A People's History of the Supreme Court

by Peter Irons

  When the Court issued its decisions in the Glucksberg and Vacco cases, on June 26, 1997, few people learned more from media reports than its unanimous rulings against the challenges to both the Washington and New York assisted-suicide laws. Despite the fact that all nine justices agreed on their outcome, however, this contentious issue had created such divisions within the Court that the Glucksberg case, to which Vacco became an appendix, produced six separate opinions. Writing for the Court in Glucksberg, Chief Justice Rehnquist referred to his Cruzan opinion in stating that “the Due Process Clause protects the traditional right to refuse unwanted medical treatment.” But he found no liberty interest that extended to physician-assisted suicide. Rather, he cited “a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults.” To recognize such a right, he wrote, “we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every state.” Rehnquist did not, however, rule out any later judicial consideration of this issue, and concluded his opinion with this paean to the democratic process: “Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue as it should in a democratic society.”

  Rehnquist’s opinion cited the 1991 decision of a majority of Washington’s voters to reject a ballot initiative to allow physician-assisted suicide, later ratified by the state legislature. Among the five justices who wrote concurring opinions in Glucksberg, however, there was agreement that the Court should revisit the issue if a subsequent case involved a decision by another state’s voters or lawmakers to allow physician-assisted suicide. As Justice David Souter wrote in his concurrence, the Court should “stay its hand to allow reasonable legislative consideration” of this divisive issue by other states, echoing the earlier statement of Justice Louis Brandeis, in a case from Oregon, that the Court should allow states to function as “laboratories of democracy.”

  As both Rehnquist and the concurring justices had predicted in Glucksberg, the assisted suicide issue has returned to the Court, in cases from Oregon. In 1994, that state’s voters enacted the Death With Dignity Act through a ballot initiative that passed by the narrow margin of 51 percent to 49 percent. This law allowed physician-assisted suicide under stringent restrictions, limiting it to terminally ill patients who signed at least three consent forms before doctors were allowed to administer lethal drugs. After a federal judge enjoined the law’s implementation, the Oregon legislature put the measure back on the ballot in 1997, and the voters again passed it, this time by a 60 percent to 40 percent majority. Shortly before this electoral victory, the Supreme Court denied a hearing to the law’s opponents, and it took effect in 1998. During the subsequent two years forty-six Oregon residents ended their lives with the aid of physicians.

  With the presidential election of George W. Bush in 2000, his administration mounted an effort to block Oregon’s doctors from prescribing lethal medications that were “controlled substances” under federal law. Attorney General John Ashcroft sued the state, seeking to revoke the federal drug prescription licenses of physicians who used these drugs to assist their patients’ suicides. Federal judges in Oregon and the Ninth Circuit Court of Appeals rejected Ashcroft’s move, relying on the states’ rights claim that conservatives like Ashcroft professed to support but had disregarded in this case to placate the Bush administration’s Religious Right backers, who campaigned fervently against assisted suicide as the first step toward euthanasia. Ashcroft resigned his post in 2005, but his successor as attorney general, Alberto Gonzales, persuaded the Supreme Court to review the Ninth Circuit decision upholding the Oregon law.

  Ruling on January 17, 2006, the Court dealt a rebuke to the Bush administration in Gonzales v. Oregon. Justice Anthony Kennedy wrote for a six-to-three majority that Congress, in passing the Controlled Substance Act, had not intended “to cede medical judgments to an Executive official who lacks medical expertise.” The government’s claim that Oregon’s voters could not decide the assisted-suicide issue for themselves, Kennedy added, would “effect a radical shift in authority from the States to the Federal government to define general standards of medical practice in every locality.” Chief Justice Roberts, in his first dissent on the Court, joined the opinion of Justice Scalia, who argued that the majority’s conclusion that physician-assisted suicide could serve a “legitimate medical purpose” rested solely on a “naked value judgment.” Oddly, the Court’s strongest defenders of states’ rights wound up supporting federal power in this case.

  Abortion cases, in fact, continued to reach the Court’s docket, even after the 1992 ruling in Planned Parenthood v. Casey, in which three “moderate” justices—O’Connor, Kennedy, and Souter—joined an opinion that reaffirmed the central holding of Roe that abortion was a “fundamental right” under the Constitution. But the same three justices had upheld all but one provision of the Pennsylvania law in Casey that restricted access to abortions, encouraging antiabortion groups to press state legislators and Congress to enact further restrictive laws. These groups knew that only the addition to the Court of at least two justices willing to overturn Roe would secure their ultimate goal. Awaiting this shift in the Court’s balance on abortion cases, antiabortion activists launched successful campaigns to outlaw an abortion procedure they painted as “akin to infanticide.” More than 90 percent of abortions are performed during the first three months of pregnancy, and all but a handful of the rest during the second trimester, the period before fetal viability. The Court had left no doubt, from Roe through Casey, that states could not ban “pre-viability” abortions, regardless of the method used. But a very small number of abortions—estimates ranged from 640 to 5,000 each year—were performed with a procedure doctors called “dilation and extraction,” or “D & X.” Such late-term abortions usually resulted from serious health complications of the pregnant woman or the fetus, or because a fetus was badly deformed and unlikely to survive.

