The Supreme Court heard arguments on Wednesday in a case involving Mississippi’s law banning pre-viability abortions after fifteen weeks. For those not familiar with court terminology, here is a brief primer on the legal terminology that you might hear during coverage of this case.
SUBSTANTIVE DUE PROCESS & THE RIGHT TO PRIVACY
The Bill of Rights contains a rather extensive list of “enumerated” rights. It also contains a catch-all provision in the Ninth Amendment. Both the Fifth Amendment and Fourteenth Amendment contain a due process clause which forbids the denial of liberty without due process of law. Over the years, the courts have had to deal with the limits of the rights contained in the Bill of Rights. For example, the First Amendment expressly covers two forms of communication — oral (free speech) and written (free press). But that leaves issues about other forms of expressive conduct (is dancing or painting speech) and whether press was limited to news or does it cover other written publications. Similarly, there is debated about the due process clause — does it merely require appropriate proceedings (laws being properly passed, cases being properly head) before a person is deprived of their freedom (i.e. goes to prison) or does it also provide substantive protections against the passage of laws that eliminates rights.
Over the years, the Supreme Court has filled in these gaps. While there is no express right to privacy, the Supreme Court has found a right to privacy implicit in several parts of the Bill of Rights (like the Fourth Amendment) and have thus recognized that a right to privacy is part of “substantive due process.” This right to privacy includes a right to bodily autonomy and has been applied to several areas starting with contraceptives. It now includes such topics as abortion and sexual orientation (banning laws that criminalize homosexual sexual acts).
STARE DECISIS
Stare decisis is a nice legal term that basically expresses a fundamental principal of the legal system in the U.S. (and other “common law” countries). Basically, an appellate decision in a case sets forth a binding rule of law that the court that issued the decision and lower courts must follow in future cases. Of course, there are times when a decision is wrong. And a higher appellate court in a later case can correct a misstatement by a lower court. But the issue is when should a court correct its own mistakes. Because parties act in reliance on an understanding of what the law is — either not engaging in an act in the first place or settling a case based on an expectation of what the likely result will be if they keep on fighting — it is important to keep the law settled. If courts overturn prior decisions at a whim, parties will not see a need to act as if they are bound by those decisions.
Because judges are human, there will be times when they get it wrong. As such, the issue is when should a court recognize its own mistakes and fix them. Some justices (looking at you Justice Thomas) think that a court should always be free to change a wrong opinion. But most think that it takes something more. The reason for requiring something more is that the change of a single judge or justice should not alter the law. After all, courts are merely supposed to declare what the law is, not make the law. So the personnel of the court should not matter. For lower courts, most appellate court assign cases to panels rather than the entire court. If a judge can overrule a decision with which she disagrees, the result of an appeal would turn on which three judges get the case. (To some extent, appeals do depend on the composition of the panel as some judges have reputations for being more willing to interpret the facts in such a way as to give relief. But normally, the judges are at least applying the same rules.) Thus, most justices state that it takes more than a simple belief that a prior decision was wrong for the court to overturn it.
This respect for precedent is why it is unlikely that the majority in this case will say that Roe was wrong in recognizing a right to abortion. However, there is a decent chance that the majority will revise (again) the test that is applied to determine whether a law unconstitutionally infringes on that right.
COMPELLING INTEREST VS. SUBSTANTIAL BURDEN
Over the years, the courts have come to the conclusion that most constitutional rights are not absolute. After the New Deal era, the courts devised three basic tests for whether a law is valid.
First, the rational basis test applies to most laws. If a law does not infringe on a basic right and contains a routine classification, there merely needs to be some justification for the act. If there is any colorable state interest implicated by the statute and the stature arguably advances that interest, then it is valid. As can be imagined, there are very few laws that violate the rational basis test. Maybe a law requiring a person to say “Mother May I” three times before starting her car might fail, but any such law is unlikely to be adopted.
Second, there is what is referred to as intermediate scrutiny. Intermediate scrutiny tends to apply to classifications that are seen as improper (such as gender) but not expressly protected by the Constitution) or to regulations that infringe on some rights without directly impacting the core of the right (some regulations of media). Intermediate scrutiny asks if the law furthers an important government interest and does so by means substantially related to that interest. It is harder for a law to pass this test. When this test is invoked, the supporters of the bill have to actually produce some evidence to support their claims about the law. If the law is based on a stereotype about a group not supported by any evidence, the law is likely to fail.
