Ten years ago, she tried to set the record straight

Sandra Cano
Sandra Cano (photo from priestsforlife.org)

What if your name were used in a Supreme Court case to secure a “right” you never sought? What if that case led to the deaths of millions of children?

Sandra Cano had to figure that out. She was “Doe” in the 1973 Doe v. Bolton decision, companion case to Roe v. Wade. Cano had sought legal help with divorce and custody issues, and she wound up having her name used in a case that brought a broad “health” exception to abortion regulation. It took until June 2005, ten years ago this week, for her to get a hearing in Washington. She had no way to address the Supreme Court, of course. Instead, members of the Senate Judiciary Committee asked her to set the record straight. Read her testimony, and ponder the implications of an abortion case that didn’t involve an abortion.

I was very vulnerable: poor and pregnant with my fourth child, but abortion never crossed my mind. Although it apparently was utmost in the mind of the attorney from whom I sought help. At one point during the legal proceedings, it was necessary for me to flee to Oklahoma to avoid the pressure being applied to have the abortion scheduled for me by this same attorney. Please understand even though I have lived what many would consider an unstable life and overcome many devastating circumstances, at no time did I ever have an abortion. l did not seek an abortion nor do I believe in abortion. Yet my name and life is now forever linked with the slaughter of 40-50 million babies.
…I feel like my name, life, and identity have been stolen and put on this case without my knowledge and against my wishes. How dare they use my name and my life this way! One of the Justices of the Supreme Court said during oral argument in my case “What does it matter if she is real or not.” Well, I am real and it does matter.

Sandra Cano died last September. I honor her memory. She could have remained silent about the false foundation of the Doe v. Bolton decision (a decision that is still in force today), but she spoke up instead.

She Said It: Mother Teresa to the U.S. Supreme Court

Mother Teresa (photo from Missionaries of Charity Fathers web site)
Mother Teresa (photo: (c) 1986 Turelio via Wikimedia Commons)

I hope you will count it no presumption that I seek your leave to address you on behalf of the unborn child. Like that child I can be considered an outsider. I am not an American citizen….It was a sad infidelity to America’s highest ideals when this Court said that it did not matter, or could not be determined, when the inalienable right to life began for a child in its mother’s womb. America needs no words from me to see how your decision in Roe v. Wade has deformed a great nation….I have no new teaching for America. I seek only to recall you to faithfulness to what you once taught the world. Your nation was founded on the proposition—very old as a moral precept, but startling and innovative as a political insight—that human life is a gift of immeasurable worth, and that it deserves, always and everywhere, to be treated with the utmost dignity and respect.

These words were addressed by Mother Teresa of Calcutta to the U.S. Supreme Court in 1994. They were part of an amicus brief (which may be read in full at this link) addressing two cases being considered by the Court. Twenty years later, Roe v. Wade is still the law of the land.




Some things haven’t changed: 25 years ago today, the Court tiptoed around Roe

In 1989, I was waiting impatiently for the Supreme Court to issue an important decision. (Sound familiar?) June 30 came and went, and still the Justices hadn’t finished their business – a very unusual situation. Finally, on July 3,  the Court handed down its decision in Webster v. Reproductive Health Services. That was the day I learned that I was foolish to expect the Court to come down solidly one way or another in any abortion decision.

The state of Missouri wanted to restrict the use of state resources for abortion. In the sixteen years since Roe, no significant state restriction on abortion had withstood a challenge. Webster changed that on a 5-4 vote, with the plurality decision written by Chief Justice William Rehnquist. I am oversimplifying here (the case had a plurality opinion, two concurring opinions, and two concurring-in-part-and-dissenting-in-part opinions), but the upshot of Webster was that while abortion was a liberty protected under the Due Process clause of the Constitution, a state need not commit any resources to abortion. From Rehnquist:

“Nothing in the Constitution requires States to enter or remain in the business of performing abortions. Nor, as appellees suggest, do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions.”

The fact that the Missouri law had a preamble recognizing that life begins at conception was irrelevant to the decision and could be ignored, said Rehnquist, since the preamble was not in itself a law.

I was not the only person walking around saying “huh??” for a couple of days after that one. Portions of the Missouri law were upheld, while Roe itself was left intact – a fact that bothered Justice Scalia no end. From his concurrence, in which he seemed to be holding his nose as he wrote:

“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.”

Justice Blackmun, Roe‘s author, was still on the Court in 1989. He didn’t like the Missouri law one bit, and in his dissent he made sure the world knew it. “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

It’s 2014, and Roe still stands. Over fifty million children have been aborted, according to some estimates. So much for controlling destinies. Chill wind, indeed. Yet Blackmun’s spiritual progeny hold that Roe is in danger of being overturned any minute. Statistics, licensing of abortion facilities, Gosnell-prevention measures, parental involvement: all threaten Roe, according to abortion advocates. All remain subject to one fight after another in state capitols and in courts. And more often than not, in recent years, the right of people to regulate abortion within their states has been affirmed by legislators and judges.

Twenty-five years ago, that was something new.



