Their own personal relationships with themselves, the men in their lives, their families, and their nation? 

We're going to allow the neighbors to tell women what to do when they get pregnant? 

Simply because the neighbors may have the votes, when combined with others across town, state, and nation whom we don't even regard as having the very limited status as neighbors?

Men are going to dictate to women how to live? In this day and age?  After all we've been through, man and woman?

I have trouble believing it.

I can't see the clock turning back.

Aren't women first class citizens?

Don't women get to decide for themselves?

Blacks have equality, and liberty.  Blacks are first class citizens.

Gays have equality, and liberty.  Gays are almost first class citizens.  Many want to marry, but are not permitted.  Tradition runs against them.  Fighting tradition is a bit like swimming upstream.  Sometimes you need a motor.  Called Lawrence.

Women have equality and liberty, as long as Roe stands.  But Roe seems to hang by a thread.

But now we're going to tell women they don't?

When the Planned Parenthood v. Casey case came up in 1992, it was widely expected that Roe would be overruled by one vote.  Justice Clarence Thomas, highly conservative, was felt likely to vote to kill Roe, which he in fact did, as did Justice Scalia and Chief Justice Rehnquist. 

Justice Anthony Kennedy, a fairly conservative Republican appointee, was felt likely to overrule Roe, also.  However, in a quiet surprise, he decided to vote to uphold the basic right that the Roe case embodies, the constitutional right of a woman to have an abortion to protect her life and health at any stage of pregnancy, and at any time before the fetus can survive outside the womb by ordinary means, i.e. viability. 

The court allowed the states to impose significant restrictions, burdens on the right, nevertheless, that are said to have all but gutted Roe.  A Potemkin Village, Rehnquist called it, a hollow shell, a charade of a case. The woman's right,  nevertheless, survives, theoretically at least, and in practice, but with added difficulty.

The majority said that in large measure the reason for upholding Roe was because overruling it would make the Court look bad ("an institutional price"), as though Constitutional law could change as the political wind blows new members onto the Court as Time removes old members from the Court. 

This is far too arbitrary to command the respect of the nation and the world in a democracy that prides itself on the rule of reason as expressed through law.

There's a better reason for protecting women than protecting the Court's battered prestige after Bush v. Gore.

Women are more important than the Court.

Women are people, and people are more important than the Court.

The Court exists to do one thing: 

To protect the people by preserving their liberties, not by  removing their freedom.

Of course let the Court look out for the interests of government, but only to the extent necessary for it to protect the people, for which government was established, not because government has any independent interest of its own, like the kings of an earlier day.

In Dickerson v. United States 530 US 428 (2000), the question was whether the Miranda warnings we all know and love from real life and television (You have the right to remain silent, anything you say can and will be used against you in a court of law, you have the right to have a lawyer present during any questioning and  any questioning must cease if you want a lawyer present, and a lawyer will be appointed at no cost to you if you cannot afford a lawyer; and having those rights in mind do you give up those rights, and, thank you, why did you do it...) were constitutional rights, or non-constitutional rights.

The question arose in Dickerson because Congress, following Miranda v. Arizona (1964), had enacted a statute purporting to permit federal trial courts to disregard Miranda violations if "under the totality of circumstances" the incriminating statement, admission, or confession, was deemed to be voluntary. 

This is a far less demanding standard than Miranda. 

And since the Supreme Court has supervisory authority over the federal courts, the argument was that Miranda was an exercise of mere supervisory authority, not the far more powerful exercise of the constitutional power of judicial review used to overturn the conviction of Miranda in Arizona.

Chief Justice Rehnquist, who was not a supporter of the Miranda decision, assigned himself to write the opinion in Dickerson. 

Writing for the Court, he nevertheless upheld Miranda as a constitutional law decision, and not merely the exercise of the Court's supervisory authority to make rules for admissibility of confessions.

Why did Chief Justice Rehnquist vote, and write, to uphold a rule of Constitutional Law that he disfavored, and would have voted against?

