The Future of Early Abortion

The Future of Early AbortionAuthor(s): JOHN ROBERTSONSource: ABA Journal, Vol. 75, No. 10 (OCTOBER 1989), pp. 72-75Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20760707 .

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FutSe

of Early

Abortion



BY JOHN ROBERTSON More by what it said than what it did, the U.S. Su preme Court in Webster v. Repro ductive Health Services made

OCTOBER TERM ciear that a wide 1 9 8 8 range of restric tive abortion regulations will now be constitutional. With Justice Anthony Kennedy voting with the majority in Webster, five justices now appear likely to uphold most, if not all, of the regulations struck down in post-Roe cases.

A state may now enact restric tions long sought by right-to-life groups, such as 24- or 48-hour wait ing periods, detailed informed-con sent requirements, greater protection for the viable fetus, restrictions on the abortion method, and notification of parents of minor children and possi bly of fathers. It is also likely that abortion clinics can be more widely regulated.

The abortion decisions called into question include Planned Par enthood v. Danforth, 428 U.S. 52 (1976) (invalidating written spousal and parental consent laws and a ban on saline abortions); City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (invali dating requirements for hospital abortions after the first trimester, 24 hour waiting periods and parental consent); and Thomburgh v. Amer ican College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating reporting requirements and risk disclosure).

This new power to regulate and restrict abortion, added to existing restrictions on public funding of abortion, will bar access or make it more difficult for poor, teen-age and rural women. But these restrictions, as important as they are for the groups directly affected, do not go to the heart of Roe?a pregnant wom an's right to early abortion.

Since most abortions occur long before viability, the key question after Webster is whether state laws bar ring first and early-second trimester abortions are constitutional.

Despite ominous hints that early abortions may be scrapped, Webster does not definitively sound their death knell. Justice Scalia has de

John Robertson is a professor of law at the University of Texas in

Austin. The author thanks Jean Love and Michael Sharlot for their help in preparing this article.

clared his eagerness to overrule Roe outright. But there are several rea sons to think that Justice O'Connor might still vote to invalidate a crim inal ban on all early abortions. And the plurality (Rehnquist, White and Kennedy), while rejecting the trimes ter approach of Roe, acknowledges that abortion is "a liberty interest protected by the ?ue Process Clause." In so stating, they take pains to dis tinguish Griswold v. Connecticut, 381 U.S. 479 (1965), thus not over ruling entirely the notion of funda mental rights over procreation.

Of course, the plurality's recog nizing a "liberty interest" in abortion does not mean that the interest would prevail over state interests in restrict ing abortions. It leaves open the cru cial question of the standard of scrutiny then to be applied.

The question will be whether a state ban on early abortion "permis sibly furthers the State's compelling interest in protecting potential hu

man life." If "compelling" has the usual meaning of trumping a funda mental right, then a ban on first trimester abortions would appear to "permissibly further the State's in terest in potential life."

But the plurality has not yet said that. When that issue is squarely pre sented, the plurality may find that while the interest in potential life is "compelling" throughout the preg nancy, the state may not "permissi bly further that interest" by banning most early abortions.

Hints that Roe is not utterly doomed may be gleaned from other language in the plurality opinion. Rehnquist is careful to distinguish Griswold, and to deny the dissent's suggestion that "legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as invitation to enact abortion regulation reminiscent of the dark ages." Can we not read the "dark ages" as the pre-Roe time when women were denied all access to early abortions?

Rehnquist adds that "to the ex tent indicated in our opinion, we would modify and narrow Roe and succeeding cases"?not exactly a declaration that Roe is dead.

However the Court ultimately decides the question of early abortions, O'Connor's vote will

be crucial. While she joined the plu rality and Scalia in upholding the Missouri law, she found the law con sistent with the premises of Roe, and did not join that part of the plurali ty's opinion discussing the case. She stated (and was taken to task by

ILLUSTRATION BY TIM JONKE ABA JOURNAL / OCTOBER 1989 73



Scalia for this position) that "[w]hen the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so care

fully."

