possiblel change of mind

Johnsen, Dawn Elizabeth djohnsen at indiana.edu
Fri Jul 22 22:04:00 PDT 2005

Intrigued by Sandy's thoughtful email (and quickly scanning this thread), I couldn't resist this bit of self-promotion, which seems on point.  I just posted today at Salon.com's invitation, the following op ed on John Roberts' nomination and the right to privacy, which includes of particular relevance here the point that there is more than one way the Court could overrule Roe.  What I believe to be the more likely way--incremental evisceration of the right, for growing numbers of women, through mounting state and federal restrictions (against a backdrop where already some states have only a handful of abortion providers), perhaps followed by an express overruling of what really is only the facade/shell that Rehnquist describes the undue burden in his Casey dissent -- I think clearly would not be in anyone's interest, including the Democratic Party's (and I think even an express overruling is far less clearly helpful to the Democratic party than does Sandy, though I definitely appreciate his point--in any event, I would say not worth the cost).  I also don't think we should underestimate what Congress might do, especially how far they could go in imposing harm with restrictions even short of bans.  The women who suffer most from any type of restriction -- ban or less -- obviously are those women who lack resources to deal with it, to get to the nearest legal provider, whether due to poverty, youth, geographic location, abusive home situation, etc, and these also obviously do not tend to be politically powerful.  Finally, when at the Clinton Office of Legal Counsel, we opined after much study (I believe in a letter to Congress that would be publicly available, though I no longer have a copy)--if my memory is good-- that the billl criminalizing the interstate transport of minors raised serious constitutional concerns, but I certainly wouldn't want to have to count on the Court to invalidate it.  Re the commerce power, Republican admins tried (very weakly) to raise congressional power concerns about FACE as I recall, but phrased it more like constitutional policy concerns (something they did when the law was strongly against them), and a little more strongly against the Freedom of Choice Act in the late 80's early 90s, but clearly having in mind how they would like to transform the law (and even then the arguments were weak).
(In addition to the piece below, I posted a longer discussion of how the Court might overrule Roe without doing so expressly, entitled "What O'Connor's Retirement Means for Reproductive Liberty"  on July 5 on the American Constitution Society's guest blog at http://www.acsblog.org/cat-guest-bloggers.html.)
Dawn Johnsen

Would Roberts respect privacy? 
By Dawn Johnsen 

http://www.salon.com/opinion/feature/2005/07/22/roberts_privacy/index.html <http://www.salon.com/opinion/feature/2005/07/22/roberts_privacy/index.html>  

Would Roberts respect privacy?
Don't be fooled: There's more than one way for Bush's high court nominee to undermine reproductive rights.

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By Dawn Johnsen

<http://www.salon.com/opinion/feature/2005/07/22/roberts_privacy/print.html> <http://www.salon.com/opinion/feature/2005/07/22/roberts_privacy/email.html> 

July 22, 2005  |  Democrats on the Senate Judiciary Committee have not rushed to judgment -- and rightly so -- on President Bush's Supreme Court nominee John G. Roberts. They have made clear that just as Bush considered prospective nominees' judicial philosophies and legal views in making his selection, they too will thoroughly examine Roberts in the coming weeks. The Constitution's checks and balances demand no less. 

For guidance, senators can look first to the Constitution, but also to Ronald Reagan's administration (in which Roberts served). Reagan's Department of Justice wrote in 1988: "There are few factors that are more critical to determining the course of the Nation ... than the values and philosophies of the men and women who populate ... the federal judiciary." This admonition introduced a lengthy report detailing what was at stake in the Supreme Court at that time, and was followed by a plea for close Senate scrutiny of nominees: "It is hoped that this report will allow Members of Congress of both parties, pursuant to their constitutional responsibilities, to assess judicial nominees in the most thorough and informed manner possible." 

The Reagan administration called for justices who would take away rights and overrule precedent, including the right to privacy in Skinner vs. Oklahoma (forced sterilization), Griswold vs. Connecticut (criminal ban on contraceptive use) and Roe vs. Wade (criminal ban on abortion). Reagan's radical constitutional agenda underscored the report's overarching point: The legal views of nominees matter greatly to the future of our nation and the lives of Americans. 

The Senate has a responsibility to examine Roberts on a range of important issues, especially those on which his record raises concerns and for which his vote will matter most. Front and center among them should be whether he would uphold long-standing constitutional protections for the right to privacy, including the reproductive health and liberty of women and their families. Does Roberts accept that the Constitution protects an individual's basic right to privacy from government intrusion into intimate matters so central to personal liberty as whether and when to have children? 

Much of the initial public debate has missed the mark in two critical respects, precisely in ways President Bush undoubtedly hoped it would: first, by focusing on whether there is smoking-gun evidence that Roberts would vote to overrule Roe, and second, by seeking to dismiss the issue on the grounds that Roberts' vote would not be sufficient to expressly overrule Roe. 

There is no smoking gun in Roberts' past: President Bush scrupulously -- and predictably -- avoided selecting a nominee who unequivocally and personally has called for an overruling of Roe. In his capacity as principal deputy solicitor general, Roberts did urge the court to overrule Roe, and in a case in which the issue was not even before the court: "We continue to believe that Roe was wrongly decided and should be overruled ... The Court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution." 

The official line is that Roberts might have been setting forth the president's views, not his own. But Roberts was not just any lawyer, representing just any client: He was a top political official in the first Bush administration (and earlier a political hire in the Reagan administration), appointed and working directly to promote its legal agenda, which no one questions he generally endorsed. The brief is no smoking gun, but it is reason for grave concern -- especially against the backdrop of Bush's promise of justices in the mold of Antonin Scalia and Clarence Thomas and the anti-choice right's unequivocal support for Roberts and utter belief that he is not another centrist "mistake" like Republican appointees Justices Sandra Day O'Connor, David Souter and Anthony Kennedy. 

