In Their Words: The Supreme Court Justices on Abortion A report by Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 l www.afj.org January 8, 2014 About Alliance for Justice Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. AFJ works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. It is the leading expert on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. For more information on this report, contact AFJ’s Washington headquarters. Alliance for Justice 11 Dupont Circle NW, Second Floor Washington, DC 20036 202.822.6070 All material within this report is protected by copyright law and may not be reproduced without the express written consent of Alliance for Justice. © 2014 Alliance for Justice CONTENTS Executive Summary ...................................................................................................................................... 4 The Line-Up: How the Justices Voted on Major Supreme Court Abortion Decisions ................................ 7 In Their Words: The Supreme Court Justices on Abortion ........................................................................... 8 A. Chief Justice John Roberts .................................................................................................................... 8 B. Justice Antonin Scalia ......................................................................................................................... 13 C. Justice Anthony Kennedy ................................................................................................................... 16 D. Justice Clarence Thomas ..................................................................................................................... 23 E. Justice Ruth Bader Ginsburg............................................................................................................... 25 F. Justice Stephen Breyer ........................................................................................................................ 32 G. Justice Samuel Alito ........................................................................................................................... 36 H. Justice Sonia Sotomayor ..................................................................................................................... 41 I. Justice Elena Kagan ............................................................................................................................ 47 Executive Summary Because of their profound impact on Americans’ fundamental rights, reproductive rights cases are among those watched most closely when they reach the United States Supreme Court. This term, the Court is scheduled to decide at least three such cases. McCullen v. Coakley deals with the constitutionality of a Massachusetts law establishing a 35-foot “buffer zone” around entrances to clinics that perform abortions, in order to protect women and families from harassment when accessing reproductive and family planning services. Opponents argue that the law violates the First Amendment. Oral argument in McCullen is set for January 15, 2014. The Court also is expected to decide two cases—Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius—concerning whether profit-making companies owned by individuals with religious objections to birth control must be exempted from the contraception coverage requirement in the Affordable Care Act. In this report, we provide the views of the current justices on reproductive rights issues, as expressed through their public statements before and during their confirmation hearings, their legal writing and their decisions. The voting records of the justices on the most significant reproductive rights cases are provided in the chart on page 7. Below and in the full report, their statements are set forth, beginning with the chief justice and then in order of seniority. Chief Justice John Roberts, pp. 8 to 12 During his time as a lawyer in the Reagan Administration John Roberts condemned the right to privacy—on which the right to abortion is predicated—as nothing more than judicial activism. Roberts also approved a statement by President Reagan comparing Roe v. Wade to the Dred Scott decision sanctioning slavery. During his confirmation hearing, Roberts emphasized his respect for precedent. He spoke of needing judges who “have the humility to recognize that they operate within a system of precedent.” Justice Antonin Scalia, pp. 13 to 16 During his confirmation hearings Scalia would not express an opinion on Roe v. Wade. He said he believed some precedents are stronger than others, but did not say whether he viewed Roe as a strong or a weak precedent. During his time on the Supreme Court, Scalia partially dissented from Planned Parenthood v. Casey, writing that “Roe was plainly wrong,” and he answered the question of whether abortion is a liberty protected by the Constitution by writing, “I am sure it is not.” He also wrote that “the Constitution contains no right to abortion.” Scalia has rarely shied away from sharing his opinions about abortion in public speeches and to the media. He has said: 4  “You think there ought to be a right to abortion? No problem. . . . Pass a law.”  “Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion.” Justice Anthony Kennedy, pp. 16 to 22 During his confirmation hearings, Kennedy said he believed there is a fundamental right to privacy. On the Supreme Court, he coauthored the controlling opinion in Planned Parenthood v. Casey. The opinion upheld a series of restrictions on abortion rights, but also said that “the woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is the rule of law and a component of liberty we cannot renounce.” Kennedy also has written opinions that condemn certain abortion procedures in harsh terms, including referring to doctors as “abortionists,” and he authored a dissent in a case upholding a Colorado law requiring buffer zones around abortion clinics. Justice Clarence Thomas, pp. 23 to 25 During his confirmation hearings, Thomas said he had given no thought to Roe v. Wade during or since his days in law school. Thomas said he did believe there is a constitutional right to privacy, and that he had no agenda to prejudge the issue of abortion. On the Court, Thomas has repeatedly criticized Roe. He wrote that the majority decision in Roe was “grievously wrong,” that the Court’s “abortion jurisprudence is a particularly virulent strain of constitutional exegesis,” and that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.” Justice Ruth Bader Ginsburg, pp. 25 to 32 In 1985, Ginsburg wrote in a law review article that the Roe decision was too broad and helped provoke a backlash. She has also said, “The emphasis must not be on the right to abortion but on the right to privacy and reproductive control.” On the Court, Ginsburg read from the bench a strong dissent in Gonzales v. Carhart, in which the majority upheld a law banning “partial birth” abortions, even when there is no exception for the health of the mother. She wrote that when the government controls the decision to bear a child, a woman “is being treated as less than a fully adult human responsible for her own choices.” Ginsburg has been part of the majority in cases upholding “buffer zones” around abortion clinics. Justice Stephen Breyer, pp. 32 to 36 During his confirmation hearings, Breyer said it was clear that Roe is the law of the land. He also outlined in detail his view that there is a constitutional right of privacy. On the Court, Breyer dissented from a decision last year allowing a Texas bill imposing significant new restrictions on abortion providers to take effect. Allowing the law to take effect, Breyer wrote, “seriously disrupts” access to abortion in Texas. Previously, Breyer wrote the 5 majority opinion striking down a law banning “partial birth” abortion in Nebraska. Breyer joined Ginsburg’s dissent in Gonzales v. Carhart and he joined the majority in upholding buffer zones. Justice Samuel Alito, pp. 36 to 41 Alito’s writings on abortion during his time in the Reagan Administration led some newspapers to publish pieces titled, “Alito Helped Craft Reagan-Era Move to Restrict ‘Roe,’” and “Alito File Shows Strategy to Curb Abortion Ruling.” In a job application he wrote: “I am particularly proud of my contributions to recent cases in which the government has argued in the Supreme Court that . . . the Constitution does not protect a right to an abortion.” When asked about these statements during his confirmation hearings Alito said the role of an advocate is different from the role of a judge. While a judge on the Third Circuit Court of Appeals, Alito said that that court’s decision in Planned Parenthood v. Casey, upholding all but one restriction on abortion, did not go far enough—all of the restrictions should have been upheld. During his confirmation hearings, Alito expressed respect for precedent but refused to characterize Roe as “settled law.” While on the Supreme Court, Alito voted with the majority in Gonzales v. Carhart. Justice Sonia Sotomayor, pp. 41 to 47 During her confirmation hearings Sotomayor indicated that Roe is settled law and that there is a constitutional right to privacy. While on the Supreme Court Sotomayor signed onto Breyer’s dissent in the Texas case discussed above. Recently, Sotomayor issued two rulings in cases related to contraception and the Affordable Care Act. She rejected a request by for-profit company Hobby Lobby to delay enforcement of a provision of the Affordable Care Act requiring companies to cover birth control in their insurance policies for their employees. In a second case involving another portion of the law affecting contraception coverage for employees of religiously-affiliated organizations, she granted a request to delay application of that part of the law to a nursing home they run by a group of nuns, pending further review. Justice Elena Kagan, pp. 47 to 51 During her confirmation hearing, Kagan said this about the right of the government to regulate abortion: “As I understand the law after [Planned Parenthood v.] Casey, it’s that, after viability, the state can regulate as it pleases, except for situations where the woman’s life or health interests are at issue. Before viability, the question is whether there is an undue burden on the woman’s ability to have an abortion.” While on the Court, Kagan signed onto Justice Breyer’s dissent in the Texas case discussed above. 6 The Line-Up: How the Justices Voted on Major Supreme Court Abortion Decisions X: Vote against advocates arguing for abortion rights. : Vote in favor of advocates arguing for abortion rights. Webster Hodgson v. Rust v. Planned Schenck v. Stenberg Ayotte v. Gonzales v. Repro. Minnesota2 Sullivan3 Parenthood Pro-Choice v. Planned v. Health v. Casey4 Network of Carhart6 Parenthood7 Carhart8 Servs.1 West. NY5 C.J. Roberts  X J. Scalia X X X X X X  X J. Kennedy X X X  X X  X J. Thomas X X X  X J. Ginsburg / X    J. Breyer     J. Alito X J. Sotomayor J. Kagan The Cases: 1 492 U.S. 490 (1989). Challenge to Missouri law that included a variety of restrictions on abortion: prohibiting public employees from providing or assisting in non-life threatening abortions; prohibiting the use of public facilities for abortion unless necessary to save the woman’s life; and requiring physicians to perform test to determine viability of fetuses after 20 weeks of pregnancy. Court upheld the law. 2 497 U.S. 417 (1990). Challenge to Minnesota law requiring minors to notify both biological parents before abortion, with exception for medical emergencies and parental abuse and judicial bypass option. Court upheld the law. 3 500 U.S. 173 (1991). Challenge to President Reagan’s “gag rule,” prohibiting family planning programs funded by Title X from discussing, counseling on, or making referrals for abortion; funds could only be used for prenatal care. Court upheld regulation. 