Sisters in Law (25 page)

WWTFWOTSCD (
WHAT WOULD THE FIRST WOMAN ON THE SUPREME COURT DO
?)

Pennsylvania had imposed a lot of restrictions, such as strict parental notification and prescribing an elaborate presentation to the pregnant woman about the perils of abortion. But the real impact of the case was that two of the three judges on the Court of Appeals for the Third Circuit, which covers Pennsylvania, jumped the gun and ruled outright that
Roe
no longer commanded a majority of the Court. Instead, they would take their orders from the crucial swing vote, Sandra Day O'Connor. Having explicitly refused to follow
Roe v. Wade
, the circuit court then sustained almost the entire Pennsylvania scheme as an application of O'Connor's undue-burden standard. (Judge Samuel Alito of the Third Circuit even voted to uphold a requirement that pregnant women seeking abortion must notify their spouses, but he could not persuade either of the other two judges to join him on that point.) Still, the pro-choice activists were so scared of the Court that they actually debated not
appealing from the Third Circuit. Pennsylvanians would just live with the draconian terms of the state's anti-abortion law.

But it was 1992. The lawyer in charge of the case, the ACLU's Kathryn Kolbert arguing for Planned Parenthood, made a political decision to provoke the Supreme Court into just overruling
Roe
. She would argue that there was no way to reconcile the Pennsylvania law with
Roe
and so the Court either had to strike down the law or overrule
Roe
at last. She wasn't happy to lose the foundation of women's abortion rights, but she was hoping women's furious reaction to the repeal of
Roe v. Wade
in the upcoming election would push George H. W. Bush right out of the White House. The next appointments would be made by a Democrat. In her mind anything would be better than having the lower courts start issuing a bunch of rogue opinions like the Pennsylvania court had just done. The ACLU petitioned for Supreme Court review, suggesting that the issue was whether the Supreme Court had overruled
Roe v. Wade
. For its part, Pennsylvania stepped right up and appealed the one issue it lost, asking the Court to approve of making women tell their husbands about their planned abortions. So no one was arguing for any more evasion.

For her political strategy to work, Kolbert had to get the case on the docket immediately, however. Any delay would put the issuance of the decision beyond the 1992 election, and it would be four long years before the next chance to test abortion rights at the ballot box. She filed her petition for review in record time three weeks later, on November 7, 1991. But she was no match for the chief justice, who controlled the calendar. For some gut-wrenching weeks, Rehnquist simply kept delaying consideration of
Casey
, a move called “relisting,” of whether to review the abortion case. Finally, some combination of Justices Stevens and Blackmun got Rehnquist's attention by threatening to file an unprecedented public dissent from the decision to relist, and Rehnquist abandoned the tactic.

The Court voted to take the case, with plenty of time for a decision before the election. When the time came, only O'Connor and Rehnquist voted not to take it. Had they prevailed, the denial
of review would, of course, have thwarted the abortion activists' plan to make abortion an issue in the election. Then Justice Souter, who had voted tentatively to take it, asked for more time! Alarms spread in the liberal chambers of justices such as Blackmun. After a scouting mission to Souter's chambers, Blackmun's clerk Stephanie Dangel assured him that Souter would not delay the case until after the presidential contest. “Unlike the Chief and SOC [Sandra O'Connor], Souter was not concerned about the election,” Souter's clerk told Dangel.

As Blackmun's clerk reported, O'Connor
was
concerned about the election. Not until Senator Barry Goldwater's papers became available to the public many years after the clerks exchanged views on O'Connor's politics did her ongoing concern with the senior Bush's electoral fate emerge fully. Four years earlier, she had expressed to her Arizona colleague how critical Bush's election was “for the court and the nation.” Now the abortion case threatened his retention in 1992. But other than voting against taking it, which she did, there was little she could do to stop it.

Kathryn Kolbert was particularly determined to use the appeal to dare the FWOTSC to overrule
Roe
. At oral argument, for seven long minutes, she extolled
Roe
and attacked Justice O'Connor's preservationist strategy from
Webster
. Kolbert was not grateful to O'Connor for barely preserving
Roe
. She thought
Roe
should be reaffirmed or rejected. Finally, beyond provocation, Justice O'Connor broke in, accusing Kolbert of not addressing the issues the Court had asked to review. Was the litigator ever going to address what the Court was interested in? Kolbert said she was, but indeed, she was not.

The leaks from the conference are laconic, but Justice Rehnquist apparently felt he had enough votes to affirm all of the Pennsylvania regulations, including the spousal notification, and so he again assigned the opinion to himself. It looked like
Roe
was done. Justice Souter was deeply troubled by the bald overruling of established precedent as a result of a simple change in the composition of the Court. But given the size of Rehnquist's majority, Justice Souter must have seemed unimportant at that moment.
Bad mistake. Suspecting, from her votes in
Webster
and the parental notification case, that Justice O'Connor was not on board with Rehnquist, Souter decided to see what she thought could be done. There was only one place for the two of them to go: to Justice Anthony Kennedy.

There is no evidence that it was Justice O'Connor who engineered the survival of formal abortion rights. Kennedy, the critical third vote, was a devout Catholic, he had been tight with the conservative Catholic Antonin Scalia since his appointment, and he was not particularly close to O'Connor. Indeed, O'Connor was not palling around with anyone that term. People on the scene believe it was Souter who approached Kennedy. Scalia's ideological rigidity and his over-the-top rhetoric had come to feel unseemly to the ethereal Anthony Kennedy, and, when Justice Souter approached him, he quickly abandoned the conservative ship. It did not hurt that Souter and Kennedy had worked together earlier that term to produce a centrist opinion in an important environmental case, again leaving the hard-core four conservatives without a majority, in that case, to gut the Endangered Species Act. They had a pathway to cooperation, and a common sense of themselves as occupying the center. They decided to cowrite an opinion, not a common practice in 1992. One month later, Kennedy wrote to Blackmun. “I want to tell you about some developments in Planned Parenthood v. Casey, and I think part of what I say should come as welcome news.”