All this strongly suggests that Roberts will not uphold the right to privacy and makes imperative careful Senate scrutiny. It is not inconceivable that Roberts urged the court to overrule Roe only because he was directed to do so and against his own beliefs, but if that was the case, he certainly will have ample opportunity to explain that in his confirmation hearings. 

With regard to whether Roe is at risk: Supporters of Roberts (and others) emphasize that President Bush seemingly would need two appointments to achieve an express overruling of Roe. One obvious response is, on a court this closely divided, every vote counts. With the stakes so high, should concern be delayed until Roe's demise certainly is just one vote away? The 1973 court decided Roe by a bipartisan 7-2 margin. The country already has lived through a concerted Republican effort in the 1980s to appoint anti-choice justices who would overrule Roe, an effort that brought us to the brink of a return to the pre-Roe days of dangerous and illegal abortion. 

Equally important to the Senate's consideration of Roberts, there is more than one way to "overrule" Roe. We clearly are just one vote away -- Justice O'Connor's vote -- from the more likely path: an evisceration of the right through the court's upholding of mounting government restrictions and obstacles short of absolute criminal bans, restrictions that would combine with private forms of interference such as clinic blockades and violence to make legal abortion services far less available, far more expensive and far more dangerous. The resulting unequal availability of legal services would be reminiscent of the pre-Roe patchwork, even absent an express overruling. Roe's practical effect, it should be recalled, was not to increase substantially the overall abortion rate but, rather, to allow women far greater access to legal and safe reproductive healthcare within their own states (and to virtually eliminate dangerous, illegal abortions). 

Justice O'Connor truly has been the justice in the middle on reproductive choice. She crafted the 1992 Planned Parenthood vs. Casey compromise, a 5-4 decision that averted an express overruling of Roe, but also opened the door to a possible indirect overruling by substituting for the strong protections of Roe a new, less protective "undue burden" standard. She was joined by Justices Souter and Kennedy, also appointed by Republican anti-choice presidents. If any of the three had joined the dissent, the court would have overruled Roe in 1992 -- hence the determination that Bush take far greater care in his selection of O'Connor's successor. 

Casey upheld what it described as Roe's "essential" holding, the right of women to be free from "undue" governmental burdens in making the ultimate decision whether to have an abortion before fetal viability. The four Casey dissenters who would have expressly overruled Roe derided the undue-burden test as an implicit gutting of Roe, a standard that would not last and that left only a facade of protection. In fact, O'Connor has ensured that the Casey standard does provide some meaningful protection, but only by a 5-4 margin in the most recent abortion decision. 

The undue-burden standard has proved extremely malleable -- what is an "undue" burden? -- and in the hands of O'Connor's replacement could be used to empty Roe of any meaningful content for many women. Numerous forms of restrictions already have been attempted over the decades -- husband consent, mandatory delays and multiple trips, hospitalization requirements -- while others remain beyond our imagination, yet to be crafted. Most immediately on the horizon is whether the government may restrict abortion without providing exceptions for cases in which women's health is at risk. The upcoming confirmation hearings thus should explore not only whether Roberts will vote to overrule Roe expressly but also whether he will do so implicitly, over time, and deprive growing numbers of women of Roe's protections. 

Each senator ultimately will decide what standard a nominee must meet to merit a lifetime Supreme Court appointment. Standards certainly will vary, but at this time in our history, one worthy of adoption would recognize Roe vs. Wade and the right to privacy, like Brown vs. Board of Education, as a fundamental pillar of our constitutional system. 

When Justices O'Connor, Kennedy and Souter confronted the real possibility of overruling Roe, they instead were persuaded that the time had come to accept and reaffirm it. As they wrote in Casey, "an entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions." The time now has come for senators to say no to efforts to remake the court to take away the right to make "the most intimate and personal choices a person may make in a lifetime." 

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About the writer
Dawn Johnsen is a professor of law at Indiana University School of Law at Bloomington. 

	-----Original Message----- 
	From: conlawprof-bounces at lists.ucla.edu on behalf of Sanford Levinson 
	Sent: Fri 7/22/2005 11:19 PM 
	To: Mark Graber; conlawprof at lists.ucla.edu 
	Subject: RE: possiblel change of mind
	My deepest thanks to everyone who participated in the dicussion of the ramifications of overruling Roe.  I confess that although I remain convinced that it would be best for the Democratic Party if Roe were overruled, I now have considerably more doubt as to whether I really support it, given the ramifications that we discussed.  As noted in one of my postings, I do not really fear a congressional ban on abortion per se, since I literally cannot imagine that the votes are there, especially if we are talking about breaking a filibuster (though I also don't think there are even 51 votes for a national ban.  I can't imagine, for example, Sen. Key Bailey Hutchinsoon of Texas voting for such a bill, let alone Arlen Spector and other Northeastern Republicans besides Santorum.)  But I find myself genuinely worried now that states would try to exercise extraterritorial jurisdiction, in effect, and that distrubs me a great deal.  It is one thing to accept the shutting down of the one abortion center in Mississiippi as the price of my "crass" position.  It is another thing to accept the possibility that Mississiippi would try to make it impossible for women to go out of state.  I'm curious whether Rick, for example, believes that pro-life organizations would support such legislation or whether they would be willing to stop at the border, so to speak, and leave women free to cross it (and then return after undergoing abortions).  
	In any event, I've learned an immense amount today, and I look forward to reading Seth Kreimer's articles on the subject.

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