Although O'Connor avoided the topic of Roe itself in Webster, we do have her views from her dissent in Akron. There she made clear her dis satisfaction with the trimester ap proach. State interests in maternal health and potential life existed throughout the pregnancy, she said, and could be protected at all times, as long as they did not significantly burden the abortion decision. If there was no significant burden, only a ra tional relation to that interest need be shown.

But she is less clear about the outcome if the burden on the wom an's decision is significant, though the implication is that some form of heightened scrutiny would apply. O'Connor believes that the state may not "unduly burden" the woman's decision to abort, but she has never told us what would constitute an "undue burden."

As with the plurality in Webster, it is uncertain whether O'Connor

would accept a state ban on most

early abortions. It is necessary to ex amine the precise language of her Ak ron dissent:

"[T]he point at which these in terests [maternal health and poten tial life] become compelling does not depend on the trimester of preg nancy. Rather, these interests are

compelling throughout pregnancy. "The state's interest in potential

human life is likewise extant throughout pregnancy. In Roe, the Court held that although the state had an important and legitimate interest in protecting potential life, that in terest could not become compelling until the point at which the fetus was viable. The difficulty with this anal ysis is clear: potential life is not less potential in the first weeks of preg nancy than it is at viability or after ward. At any stage of pregnancy there is the potential of human life. ...

"The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point af terward. Accordingly, I believe that the State's interest in protecting po tential human life exists throughout the pregnancy."

As with the plurality's opinion in Webster, one could conclude from this language that Roe is dead at its core. If O'Connor is using the term "com

pelling interest" as it has usually been used in constitutional adjudication, that interest would ordinarily trump a fundamental right. If the interest in potential life is compelling through out pregnancy?indeed, is equally compelling at all stages?then the state would be free to ban first-tri

mester abortions to protect its com

pelling interest in potential life. But the term "compelling" could

also be used without this measure of finality or absoluteness. It is possible to use the term to mean that a state interest is very important, of great substance, will weigh very heavily in the balance, but is not so absolute that

it trumps all fundamental rights in all circumstances.

In this sense of "compelling state interest," the state may be justified in

regulating or restricting a fundamen tal liberty in order to advance that interest as long as it does not totally prevent its exercise. It may increase the costs or burdens on persons ex ercising that liberty, so long as they are not totally deprived of the oppor tunity to do so. Which burdens and costs are supportable and which are too intrusive would then be deter

mined on a case-by-case basis.

While this use of "compelling in terest" does deviate from its tradi tional constitutional usage, there are several reasons for thinking that O'Connor (and possibly other justices in the Webster plurality) may be us ing it in this sense.

If this reading is correct, then first-trimester abortions, perhaps re stricted and regulated to a greater ex tent, would remain immune from state prohibition.

One reason for viewing O'Con nor's use of "compelling" in this light is her Akron dissent, where she hints that the state's interest is not absolute. For example, in the last sentence of the long passage just quoted, her emphasis is more on the recognition of the interest in poten tial life prior to viability than on its weight. The overall thrust of her dis sent is that the trimester approach is untenable and contradictory, in part because the various state interests exist throughout pregnancy and do not appear magically as the calendar turns.

The state's interest in potential life thus might be viewed as compel ling throughout the pregnancy in the sense that it must be acknowledged, but it does not automatically trump the woman's competing liberty inter est in avoiding the burdens of an un wanted pregnancy.

A conclusion that the woman's liberty interest outweighs the state's interest in potential life is clearest

when the pregnancy would directly threaten the mother's life?a woman with serious heart disease or high blood pressure, for example, who might suffer serious medical conse quences or even die if denied an early abortion. If a compelling interest al ways and absolutely trumps a fun damental right, then the state could ban abortion in that case. But one would expect the Court to find that the interest in potential life, while compelling, is not compelling enough, in light of the effect on the woman. It is possible that serious risks to health might be treated similarly.

O'Connor has hinted

that the stated

interest in

regulating abortion

is net absolute.