On the last day of the term, the three took their seats, to deliver, one after another, the single opinion they had crafted together. The constitutional right to an abortion would not be overturned.

Kennedy wrote a section of the joint opinion exalting the concept of liberty to include decisions involving the right to “define one's own concept of existence . . . and of the mystery of human life.” A pregnant woman's suffering “is too intimate and personal for the state to insist on childbirth,” he continued, teeing up the critical insight: out of “its own vision of the woman's role.” No wonder Judge—later Justice—Ginsburg exulted over this opinion, otherwise a decidedly mixed bag for women. Getting the state out
of the business of enforcing its vision of the woman's “concept of existence” was the work of her life. For his part, Souter is widely credited with the powerful argument against overturning a settled precedent that had governed people's sexual behavior and decisions for two decades in an act that would look like raw political power, not considered jurisprudence.

The third, workmanlike section of the opinion, dealing with the actual provisions of the Pennsylvania law, is attributed to O'Connor. In reviewing that effort and all future efforts to make abortion harder for women, O'Connor's concept of undue burden cemented the new order. In
Planned Parenthood v. Casey
and for the next twelve years, the Court has asked and answered her question: Did the state place an “undue burden” on a woman seeking to abort? Unlike Blackmun's injunction of no interference for three months, and nothing but the mother's health for the next three months, the undue-burden language provides no objective guidance for what might be allowed. For many years the Court was so closely divided that the question always wound up in the hands of the woman who was ultimately the crucial swing vote: What kinds of lives did she think women deserved? Of course, this phenomenon also meant the country would be asking the same question of whoever would succeed her when she retired.

All the litigation after
Casey
, then, started with her section of the opinion in
Casey
. O'Connor began answering that question by backing away from what she had allowed under her undue-burden test repeatedly and as recently as only three years before. I know, she admitted, I said the state has an interest in the fetus from conception that might outweigh the mother's interest, but I'm not saying that anymore: “we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability could be constitutional. The answer is no.” She then sustained every burdensome provision of the Pennsylvania law, all of which applied throughout pregnancy, except making women tell their husbands. Women were entitled to lives that did not automatically
end in death in childbirth if the abortion were denied, and women were entitled to lives that did not involve their asking their husbands about their proposed abortions. That's it.

In 1983, when O'Connor had first suggested the states' campaigns against abortion rights be measured by whether they placed an “undue burden” on the woman's choice, she was not yet famous for her jurisprudence of good common sense. Over the ensuing years, she imposed similar open-ended standards on every crucial civil rights matter—freedom of religion, affirmative action, employment discrimination. The vague and general language she used means that each decision resolved no more than the case at hand, making the Supreme Court the Common Sense court of last resort. When did a Christmas crèche amount to the establishment of religion? When it was “excessive.” When could a college prefer a black to a white applicant? Until such action was no longer “necessary.” What would constitute actionable proof of sex discrimination? When it is “sufficiently severe or pervasive.” Her decision in
Casey
follows suit.

Common sense—the practical wisdom of the common man—by definition requiring neither theory nor expertise, is an effective tool for allowing unexamined intuitions and prejudices into decision making. The abortion cases, then, create an insight into the much-debated issue of Justice O'Connor's lay intuition about women's lives. Of all the hurdles the states thought up to discourage women in the years from her first abortion decision in 1983 to
Casey
, in 1992—making doctors tell them abortion was dangerous or that there were people wanting to adopt their offspring, prohibiting public hospitals from involvement, making women endure waiting periods, getting parental consent or a judge's consent—O'Connor went along with them all. She dissented when the more liberal Court struck the state laws down in her early years, and she voted with the newly formed conservative majority when the Court eventually allowed the limitations on abortion. In all the cases before
Casey
, she had demanded only that a girl have an option to confide in a local judge instead of her parents. In
Casey
she gave her permission for the state to make
providers tell women how dangerous abortion procedures could be to their health, make them wait twenty-four hours to digest the information, make young girls tell their parents in most cases.

The only provision that felt burdensome to her and her two colleagues was spousal notification. It grossed O'Connor out to think of the government making a married woman tell her husband, whom she would not otherwise inform of her plans, that she was about to have an abortion. Critics concluded that O'Connor could relate, from her life as a married bourgeois woman, to how onerous such a burden would be. As to the rest—poor women having to take days off from work to travel to where abortions were available, often hundreds of miles from their homes, and then listen to a lecture unrelated to their needs or health care—no problem.

Critics speculate that when she talked about common sense, she was unable to see outside the communally formed common sense of her community—white, middle class, married. This is a pretty serious criticism and one that an intuition-driven method like O'Connor's naturally evokes. But O'Connor's commonsense intuitions may be nothing more sinister than her telling the women to suck it up, travel to where abortions were offered, and listen to whatever they made you hear. Weaklings were not O'Connor's strong suit. She was even surprised at the outpouring of love and support for her when she needed help during her treatments for breast cancer.

Whatever the jurisprudence, the troika of Souter, Kennedy, and O'Connor at least ensured that women were granted some modicum of protection for their core decisions. And the center held. In 1992 a Democrat won the White House for the first time in sixteen years.

Richard W. Strauss, Collection of the Supreme Court of the United States

The Supreme Court of the United States,
1993
.