So much noise, so little substance: life after Hobby Lobby

One hates to be the skunk at the garden party, but that’s the position in which I find myself. The Supreme Court’s Hobby Lobby decision was a relief. That’s it. It isn’t worth having a party over. I wish it were.

The Twitterverse would have you believe otherwise. So would the flood of advocacy emails now filling my email inbox. One side thinks the decision is a terrible danger to women (though not to female business owners, somehow). The other side says it’s a smackdown to Obamacare, a ringing affirmation of the First Amendment, and an all-around win for the forces of truth and justice.

All this fuss and bother, just because five Justices (and only five) agreed that a boss in a closely-held private company may not be compelled to help pay for or procure an employee’s abortion-inducing “birth control.” This is a limited decision – appallingly limited.

Let’s all settle down and read the decision, shall we? As usual with end-of-term Supreme Court decisions, this issue is too important to leave to the lawyers.

What the Court’s majority said:

  • This is no landmark First Amendment case. This decision is based on two statutes: the Religious Freedom Restoration Act of 1993 and a follow-up law, RLUIPA, that Congress passed in 2000.
  • “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.” (Justice Alito writing for the majority)
  • “Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns [other parties to the case].” (Emphasis added.)
  • “By enacting RFRA, Congress went far beyond what this Court has [earlier] held is constitutionally required.”
  • Corporations have the same rights as individual persons for purposes of protection under RFRA. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga , and Mardel protects the religious liberty of the humans who own and control those companies.”
  • RFRA means that if the federal government has a compelling interest in a policy, and that policy raises religious-liberty issues for someone, the government must use the “least restrictive means” of furthering its interest. In the Hobby Lobby cases, the government has failed to show that the contraceptive mandate is the least restrictive way of promoting its interest in giving women “cost-free” access to the four contraceptive methods to which the owners of Hobby Lobby have religious objections.
  • “We will assume that the interest in guaranteeing cost-free access … is compelling within the meaning of RFRA…”
  • This decision does not apply to publicly-traded corporations or to nonprofits.
  • The federal government can pay for contraception without having to involve employers.

What the majority did not say:

The majority did not address the issue of whether the federal government is correct in making a public-health priority out of the suppression of women’s fertility. It did not give a blanket exemption to anyone who has religious objections to contraception and abortion. It addressed the plaintiff’s concerns over four particular abortifacient drugs and devices without addressing potential objections to other forms of birth control. It did not say the government has no business meddling in birth control (quite the contrary, in fact). It did not hold out hope that the Hobby Lobby reasoning would apply to larger, publicly-held corporations. It did not recognize that the mandate’s “accommodations” to religious entities are a joke. Maybe that will have to wait for the Little Sisters of the Poor case.

Justice Samuel Alito wrote the majority decision, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

What the minority said:

Justice Ruth Bader Ginsburg wrote a strong dissent, joined by Justices Sotomayor, Breyer and Kagan. That’s four, which is one vote away from five. Think about that as you consider who you want in the U.S. Senate, voting on confirmation of the next nominees to the Court.

Unlike the majority, Ginsburg was willing to bring the First Amendment right into the middle of the discussion, so that she could give it a clear dismissal. She calls the companies’ Constitution-based Free Exercise claims not tenable, where Alito considered them merely irrelevant (relying instead on RFRA).

“The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure. …In sum, with respect to free exercise claims no less than free speech claims, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ … I would confine religious exemptions under [RFRA] to organizations formed ‘for a religious purpose,’ ‘engaged primarily in carrying out that religious purpose,’ and not ‘engaged …substantially in the exchange of goods and services for money beyond nominal amounts.’” [Emphasis added.]

Enough for today, but watch out for future mandate cases

Much remains to be said, but for now, all I can conclude is that the decision could have been much, much worse. Dozens of more challenges to the mandate are in the federal courts now. Some are from for-profit companies. Many more are from non-profits that the Supreme Court might or might not decide are “religious” enough. Let’s hope Justice Ginsburg doesn’t write for the majority when those cases are decided.

Buffer zone reaction from some NH Gov & Senate candidates

Now that the Supreme Court has declared in McCullen v. Coakley that the Massachusetts buffer zone around abortion facilities is unconstitutional, where do New Hampshire’s candidates stand? Here’s a roundup of what gubernatorial and Senate hopefuls are saying on their web sites and in news reports. Note that candidate Scott Brown helped pass the law that just failed to pass constitutional muster.

U.S. Senate

Democratic incumbent Senator Jeanne Shaheen: “Buffer zone laws exist to protect women from harassment and intimidation as they seek medical care and in the absence of these protections, we are compromising public safety. We must be able to respect First Amendment rights while also protecting women at the same time, and I am disappointed by the Supreme Court’s decision which will have an unnecessarily harmful impact on the safety of women seeking to receive legal reproductive healthcare.”

