The Supreme Court: Our Country's Highest Judicial Authority
The Supreme Court is comprised of nine justices who are appointed to the bench for life, or until voluntary retirement. They are appointed by the President and must be confirmed by the U.S. Senate.
A Case's Path to the Supreme Court
While the Supreme Court may choose to hear cases directly, it most often selects cases that have been decided in lower courts. Participants in cases decided in lower courts can appeal to their state's highest or Supreme Court. If all state venues are exhausted, litigants may appeal to the United States Supreme Court, the highest court in this country. Some cases may begin in federal courts at the start, and these can also end up here.
The nine justices choose which cases to take from those submitted to the Supreme Court. They can refuse to consider a case, accept a case for oral argument, or decide the case summarily without a hearing. Each of these routes has an effect on the law: the decision not to hear a case allows a lower court's ruling to stand as precedent, or guiding law for other states. The court often decides that a case should be heard in circumstances in which two or more lower courts have decided differently.
This "split" in the opinions of lower courts is common in highly charged issues such as abortion rights. In this circumstance, the court acts as final arbiter on a difficult issue.
The Final Decision: The Majority Rules
The Supreme Court cases that are heard for oral argument are decided by a majority of the justices accepting one theory or opinion of the elements of the case. Basically, the side with most votes wins; that's why most cases have numbers like 7-2 or 5-4 that let us know how many judges voted for or against a particular case. When there is no clear majority, the resulting decision is called a plurality opinion. It is the interpretation that receives more votes than any other opinion.
One justice usually writes the opinion for the majority, while others may write dissenting opinions collectively or on their own. Justices who sign on to either the majority or minority opinion may also add their own opinions, singularly and collectively, that augment the group opinion.
The Nine Justices: Roe's Support Hangs in the Balance
Today's Court is made up of justices nominated to the bench by Presidents Richard Nixon, Gerald Ford, Ronald Reagan, George Bush and Bill Clinton. The youngest justice is 54, the oldest, 82. The current Court is closely divided between "conservative" and "liberal" elements, not only on the right to choose abortion, but also on other issues, such as freedom of religion, disability protection and gay rights.
Voices Against Roe: Scalia and Thomas
Justice Antonin Scalia and Justice Clarence Thomas tend to vote together on abortion cases. Justice Scalia believes that Roe v. Wade was wrongly decided and should be overturned. While Justice Thomas claimed during his confirmation hearings never to have considered the Roe decision, he has consistently sided against its provisions since joining the court. Neither of the new appointees, Chief Justice John G. Roberts nor Justice Samuel Alito, have yet sat on any cases in which the Court has considered whether the Constitution protects a woman’s right to choose as a fundamental right. However, both have expressed views as jurists and government lawyers that are gravely concerning to the pro-choice community.
Sitting on the Fence: O'Connor, Souter and Kennedy
Three justices on the current court have voted to support the same right to abortion as articulated in Roe, but have argued against its most important provisions. Former Justice Sandra Day O'Connor, with current Justices Anthony Kennedy and David Souter co-authored the 1992 plurality opinion in Planned Parenthood v. Casey that created the "undue burden" standard for abortion restrictions. Previously, restrictions on the right to choose, as with any other constitutional right, were subject to "strict scrutiny" - and could not be infringed upon by a state. The state had to have a compelling interest to restrict a woman's right to abortion, or one of the utmost importance. But in 1992, the Court replaced that standard with the "undue burden" test, eliminating Roe’s trimester framework by explicitly extending the state’s interest in protecting potential life and maternal health to apply throughout pregnancy. In other words, regulations that affect a woman’s decision to have an abortion that further the state’s interests are constitutional unless they have the "purpose or effect" of "imposing a substantial obstacle" in the woman’s path. This decision opened the door to states passing a number of restrictions which limit women’s access to abortion, such as waiting periods and parental consent requirements that serve no medical purposes and are only intended to dissuade women from exercising their right. Justice Souter, appointed by President George H.W. Bush in 1990, has steadily supported this curtailed right to abortion. Justice Kennedy, however, has demonstrated that his support for the Roe decision is minimal at best, through his dissent in Stenberg v. Carhart, decided in June 2000.