Because, as he explained in Dickerson, the decision had become so embedded in the popular culture that even the average TV viewer was aware that he or she had the right to this advisement of rights if arrested by police.

In my own experience practicing criminal law for decades, first-time arrestees typically volunteer to their lawyer without even being asked that,

"The police didn't read me my rights." 

'Well, did they ask you any questions?" I ask in return.

"No", they say.

"Well, there ya go. They don't have to read you your rights if they don't ask you any questions."

Disappointment.

They thought they had the police on a technicality, like spelling your name wrong on a moving violation citation, they wish.  One man's constitutional right is another's technicality, like the Fourth Amendment's bad search fountain.  Often no water flows.

The Court in Dickerson appears to have bowed to a certain comfort level that the Miranda right enjoys among the public.  That might also explain the decision in Planned Parenthood v. Casey.

It is easier to shoot a right full of holes, such as the Fourth Amendment, which resembles a tattered doily, than to make it disappear.  Just one little exception here, and one there, and pretty soon all you'll see is air.

Broad rights, such as Miranda, the Fourth Amendment unreasonable search and seizure guaranty, and I suspect, Roe, are gotten rid of in a more politically circumspect manner by gutting them than trying to make them disappear.

They'll never disappear. 

They've been written down.

People remember. 

Rights may be denied, but not disappeared.

Like alcohol during Prohibition, if enough people decide the choice is theirs, they have a way of finding their own level again.

Women will continue to have the Roe right, theoretically, but as Casey teaches, they just won't be able have it very much. 

Not with all the burdens and obstacles put in their way, especially if they happen to be poor and distant from the abortion clinic, the people least able to afford an unexpected pregnancy.

This way women as a group are not forced to think of themselves as second-class citizens again, it's just that one by one they will be denied what they require to be first class citizens.  One at a time, one after another will be first class in theory, but second class in fact. 

And when we begin reading again about back alley abortions, motel room abortions, self-inflicted abortions with coat-hangers by scared teenagers who bleed to death, sepsis setting in and killing parochial school girls too frightened to see a doctor or visit a hospital, fetuses left in high school rest rooms, doctors indicted and tried for trying to help young women in trouble, with hung juries, acquittals, and imprisonment among the results, we'll be back to the bad old days before Roe.

As a student pointed out, we are more accustomed today to assume that we have a right to antiseptic, professional medical care. 

Amateur abortions are the antithesis of that. 

We won't stand for medical filth that kills innocent people unnecessarily.

That's what opponents of Roe are fighting for, whether they realize it or not.

I think my MYOB principle applies.

It's none of your business, mind your own business, if (assume I'm a woman) I opt for an abortion.

If men were capable of becoming pregnant, the abortion right would be a solid lock, I expect.

Why is there no public outcry when men have a vasectomy or women have their tubes tied?

Oh, yes, I know, it goes back to your definition of life.  This is your opportunity to stick your nose into other people's business.

In China, where the government's single-child family policy is law, committees of local party women keep track of the menstrual status of women in the building and workplace, every building and workplace.

In this country, we grant political asylum to Chinese women fleeing from that policy.

Yet we want to allow the neighbors to poke their noses into your pregnancy against your wish.

I'm having trouble imagining how the anti-Roe people think they can turn back this clock.

I don't mind seeing some restrictions on liberty relax, as we've seen over the past several decades, but I do suspect that we have a major premise that needs to be elevated into a doctrine of constitutional law.  It holds that the recognition of an individual liberty by the Supreme Court of the United States amounts to an unbreakable promise that the Court will not later take away this right just because its membership changes.  Otherwise the Court is an Ass, as Charles Dickens would put it.

A one-way ratchet, it's been called, this notion of not backsliding on important individual civil rights.

"The One-Way Civil Rights Ratchet," I'm calling it.  TOW-CRR. 

"No Backsliding On Rights Once Recognized."  NBO-ROR.

Go for it!