Republican Scott Brown, who as a Massachusetts state senator voted to pass the Massachusetts law that was just declared unconstitutional: “I supported the Massachusetts law that created buffer zones around abortion clinics. Despite the Supreme Court’s decision striking down that law, I do not regret my vote. No matter how you feel about abortion, women should feel safe when they seek out and obtain medical services for themselves. Here in New Hampshire we have a similar buffer zone law. The Supreme Court has provided guidance on how to modify such a law so that it balances constitutionally-protected free speech rights with the right of women to feel safe. I encourage Governor Hassan and the New Hampshire Legislature to make any necessary adjustments so that the law can remain substantially in place.” (reported by nhjournal.com)

Republican Bob Smith:  “I am very pleased that the Court has ruled that the so-called “buffer zone” infringes upon the First Amendment rights of those who wish to protest against abortion. The unanimous decision of the Justices speaks volumes, as to how extreme this law was in the first place. It was a direct affront to our First Amendment freedoms and the law was originally crafted to harass pro-life people, who only wished to peacefully protest and perhaps save the life of an unborn child. Scott Brown voted for the Buffer Zone bill when he was a Massachusetts state senator. Liberal Governor, Maggie Hassan, also signed the “buffer zone” into law in New Hampshire and Senator Shaheen has long been an outspoken advocate for abortion. Once again Senator Brown finds himself aligned with the left and out of touch with the Republican Party. I am proud to announce that I am thrilled with the high court’s decision and that I am the only pro-life Republican in the race for U.S. Senate in New Hampshire and that I support the Republican Party platform 100%.” (reported by http://thedavelevineshow.ning.com/)

Republican Jim Rubens“Restricting peaceful speech and prayer in public spaces – even about controversial subjects like abortion – is flagrantly unconstitutional. I am happy that the court recognized this unanimously.”

Republican Mark W. Farnham on Twitter (@pudge1954): “Buffer zone: Principle or slippery slope? SCOTUS decides 35 ft. interferes with free speech. 1 inch? 10 ft. ? 25 ft.?  


Democratic Governor Maggie Hassan, who recently signed New Hampshire’s buffer zone law: “Women should be able to safely access health care and family planning services, and the bipartisan legislation that I signed earlier this month was narrowly tailored, with input from the law enforcement community and municipal officials, to ensure the safety and privacy of patients and the public, while also protecting the right to free speech. New Hampshire’s law is different than Massachusetts’, but we will closely review today’s decision to determine its impact, if any, on our state.”

Republican Andrew Hemingway“This is a victory for the First Amendment.  This is a victory for the right to free assembly and the right to free speech.  This court unanimously put aside any political preferences on the issue of abortion and acknowledged this is simply a matter of the First Amendment–something Maggie Hassan refused to recognize in her zeal to protect abortion providers, which is one protection not covered in the Constitution. This is yet another example of Governor Hassan’s extreme ideology—trampling on the Constitution to advance her personal political agenda.” 

Republican Walt Havenstein“This is a victory for the First Amendment and I agree with the Supreme Court.  The case shows how unwise it is to sign laws which infringe upon the Constitution.” (reported by nhjournal.com)

Some State Senators who voted on NH’s bill

A few state senators went public with their views on the decision.

Chief sponsor of the NH buffer zone bill, Sen. Donna Soucy (D-Manchester): “I will carefully review today’s decision issued by the U.S. Supreme Court to determine the impact, if any, on New Hampshire’s recently enacted law. I am thankful for the bipartisan work of my colleagues in the Legislature, that cautiously crafted a narrow law which is more limited than the Massachusetts’ law at issue in the decision. I continue to believe that women should be able to access critical health care services without fearing for their safety and will continue to work to ensure their safety while carefully balancing free speech rights.”

NH Journal (nhjournal.com) carried remarks from Manchester’s other two senators. Co-sponsor Lou D’Allesandro (D): “No matter how you look at it, it’s a blow. The New Hampshire law is a little different situation [from the MA law], but the basic premise is unconstitutional in nature, and that resonates. That’s the key ingredient.” From David Boutin (R), the only Manchester senator to vote against New Hampshire’s buffer zone: “The Supreme Court made the right decision. This case was about the people’s right of free speech and free assembly. The Supreme Court has validated those rights and invalidated the government’s effort to try to dampen those rights. It’s a good day for New Hampshire.”

Senator Sharon Carson (R-Londonderry), chairman of the Senate Judiciary Committee, who led the floor debate in opposition to the buffer zone bill:  “The Supreme Court’s unanimous decision today affirmed the concerns raised by lawmakers, Constitutional scholars, and others over this last session with regards to New Hampshire’s buffer zone bill. In siding with the plaintiffs in this case, the Court has agreed that these buffer zone laws pose an onerous burden to the free speech rights of those who wish to educate, protest, or otherwise exercise their Constitutional rights around these facilities. As the court noted in its ruling, there are steps lawmakers can take to ensure safe and open access for patients to reproductive clinics, but in crafting those laws we must be mindful of the First Amendment rights of all of our residents.”



Note: There are other candidates for Governor and U.S. Senate who have not released any statement about the buffer zone decision. See the entire list of candidates on the New Hampshire Secretary of State’s web site.