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Abortion rights and wrongs: undue burdens - the rhetoric is pro-'Roe,' but the reality is anti-choice.

When the Supreme Court struck down the men-only admissions policy at a Virginia military academy this summer, attorneys who have been struggling for more than two decades to insure that our Constitution covers women breathed a collective sigh of relief. The decision in U.S. v. Virginia was significant not only for its robust affirmation of the constitutional protections against sex discrimination but also for its striking contrast to the state of the law concerning another critical area of women's rights: the right to privacy.

In the twenty-three years since Roe v. Wade, we have witnessed a steady decline in constitutional safeguards, culminating in the severely compromised 1992 decision in Planned Parenthood v. Casey. Roe treated the decision to have an abortion like any other fundamental constitutional right. Government had to stay neutral; it could not enact laws that pushed women to make one decision or another. Courts required a state to justify any interference with the right to choose abortion by showing that it had a "compelling interest" and that restrictions on pre-viability abortions were limited to those that narrowly and precisely promoted real maternal health concerns. By contrast, Casey allows state and local laws that favor fetal rights and burden a woman's choice to have an abortion, so long as the burden is not "undue."

The evolution of the constitutional protection of childbearing decisions from strict scrutiny of any restrictions to the undue-burden test represents a political odyssey that began shortly after Roe and was accelerated by Presidents Reagan and Bush when they appointed Justices O'Connor, Kennedy, Scalia, Souter and Thomas. Also, beginning in 1983, the US. Solicitor Generals under Reagan and Bush routinely urged the Supreme Court, on behalf of the federal government, to overturn Roe. No other fundamental constitutional right in the history of this country has ever been so frontally attacked and so successfully undermined, and all in the course of two decades - the same two decades that sustained advances in other areas of women's rights.

Shortly after the Roe decision, state legislatures began passing laws in hopes of creating exceptions to it or of opening up areas of law that Roe did not directly address. Teenagers were the first successful target. In 1979 the Court endorsed state laws that required parental consent, as long as they were accompanied by a complicated system whereby minors could assert their privacy rights by requesting a hearing before a state judge on whether they were "mature" or an abortion was in their best interests (Bellotti v. Baird). The diminution of rights ignored the reality of teenagers' lives. Furthermore, state laws don't require parental involvement for childbearing, pregnancy testing or other sexually related teen health care. Teens can routinely make decisions such as whether to marry or give up a child for adoption, the abortion exception perpetuates the stereotype that a decision against motherhood violates nature and what a "good" and "natural" woman should do.

In 1980 the Hyde Amendment, which prohibited Medicaid from covering most abortions, was upheld by the Supreme Court by a 5-to-4 margin (Harris v. McRae). The Court abandoned the neutrality required in Roe, finding that, for poor women, government could promote childbearing over abortion, so long as it did so by manipulating women through public funding schemes, not criminal laws.

Justice O'Connor quickly fulfilled President Reagan's expectations. Dissenting in City of Akron v. Akron Center for Reproductive Health (1983), she called for a radical erosion of Roe and substitution of a novel "undue burden" standard for the strict scrutiny test. By 1989, after the arrival of Justices Kennedy and Scalia and the elevation of William Rehnquist to Chief Justice, there were no longer five votes to preserve reproductive choice as a fundamental constitutional right. The Court's ruling in Webster v. Reproductive Health Services (1989) demonstrated this new reality when five Justices expressed hostility toward Roe in differing degrees and essentially called for states to pass legislation banning abortion in order to test the law.

Three years later, in Planned Parenthood v. Casey, the strict judicial scrutiny established in Roe was finally abandoned. Although the plurality opinion of Justices O'Connor, Kennedy and Souter said they were not overturning Roe's central premise that abortion is a fundamental right, they substituted the weak and confusing undue-burden standard for the original requirement of strict scrutiny. This opened the door to a host of state and federal criminal restrictions designed to steer women away from abortion and to promote the rights of the fetus throughout pregnancy. One possible but untested silver lining is that the new standard requires evaluation of both the purpose and the effect of anti-abortion laws. By requiring courts to consider the reasons behind passage of abortion restrictions, the "purpose test" may prevent anti-choice legislatures from further diluting women's rights under the sham of promoting their health.

The Pennsylvania laws upheld in Casey dictated counseling and mandated waiting periods, finding them to be burdensome but not unduly so. These laws perpetuate stereotypes about women the Court has rejected in other contexts - that women are victims of their biology and emotions, that they cannot make serious moral or health decisions without government-scripted lectures, that motherhood is the natural role for women and special protections must be erected to stop women who seek to abandon their proper place. The absurdity and invasive nature of applying mandatory waiting periods and informed consent requirements to all women was noted by one Montana state judge. In a 1995 ruling blocking enforcement of the states mandatory-delay law on state constitutional grounds, the judge said: "One must inquire as to those cases where a woman seeking an abortion might be a physician herself, or, let us say, a rocket scientist.... It may, then, be suggested that [the law]...impermissibly infringes on a woman's autonomy, and thus, her right to privacy." No comparable legal regime governs men's reproductive or sexual choices. It is precisely this kind of state-sanctioned discrimination and stereotyping of women's psychological makeup that is found unconstitutional in the Supreme Court's decision this term in the Virginia case.

Since Casey, with the exception of two very limited, technical rulings this term. the Supreme Court has yet to take a case addressing the extent to which government can restrict a woman's right to choose abortion. Meanwhile, conservative members of the Court are working through the back door to eliminate even Casey's limited protective shadow. Chief Justice Rehnquist continues to promote a legal theory, which he first discussed in his Roe dissent, that would drastically limit the victories women have won. In Roe, Rehnquist argued that the Court should not have struck down the entire unconstitutional Texas law banning virtually all abortions. Rather, he claimed, the Justices should have found it invalid for some women but left it on the books and enforced it in other, presumably constitutional, situations.

This remedy fits into the conservative Justices' strategy to limit rights. It could also lead to both frightening and absurd results. Consider the Guam abortion ban, passed in 1990 in the wake of the Webster decision. Chief Justice Rehnquist believed it was constitutional as applied to post-viability abortions and thus should have remained on the books in Guam. Yet postviability procedures are not performed there. Nevertheless, if the law had remained on the books, doctors would have feared prosecution any time they provided abortions earlier in pregnancy.

A schizophrenia now exists in the field of women's rights. While education and job rights receive very strong constitutional protections, women cannot control the decisions that enable them to take advantage of educational and career opportunities.

Ironically, rhetoric about women in the area of privacy law has increasingly reflected a feminist tone. While the Casey plurality diluted women's rights, it spoke in bold feminist phrases: "Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." We are waiting for reality to match this rhetoric.
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Title Annotation:Supreme Court; The Supremes: Which Way Will the Court Swing?
Author:Benshoof, Janet
Publication:The Nation
Article Type:Cover Story
Date:Oct 14, 1996
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