Farewell to a Great Dissenter: Antonin Scalia, RIP

Supreme Court Justice Antonin Scalia has died after three decades on the Court. May he rest in peace. He will no doubt be the subject of extensive and detailed tributes in the coming days, and the object of more than a few good-riddances as well. Here I simply recall his work with gratitude.  As a jurist, he was a steady opponent of Roe v. Wade – not because of his Catholic faith, but because he found Roe had no Constitutional basis.

No, he did not in his writing assert a fundamental right to life for preborn children. What he asserted, repeatedly, was that Roe was wrongly decided and could not be defended by resorting to the plain language of the Constitution.

He was often at odds with his colleagues over this. As Justice John Marshall Harlan was known as the Great Dissenter of his age (he served from 1877 to 1911), so Scalia deserves to be known today.

His opinions were refreshing for their crisp language as well as their content, particularly when read after the opaque prose produced by some of his fellow Justices. I offer excerpts of his work here, without analysis, in small tribute to his service.

Hodgdon v. Minnesota (1990): a parental notification case 

“I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass, ante, at (O’Connor, J., concurring in part and concurring in judgment); four Justices would hold that two-parent notification is constitutional with or without bypass, post, at (Kennedy, J., concurring in judgment in part and dissenting in part); four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards, ante, at (opinion of Stevens, J.), ante, at (Marshall, J., concurring in part and dissenting in part); six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons, Ohio v. Akron Center for Reproductive Health, ante, p.; ante, at (Stevens, J., concurring in judgment); and three Justices would hold that one-parent notification with bypass is unconstitutional, ante, at (Blackmun, J., dissenting). One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions; and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s and hence not in the judge’s workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

Webster v. Reproductive Health Services (1989): upholding state restrictions on abortion funding

“…the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb…”

The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business, since the answers to most of the cruel questions posed are political, and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive…It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.

Planned Parenthood v. Casey (1992): upholding some state regulation on abortion and overturning others

“Roe‘s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.”

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not….because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.…The emptiness of the “reasoned judgment” that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice….Pre-Roe, moreover, political compromise was possible. Roe‘s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.

Stenberg v. Carhart (2000): striking down a partial-birth abortion ban 

 “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd….While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution”…[I]f only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

.

 

 

 

Freedom of (some) information: SCOTUS rejects hearing on NHRTL case

DSCF9895The Supreme Court of the United States giveth, and the Supreme Court taketh away, and sometimes the Supreme Court says “go away.” An important New Hampshire case got the go-away treatment on November 16, as the Court declined to hear New Hampshire Right to Life v. Department of Health and Human Services. 

As my constitutional law professor stressed to me years ago, “A decision not to make a decision is still a decision.” This one went the wrong way.

NHRTL president Jane Cormier said, ““We would have been thrilled if the U.S. Supreme Court had taken on our case. NHRTL has been very concerned with the lack of transparency within the Obama administration. Despite the fact the NH Executive Council voted down the funding of PPPNE in 2011, US Health and Human Services chose to fund Planned Parenthood without going through proper state approval or even follow federal regulations requiring competitive bidding.”

Jane Cormier, NHRTL President (E. Kolb photo)
Jane Cormier, NHRTL President (E. Kolb photo)

This was effectively a victory for Planned Parenthood of Northern New England, which since 2011 has fought efforts by New Hampshire residents to find out how a federal grant to PPNNE seemed to appear out of nowhere after the New Hampshire Executive Council in June 2011 denied a PP contract proposal. NHRTL sought documents under the federal Freedom of Information Act (FOIA) to find out how the federal grant was made. PP produced some of the requested documents, with parts redacted. It refused to produce others – in particular, its Manual of Medical Standards and Guidelines. FOIA grants exemptions for “trade secrets” and material that could harm a party in a future competitive bidding process, and PP successfully claimed that the Manual falls under that exemption.


By the way, NHRTL’s FOIA request for the Manual was not out of line. PP had to produce its Manual to the government in order to get the federal grant – a point made by two Justices who dissented from yesterday’s announcement.

It would have taken four out the nine Supreme Court justices to accept the case. Normally, denials are made without comment. In this case, though, Justice Clarence Thomas took the trouble to publish his reasons for wanting to grant a hearing, and he was joined by Justice Antonin Scalia. They are troubled by conflicting lower-court rulings in FOIA cases about documents that are exempt from release. “The First Circuit’s decision warrants review. It perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test. For these reasons, I respectfully dissent from the denial of certiorari.” (See the PDF of Justice Thomas’s remarks at page ten of this link at supremecourt.gov.)

Neither Thomas nor Scalia took the side of one party over the other. They simply pointed out that lower courts in FOIA cases around the country have made conflicting rulings about what can be exempted from FOIA requests. That’s the sort of situation that normally makes a case ripe for Supreme Court review. I wonder if the Court would have taken the NHRTL case if the names of the parties had been different.

Alliance Defending Freedom, which with local attorney Michael Tierney represented NHRTL in court, released a statement after this week’s Court action. “HHS says it can’t release the documents because doing so might affect Planned Parenthood’s ‘competitive position’ if it faces a commercial grant competitor in the future. HHS also refused to produce information about its own debates over how to sell the controversial decision to the public.”

A related but separate petition arising from the 2011 Executive Council decision is pending before the New Hampshire Supreme Court, New Hampshire Right to Life and Jackie Pelletier v. New Hampshire Director of Charitable Trusts Office (docket #2015-0366).

“New Hampshire’s Executive Council recently voted to again eliminate state funding for Planned Parenthood,” noted Cormier. “We will need to be vigilant to ensure this type of back-door unaccountable funding does not occur again.”

Meanwhile, as it did in 2011, PP blames the Executive Council for attacking women’s health care by denying PP a contract a few months ago. It’ll be interesting to see PP’s 2015 financial statements, which should reveal how much or how little PP is shifting its priorities away from public policy ($1.5 million in 2014, plus a lobbyist’s salary) and towards clinical care.