  What encouraged antiabortion groups to press for banning D & X abortions was that the procedure was almost sure to provoke shock at the methods doctors used to remove the entire fetus from the uterus. It involved extracting part of the fetus through the vaginal canal and outside it, feet first in most cases, and then piercing the skull with scissors and suctioning out the brain and the surrounding fluid, allowing the head to slip through the canal. In some cases doctors would cut off arms or legs to give them access to the head. Even this brief, clinical description of the D & X procedure sounds gruesome, and antiabortion groups used graphic pictures of what they labeled “partial-birth” abortions in campaigns to outlaw this practice. By 1997, thirty-four states—including Nebraska—had passed laws that imposed criminal penalties on doctors who performed such abortions.

  The Nebraska law was promptly challenged by Dr. Leroy Carhart, the only physician in his state who performed late-term abortions. Carhart, who completed medical school during his twenty-one years in the Air Force, ended his military career in Nebraska and opened a practice in an Omaha suburb. He later recalled treating women, during his medical residency in the pre-Roe years, who suffered from infections after self-induced abortions, some of whom had died. “It was horrible,” he said, “worse than watching people die in a war.” Described by his wife as “stubborn, very stubborn,” Carhart paid a heavy price for challenging the Nebraska “partial-birth” abortion law. He and his family lived on a ranch with twenty-one horses, and arsonists set fire to their barn and house, killing seventeen horses and destroying their home. Carhart later received a letter calling the arson revenge for the “murders” he had caused by performing abortions. But that only fired his resolve. “I just thought, if I let this get to me, they’re going to know what it takes to get me, and I’m not going to let that happen,�
� he vowed.

  Dr. Carhart’s challenge to the Nebraska law centered on two issues. First, it defined “partial-birth” abortion as “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing the procedure knows will kill the unborn child and does kill the unborn child.” Carhart argued that this wording would also ban a procedure known as “dilation and evacuation,” or “D & E,” in which a fetus’s brain was pierced and drained before any body part was outside the vaginal canal. This procedure was used in more normal, head-first deliveries, in contrast to the feet-first, or “breech” deliveries that required the D & X procedure. The D & E procedure was also used in many second-trimester abortions, which Supreme Court decisions had protected from legislative restriction. During the court hearings in this case the state’s lawyers insisted the legislature had not intended to ban the D & E procedure, even though both involved piercing and draining the skull. It was pulling out arms and legs from the vaginal canal, they claimed, and sometimes cutting them off, that constituted “partial-birth” under the law, and apparently had shocked the state’s legislators. Second, and more important in legal terms, the Nebraska law only permitted such abortions “when necessary to save the life of the mother.” Carhart’s lawyers noted that Supreme Court abortion decisions from Roe through Casey had required a broader health exception that could include nonlife-threatening conditions, both mental and physical. Antiabortion groups argued that doctors could drive an ambulance through this “loophole,” but the Court had not backed down on this issue.

  Federal judges in Nebraska and the Eighth Circuit Appellate Court in St. Louis ruled for Dr. Carhart, and the state’s appeal reached the Supreme Court in 1999. The lead defendant was Don Stenberg, Nebraska’s attorney general, and he appeared before the Court to defend the partial-birth abortion law in Stenberg v. Carhart on April 25, 2000. Stenberg began his argument by telling the justices “the issue here today is whether a state may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions.” Justice Antonin Scalia helped Stenberg with a supportive question: “I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of abortion?” Stenberg quickly agreed with Scalia, but his colleagues focused their questions on the Nebraska law’s failure to provide a health exception. Stenberg replied that his state’s lawmakers had found that the D & X procedure was “never” necessary to protect a woman’s health, raising some judicial eyebrows.

  Simon Heller, a lawyer for the Center for Reproductive Rights in New York, argued for Dr. Carhart, countering Stenberg that the case record, based on voluminous testimony and exhibits at the district court hearing, showed that doctors used the D & X procedure most often with patients whose health would be endangered by continuing their pregnancy to full-term delivery. Preventing doctors—who faced twenty-year prison terms in Nebraska—from using this procedure, Heller argued, would substitute public opinion for medical judgment. In addition, Heller said, the law’s definition of “partial-birth” abortion would cause doctors to fear prosecution even when they used the judicially protected D & E procedure in second-trimester abortions.