Roe's Remaining Supporters: Stevens, Ginsburg and Breyer
Finally, three justices on the current Court have continued to fully support Roe's provisions. Justice John Paul Stevens, the most senior associate justice, has been a staunch supporter of Roe since his appointment to the Court in 1975. Justices Ruth Bader Ginsburg and Stephen Breyer, appointed by President Clinton, have thus far proved reliable supporters of a woman's right to choose. Justice Ginsburg fought for women's rights and civil rights prior to taking the bench, serving for many years as an attorney for the American Civil Liberties Union. As the author of the Stenberg v. Carhart decision which exposed the so-called "partial-birth abortion" laws as deceptive attacks on the foundations of the right to choose, Justice Breyer firmly stated his conviction that Roe is settled law.
The New Supreme Court
In 2005, President George W. Bush appointed two new justices to the Supreme Court, John G. Roberts, who replaced William Rehnquist as Chief Justice, and Samuel Alito, who replaced Sandra Day O’Connor. Both appointments are of grave concern when it comes to the Court’s continued recognition of a woman’s right to choose. While Roberts’ judicial history pertaining to abortion is slim, his record is not encouraging. Particularly troubling—is a brief he co-authored in the case Rust v. Sullivan in 1991 in his role as the political deputy in the Solicitor General’s office. Even though Roe was not at issue in the case, he wrote, "We continue to believe that Roe was wrongly decided and should be overruled. . ."
Alito’s record on abortion rights is considerably longer, and even more alarming. In a 1985 job application, Judge Alito expressed his strong belief that ‘the Constitution does not protect the right to an abortion’ and in a 1985 memorandum, he recommended that the Reagan Administration adopt a strategy that would ‘advance the goals of bringing about the eventual overruling of Roe v. Wade, and in the meantime, of mitigating[ ] its effects.’ In his dissent in the 1991 case, Planned Parenthood v. Casey, Judge Alito argued for a legal standard that would have permitted almost any abortion regulation to stand. In Alexander v. Whitman (1997) and Planned Parenthood v. Farmer (2000), Judge Alito chose to write separate concurrences, apparently to distance himself from the majority’s opinion applying Supreme Court precedents in Roe v. Wade and Stenberg v. Carhart.
Rights Beyond Roe: The Far-reaching Influence of the Anti-Choice Movement
The composition of the new Supreme Court is important for other areas of privacy law that also protect our access to contraception and the confidentiality of our medical histories. For example, the Center's 2001 case Ferguson v. City of Charleston challenged a scheme initiated by a Charleston, South Carolina local hospital and law enforcement to have medical personnel secretly search a targeted group of pregnant women for evidence of cocaine use without a warrant or their consent. The Center successfully argued that the searches violated Fourth Amendment protections against unlawful search and seizure. Rulings denying Medicaid coverage for abortions and prescription contraceptive coverage have both been challenged based on the equal protection clause of the Fourteenth Amendment. Also, laws protecting our access to clinics and services by ensuring the safety of the men and women who staff health care facilities could be overturned by the Court altering its interpretation of the First Amendment.
The Irony of Roe: Abortion Can Still Be Illegal
Technically, Roe v. Wade did not make abortion legal - instead, the decision set a legal precedent or standard that made most state laws restricting abortion illegal. The seven justices in the majority agreed that various elements of the Constitution and the Bill of Rights constitute a right to privacy, already identified and articulated in previous decisions about medical care beginning in the previous century. The Court found that the right to choose abortion was protected by this constitutional right to privacy. States could, therefore, only restrict abortion when they had a compelling interest to do so, for example to protect women's heath. The Court did allow states to restrict abortion in the third trimester of pregnancy as long as any statute allowed for exceptions if a woman's health were in danger.
The effect of Roe was to render most existing restrictions on abortion unenforceable. Most of these laws were not removed from state codes, however, and overturning the Roe decision would allow many of these to be enforced, leaving U.S. women with vastly different privacy rights depending on their state of residence
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