74 ABA JOURNAL / OCTOBER 1989



If this approach is correct when the woman's life or health is at risk, then it is at least an open ques

tion?not yet foreclosed by O'Con nor's Akron dissent?as to whether protection of the earliest stages of po tential life will always trump a preg nant woman's interest in terminating a first-trimester pregnancy when her life or health is not medically threat ened. The burdens on a pregnant woman of unwanted pregnancy would then have to be weighed against the state's interest in poten tial life, when that life is in the first stages of pre- or post-implantation development. Looked at carefully, strong arguments remain for finding that the "compelling interest" in po tential life is not compelling enough even here.

First, nine months of unwanted gestation, together with relinquish ment for adoption or unwanted child rearing, is a very significant burden. Our society's long tradition of free dom from enforced physical intru sion would give the woman a presumptive right to avoid such bur dens after initiation of pregnancy. In deed, such burdens differ only in degree and duration from serious threats to her life or health.

Second, the state's interest in po tential life is not equally compelling throughout all stages of pregnancy.

While O'Connor in Akron warned that dividing a pregnancy into stages cannot be anything but arbitrary, closer reflection may lead her to re vise that view, for the biologic facts of embryology and fetal develop ment cannot be denied.

There are significant differences between such preimplantation stages as fertilized eggs, zygotes, morulae and blastocysts and post-implanta tion stages of embryo and fetal de velopment. Even post-implantation stages differ significantly. For ex ample, previable fetuses may reason ably be viewed as having different status before and after the develop

ment of the brain structure and nerv ous system essential for brain activity, sentience and viability.

Protecting potential life in the early stages of pregnancy might be justified when the burdens imposed on women are minimal or moderate, but not when they include the phys ical rigors of gestation and child birth.

There is a further reason why O'Connor (and possibly one of the plurality justices) might not permit the ban of most early abortions. Such a holding would call into question the continued validity of Griswold and the widely recognized right to use

birth control. Some widely used forms of birth

control?the IUD and birth-control pill?often operate by preventing im

plantation of a fertilized egg or Zyg ote in the uterine wall. If the state has an equally compelling interest in potential life from the time of fertil ization to the time of birth, as a ban on early abortions would imply, then it could ban use of post-fertilization birth-control techniques as well. The woman's interest in avoiding gesta tion would count for no more prior to implantation than it does after.

One could argue that a ban on

post-fertilization birth control would not overturn Griswold per se, for it would still allow a range of other de vices that are truly contraceptive? that prevent fertilization itself from occurring.

But permitting the state to pro hibit post-fertilization means of birth control does open the door signifi cantly to banning prefertilization methods as well. If women can be forced to have fertilized eggs inside their bodies implant and come to term to protect potential life, should it really matter that fertilization has not yet occurred? Could not persons strictly committed to potential life ban all forms of contraception to as sure that all potential life is realized from sexual union?

For these reasons it seems far from settled that the core of Roe?ac cess to early abortions?is dead.

A "chill wind" (Justice Blackmun's phrase) is shaking the trimester structure of Roe, but it is not neces

sarily an ill wind for early abortions. Many abortion regulations that were

previously invalidated as violations of Roe may now be re-enacted. But to the extent that the state tries to pre vent abortions solely or primarily to protect the earliest stages of prenatal human life, the most plausible con clusion is that the question remains open.

When that question is squarely presented, the justices?in particu lar, O'Connor, who appears to be the key vote?will have to weigh the im portance of post-fertilized life against the gestational and other burdens of unwanted pregnancy. Is that burden "undue" when the potential life has not yet developed the nervous sys tem on which sentience and cogni tion depend? When the early embryo is just beginning to show differen tiated organs? When the fertilized egg and zygote have not yet implanted in the uterine wall? Her answers to these questions will determine the consti tutional fate of early abortions.

A "chill wind" is not

necessarily an ill wind for

early abortions.

ABA JOURNAL / OCTOBER 1989 7?



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The Future of Early Abortion