Third, if a law directly implicates a protected right or is based on a group classification expressly forbidden by the Constitution (like race), courts generally apply what is called the compelling interest test. As the name implies, this test asks whether the reason for the law qualifies as a compelling public interest. In other words, is this something that any reasonable person would agree is something that the government should be doing like protecting health or public safety. The test then asks whether the law is narrowly tailored to advance that interest and uses the least restrictive means. In other words, the importance of the state’s interest does not justify a law that infringes on an important right in a way that is not necessary to achieve that purpose.
Originally, in Roe, the majority opinion applied the compelling interest test. In doing so, the Supreme Court divided a pregnancy into trimesters. In the first trimester, there were no compelling interests. In the second trimester, the only compelling interest was maternal health (i.e. preventing unsafe abortions). It was only in the third trimester (post-viability) that protecting the fetus was a compelling interest.
The problem with the trimester approach is that abortion is a medical procedure. And there are a lot of routine regulations that apply to medical procedures such as requiring informed consent and, for minors, parental consent. And the framework in Roe implied that such normal rules could not be applied to abortions during the first trimester. The correct remedy for this problem would have been to relax the trimester framework to allow regulations to protect maternal health during the first trimester. Instead, what we got was a decision (Casey) which brought back an old test — the substantial or undue burden test. This test is what was used prior to the post-New Deal period for reviewing constitutional claims. It is also what Congress adopted for religious freedom cases after the Supreme Court took a narrow view of the Free Exercise Clause. The problem with an undue burden test is that what is an undue burden can quickly become rather subjective. The substantial burden test allows a lot of regulations that would have failed under the compelling interest test.
As applied in Casey, while the Supreme Court no longer follows a strict trimester approach, total bans on abortion prior to viability were viewed as undue burdens on the right to an abortion. The Mississippi law challenges the use of viability as a bright (although potentially moving) line and proposed allowing state legislatures to define the line as they see fit. There are legitimate scientific reasons for relying on viability (as discussed in Roe) as the place where state interests are significant enough to justify a ban on abortion. All laws related to assuring that the woman is making an informed decision and that the procedure is as safe as possible impose some burden on the right to choose, but courts can try to see if the burden of making it harder to get an abortion is justified by the benefit to the woman’s health. Once you add in protecting the unborn fetus pre-viability, it is hard to see where the line should be drawn. Viability is the point where, in theory, there is a real chance that the fetus would survive a forced early delivery. Prior to that, when does the odds that the pregnancy will not end in a miscarriage decline to the point that the interest of the fetus outweighs the rights of the woman.
And how much time is enough time to permit the woman to exercise her right to have an abortion especially when you add in mandatory waiting periods and other laws that effectively limit the availability of abortion to a few facilities in urban areas (making seeking an abortion a two- to three-day trip for some women). Since laws like Mississippi use gestational age, the starting date is the last menstrual cycle. Since the first clue for many women is a missed period, that means that at least four or five weeks have passed before the woman even has a clue that she is pregnant. If you assume that a woman’s first thought is that she is just a little bit late (not necessarily unusual) and then that she takes a home pregnancy test before going to get a confirming test from a doctor, the soonest that most women have confirmation that they are pregnant will be around the six-week mark. When you add in the required waiting period between the first visit to an abortion clinic and the actual abortion, the length of time for the woman to consider her options before she has to seek an abortion is not that long.
And when you think about, the argument for a short deadline (eight weeks, ten weeks, fifteen weeks) is really perverse. Conservatives argue in support of the requisite waiting period that the woman should take time to think about her options before having an abortion. But a short deadline forces the woman to make that decision quickly without taking the time to think about her options. Of course, the reason for these laws is not a belief that women need to think before they get an abortion. It’s that the groups backing these laws want to prevent the woman from having an abortion. But, as long as there is a right to an abortion, these groups have to pretend that they are advancing some legitimate interest.
I would be shocked if there were five justices who are willing to say that Roe was wrong. And if there are five members of the Supreme Court willing to say so, the public should make the Senators who promised us that this would not happen pay the political price for either being fools or liars. But I can see a plurality decision that says that these laws are not automatically invalid and kicks it back to the lower courts to decide whether, under the facts on the ground in that state, such a restriction is an undue burden on the ability of women to get abortions in that state.