4 505 U.S. 833 (1992). Challenge to Pennsylvania Abortion Control Act, which included a variety of abortion restrictions: an “informed consent” provision requiring doctors to inform women of the health risks of abortion and of childbirth—as well as the probable gestational age of the fetus and the availability of printed materials published by the state—before attaining women’s written consent; a 24-hour waiting period between the initial “informed consent” appointment and an abortion; parental consent for young women under 18 with a judicial bypass procedure; a “spousal notification” provision requiring married women to attain written consent from their husbands prior to an abortion; and a variety of reporting requirements. The Court upheld all restrictions except spousal notification and imposed a new “undue burden” standard, though the plurality “once again reaffirmed” the “essential holding of Roe v.Wade.” Id. at 846. Justice Kennedy receives a checkmark for co-authoring the decision to reaffirm Roe’s “essential holding.” 5 519 U.S. 357 (1997). Challenge to fixed and floating “buffer zones” to restrict abortion clinic blockaders. Court upheld “fixed” buffer zones because of public safety interests, and struck down “floating” buffer zones (requiring protestors to stay 15 feet away from individuals accessing clinic) as imposing too great a burden on speech. Justice Ginsburg voted to uphold the constitutionality of the fixed buffer zones, but voted to strike down the floating buffer zones. Justices with red Xes voted against the constitutionality of both kinds of buffer zones; Justice Breyer voted to uphold both. 6 530 U.S. 914 (2000). Challenge to Nebraska “partial-birth” abortion ban without exception to protect woman’s health. Court struck down law. Breyer authored the majority opinion; all four dissenting Justices authored dissenting opinions. 7 546 U.S. 320 (2006). Challenge to New Hampshire parental notification law that included a judicial bypass option, but lacked a medical emergency exception to protect minor women’s health. Court unanimously remanded back to lower court with recommendation to strike down the law either in whole or in part for lacking a health exception. 8 550 U.S. 124 (2007). Challenge to federal Partial-Birth Abortion Ban Act of 2003, which did not include an exception to protect the health of the woman. The Court upheld the law. Justice Kennedy authored the majority opinion; Justice Ginsburg authored a strong dissent, which she read aloud from the bench. 7 In Their Words: The Supreme Court Justices on Abortion The following report documents what each of the Supreme Court Justices has said about abortion as nominees to the Supreme Court, as Justices on the Supreme Court, and, where relevant, in their roles prior to their nomination to the Supreme Court. A. Chief Justice John Roberts Chief Justice John G. Roberts, Jr. was appointed to the Supreme Court by President George W. Bush and confirmed by the Senate in 2005. Before being appointed to the Supreme Court, Chief Justice Roberts served as judge on the U.S. Court of Appeals for the D.C. Circuit—to which he was appointed by President George W. Bush—as well as in the Solicitor General’s office during the George H.W. Bush Administration, and as a lawyer for the Reagan Administration. 1. The Reagan Administration In a draft article on “judicial restraint,” John Roberts condemned the right to privacy as nothing more than judicial activism; he quoted Justice Black’s dissent in Griswold v. Connecticut,9 saying that to call a right to privacy “fundamental,” is a “loose, flexible, uncontrolled standard for holding laws unconstitutional,” and that the “broad range of rights which are now alleged to be ‘fundamental’ . . . with only the most tenuous connection to the Constitution, bears ample witness to the dangers of this doctrine.” 10 Although Roberts’ objection to the right to privacy did not mention Roe or abortion, in citing the dissent in Griswold, he went to the heart of the right and criticized all of the Supreme Court’s fundamental rights jurisprudence. Moreover, in a memorandum, Roberts summarized a speech by former Harvard Law School Dean Erwin Griswold that criticized the Supreme Court’s privacy decisions. In his summary, Roberts explained that the speech was consistent with Attorney General William French Smith’s “policymaking themes.”11 Agreeing with Griswold’s critique, Roberts wrote that Griswold “devotes a section to the so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution. He specifically criticized Roe v. Wade in the memorandum as well,12 and later drafted a reply to Griswold on Smith’s behalf saying, “[y]ou 9 381 U.S. 479, 521 (1965). In Griswold, the Court struck down a Connecticut law that prohibited the prescription, sale, or use of contraception by married couples. The 6-2 majority opinion, authored by Justice William O. Douglas, struck down the law as an unconstitutional violation of marital privacy—a right that Justice Douglas called, “older than the Bill of Rights—older than our political parties, older than our school system.” Id. at 486. 10 Draft Article on Judicial Restraint (updated) (on file with Alliance for Justice). This Draft Article was attached to a memorandum from John Roberts, to Kenneth W. