Read the full report

Because of their profound impact on  Americans’ fundamental rights, reproductive rights cases are among those watched most closely when they reach the United States Supreme Court.  This term, the Court is scheduled to decide at least three such cases.

440px-Supreme_Court_US_2010McCullen v. Coakley deals with the constitutionality of a Massachusetts law establishing a 35-foot “buffer zone” around entrances to clinics that perform abortions, in order to protect women and families from harassment when accessing reproductive and family planning services.  Opponents argue that the law violates the First Amendment.  Oral argument in McCullen is set for January 15, 2014.

The Court also is expected to decide two cases—Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius—concerning whether profit-making companies owned by individuals with religious objections to birth control must be exempted from the contraception coverage requirement in the Affordable Care Act.

Today,AFJ releases a comprehensive report on the views of the current justices on reproductive rights issues, as expressed through their public statements before and during their confirmation hearings, their legal writing and their decisions.  The full report is available here. An executive summary and the voting records of the justices on the most significant reproductive rights cases are below.  

Chief Justice John Roberts, pp. 8 to 12

During his time as a lawyer in the Reagan Administration John Roberts condemned the right to privacy—on which the right to abortion is predicated—as nothing more than judicial activism.  Roberts also approved a statement by President Reagan comparing Roe v. Wade to the Dred Scott decision sanctioning slavery.  During his confirmation hearing, Roberts emphasized his respect for precedent.  He spoke of needing judges who “have the humility to recognize that they operate within a system of precedent.”

Justice Antonin Scalia, pp. 13 to 16

During his confirmation hearings Scalia would not express an opinion on Roe v. Wade.  He said he believed some precedents are stronger than others, but did not say whether he viewed Roe as a strong or a weak precedent.

During his time on the Supreme Court, Scalia partially dissented from Planned Parenthood v. Casey, writing that “Roe was plainly wrong,” and he answered the question of whether abortion is a liberty protected by the Constitution by writing, “I am sure it is not.”  He also wrote that “the Constitution contains no right to abortion.”

Scalia has rarely shied away from sharing his opinions about abortion in public speeches and to the media.  He has said:

  • “You think there ought to be a right to abortion?  No problem. . . . Pass a law.”
  • “Abortion?  Absolutely easy.  Nobody ever thought the Constitution prevented restrictions on abortion.”

Justice Anthony Kennedy, pp. 16 to 22

During his confirmation hearings, Kennedy said he believed there is a fundamental right to privacy.  On the Supreme Court, he coauthored the controlling opinion in Planned Parenthood v. Casey.  The opinion upheld a series of restrictions on abortion rights, but also said that “the woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade.  It is the rule of law and a component of liberty we cannot renounce.”  Kennedy also has written opinions that condemn certain abortion procedures in harsh terms, including referring to doctors as “abortionists,” and he authored a dissent in a case upholding a Colorado law requiring buffer zones around abortion clinics.

Justice Clarence Thomas, pp. 23 to 25

During his confirmation hearings, Thomas said he had given no thought to Roe v. Wade during or since his days in law school.  Thomas said he did believe there is a constitutional right to privacy, and that he had no agenda to prejudge the issue of abortion.

On the Court, Thomas has repeatedly criticized Roe.  He wrote that the majority decision in Roe was “grievously wrong,” that the Court’s “abortion jurisprudence is a particularly virulent strain of constitutional exegesis,” and that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.”

Justice Ruth Bader Ginsburg, pp. 25 to 32

In 1985, Ginsburg wrote in a law review article that the Roe decision was too broad and helped provoke a backlash.  She has also said, “The emphasis must not be on the right to abortion but on the right to privacy and reproductive control.”

On the Court, Ginsburg read from the bench a strong dissent in Gonzales v. Carhart, in which the majority upheld a law banning “partial birth” abortions, even when there is no exception for the health of the mother.  She wrote that when the government controls the decision to bear a child, a woman “is being treated as less than a fully adult human responsible for her own choices.”  Ginsburg has been part of the majority in cases upholding “buffer zones” around abortion clinics.

 Justice Stephen Breyer, pp. 32 to 36

During his confirmation hearings, Breyer said it was clear that Roe is the law of the land.  He also outlined in detail his view that there is a constitutional right of privacy.

On the Court, Breyer dissented from a decision last year allowing a Texas bill imposing significant new restrictions on abortion providers to take effect.  Allowing the law to take effect, Breyer wrote, “seriously disrupts” access to abortion in Texas.  Previously, Breyer wrote the majority opinion striking down a law banning “partial birth” abortion in Nebraska.  Breyer joined Ginsburg’s dissent in Gonzales v. Carhart and he joined the majority in upholding buffer zones.

Justice Samuel Alito, pp. 36 to 41

Alito’s writings on abortion during his time in the Reagan Administration led some newspapers to publish pieces titled, “Alito Helped Craft Reagan-Era Move to Restrict ‘Roe,’” and “Alito File Shows Strategy to Curb Abortion Ruling.”  In a job application he wrote: “I am particularly proud of my contributions to recent cases in which the government has argued in the Supreme Court that . . . the Constitution does not protect a right to an abortion.”  When asked about these statements during his confirmation hearings Alito said the role of an advocate is different from the role of a judge.

While a judge on the Third Circuit Court of Appeals, Alito said that that court’s decision in Planned Parenthood v. Casey, upholding all but one restriction on abortion, did not go far enough—all of the restrictions should have been upheld.

During his confirmation hearings, Alito expressed respect for precedent but refused to characterize Roe as “settled law.”  While on the Supreme Court, Alito voted with the majority in Gonzales v. Carhart.

Justice Sonia Sotomayor, pp. 41 to 47

During her confirmation hearings Sotomayor indicated that Roe is settled law and that there is a constitutional right to privacy.  While on the Supreme Court Sotomayor signed onto Breyer’s dissent in the Texas case discussed above.

Recently, Sotomayor issued two rulings in cases related to contraception and the Affordable Care Act.  She rejected a request by for-profit company Hobby Lobby to delay enforcement of a provision of the Affordable Care Act requiring companies to cover birth control in their insurance policies for their employees.  In a second case involving another portion of the law affecting contraception coverage for employees of religiously-affiliated organizations, she granted a request to delay application of that part of the law to a nursing home they run by a group of nuns, pending further review.

Justice Elena Kagan, pp. 47 to 51

During her confirmation hearing, Kagan said this about the right of the government to regulate abortion:  “As I understand the law after [Planned Parenthood v.] Casey, it’s that, after viability, the state can regulate as it pleases, except for situations where the woman’s life or health interests are at issue.  Before viability, the question is whether there is an undue burden on the woman’s ability to have an abortion.”

While on the Court, Kagan signed onto Justice Breyer’s dissent in the Texas case discussed above.

 

The Line-Up:  How the Justices Voted on Major Supreme Court Abortion Decisions

X:            Vote against advocates arguing for abortion rights.

√:          Vote in favor of advocates arguing for abortion rights.

Webster v. Repro. Health Servs.[1]Hodgson v. Minnesota[2]Rust v. Sullivan[3]Planned Parenthood v. Casey[4]Schenck v. Pro-Choice Network of West. NY[5]Stenberg v. Carhart[6]Ayotte v. Planned Parenthood[7]Gonzales v. Carhart[8]
C.J. Roberts      

X

J. Scalia

X

X

X

X

X

X

X

J. Kennedy

X

X

X

X

X

X

J. Thomas   

X

X

X

X

J. Ginsburg    

√/ X

J. Breyer    

J. Alito       

X

J. Sotomayor        
J. Kagan

 


The Cases:

[1] 492 U.S. 490 (1989).  Challenge to Missouri law that included a variety of restrictions on abortion: prohibiting public employees from providing or assisting in non-life threatening abortions; prohibiting the use of public facilities for abortion unless necessary to save the woman’s life; and requiring physicians to perform test to determine viability of fetuses after 20 weeks of pregnancy.  Court upheld the law.

[2] 497 U.S. 417 (1990).  Challenge to Minnesota law requiring minors to notify both biological parents before abortion, with exception for medical emergencies and parental abuse and judicial bypass option.  Court upheld the law.

[3] 500 U.S. 173 (1991).  Challenge to President Reagan’s “gag rule,” prohibiting family planning programs funded by Title X from discussing, counseling on, or making referrals for abortion; funds could only be used for prenatal care. Court upheld regulation.

[4] 505 U.S. 833 (1992).  Challenge to Pennsylvania Abortion Control Act, which included a variety of abortion restrictions: an “informed consent” provision requiring doctors to inform women of the health risks of abortion and of childbirth—as well as the probable gestational age of the fetus and the availability of printed materials published by the state—before attaining women’s written consent; a 24-hour waiting period between the initial “informed consent” appointment and an abortion; parental consent for young women under 18 with a judicial bypass procedure; a “spousal notification” provision requiring married women to attain written consent from their husbands prior to an abortion; and a variety of reporting requirements.  The Court upheld all restrictions except spousal notification and imposed a new “undue burden” standard, though the plurality “once again reaffirmed” the “essential holding of Roe v.Wade.”  Id. at 846.  Justice Kennedy receives a checkmark for co-authoring the decision to reaffirm Roe’s “essential holding.”

[5] 519 U.S. 357 (1997). Challenge to fixed and floating “buffer zones” to restrict abortion clinic blockaders.  Court upheld “fixed” buffer zones because of public safety interests, and struck down “floating” buffer zones (requiring protestors to stay 15 feet away from individuals accessing clinic) as imposing too great a burden on speech.  Justice Ginsburg voted to uphold the constitutionality of the fixed buffer zones, but voted to strike down the floating buffer zones.  Justices with red Xes voted against the constitutionality of both kinds of buffer zones; Justice Breyer voted to uphold both.

[6] 530 U.S. 914 (2000).  Challenge to Nebraska “partial-birth” abortion ban without exception to protect woman’s health.  Court struck down law.  Breyer authored the majority opinion; all four dissenting Justices authored dissenting opinions.

[7] 546 U.S. 320 (2006).  Challenge to New Hampshire parental notification law that included a judicial bypass option, but lacked a medical emergency exception to protect minor women’s health.  Court unanimously remanded back to lower court with recommendation to strike down the law either in whole or in part for lacking a health exception.

 [8] 550 U.S. 124 (2007).  Challenge to federal Partial-Birth Abortion Ban Act of 2003, which did not include an exception to protect the health of the woman.  The Court upheld the law.  Justice Kennedy authored the majority opinion; Justice Ginsburg authored a strong dissent, which she read aloud from the bench.

We have much more about reproductive rights issues at www.roeatrisk.org

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