  One measure of the continuing divisions over abortion—among both Supreme Court justices and the American public—is that Stenberg v. Carhart produced eight separate opinions on both sides of the Court’s five-to-four decision, handed down on June 28, 2000. Only Justice David Souter, who joined the majority opinion of Justice Stephen Breyer, stayed out of this judicial crossfire. Breyer began—as had Justice Harry Blackmun in his Roe opinion—by acknowledging the “controversial nature” of the abortion issue and the “virtually irreconcilable points of view” on both sides. The remainder of his opinion sounded more like a medical school lecture than a legal analysis. Drawing upon numerous medical texts and trial testimony, Breyer described both the D & X and D & E procedures in detail, conceding that “our discussion may seem clinically cold and callous to some, perhaps horrifying to others.” But he saw no other way “to acquaint the reader with the technical distinctions among different abortion methods . . . upon which the outcome of this case depends.” Breyer concluded that Nebraska’s law confronted doctors who performed D & E abortions with an unacceptable risk of prosecution for performing a legally protected procedure. In addition, Breyer held, the lack of a health exception doomed the law. “Requiring such an exception in this case is no departure from Casey,” he concluded, “but simply a straightforward application of its holding.”

  The most surprising aspect of the Stenberg decision was that Justice Anthony Kennedy, who had joined the Casey opinion that upheld the “central holding” of Roe, wrote a dissent that reflected his revulsion at the “abhorrent” nature of the D & X procedure. The majority’s decision, he wrote, “nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn.” In his characteristically acerbic dissent, Justice Scalia wrote that the D & X procedure “is so horrible that the most clinical description of it evokes a shudder of revulsion.” Any notion that the Constitution, Scalia added, “prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”

  Although polls show that a clear majority of the public supports abortion rights in principle, and opposes the reversal of Roe, an even greater majority supports bans on “partial-birth” abortions, including a majority in Congress. Even before the Stenberg decision in 2000, Congress twice passed bills to impose a nationwide prohibition of this procedure, but failed in both efforts to override vetoes by President Bill Clinton. However, in 2003, President George W. Bush signed the Partial Birth Abortion Ban Act, which prompted immediate legal challenges by Dr. Carhart in Nebraska and physicians in New York and California. The new federal statute, like the state laws the Court had struck down in Stenberg, did not include a health exception, reflecting the congressional finding that partial-birth abortions were “never” justified on health grounds.

  Federal judges in all three states quickly enjoined the Bush administration from enforcing the law. Dr. Carhart’s suit became the first to reach an appellate court, and the Eighth Circuit Court of Appeals, citing both Casey and Stenberg, ruled in July 2005 that “we are bound by the Supreme Court’s conclusion that ‘substantial medical authority’ supports the medical necessity of a health exception.” Two months later, in September 2005, the Bush administration asked the Supreme Court to review the Eighth Circuit decision.

  In January 2006, Justice Samuel Alito took the seat of Sandra Day O’Connor on the Court’s bench. Three weeks later, on February 21, the Court announced that it would hear the government’s challenge to the Partial Birth Abortion Ban Act in the case of Gonzales v. Carhart. Justice O’Connor had joined the five-to-four majority that had struck down the Nebraska partial-birth abortion law in the first Carhart case; her replacement by Alito raised the prospect of its reversal, and perhaps the overturning of Roe as well. At the least, the Court’s ruling on the federal partial-birth abortion law—still awaiting argument and decision at this writing—will return abortion to the political front burner, regardless of which side prevails in the latest “clash of absolutes” over the nation’s most divisive legal issue.

  38

  “A Blank Check for the President”

  George W. Bush, the Republican governor of Texas, won the presidential election in 2000 by one vote over his Democratic rival, Vice President Al Gore. Bush, in fact, had lost the national popular vote
by more than a half million votes out of 105 million cast by the 51 percent of eligible voters who showed up at the polls. Only four times before in the nation’s history—the others all in the nineteenth century—had a candidate won the presidency while losing the popular vote. Bush owed his victory in large part to the Constitution’s framers, who had rejected proposals to choose presidents by popular majorities. One of many compromises at the Constitutional Convention in 1787—demanded by the smaller states—had created the Electoral College, in which each state cast votes for president based on the total number of senators and representatives in Congress.

  The presidential election was decided when the Court issued its ruling in the case of Bush v. Gore on December 12, 2000, ending a six-week legal battle over the twenty-five electoral votes of Florida, swinging the election to Bush. The justices agreed to hear the case after Florida’s Republican secretary of state, Katherine Harris, who had campaigned for Bush, certified him as the winner over Gore, by a margin of 527 votes of the more than four million cast in the state. State law allowed recounts in elections decided by less than 1 percent of the total voters, and Gore’s lawyers sought recounts in several counties. Before the recounts were concluded, however, Harris—citing federal law that set deadlines for certifying presidential election results to Congress—certified Bush as the winner. Gore’s lawyers promptly challenged her certification in state courts, setting off a frenzy of hearings and judicial rulings. What brought these rulings to the Supreme Court was a decision by Florida’s high court, based on its reading of state election laws, to extend the deadline and order further recounts before Congress met to count the electoral votes.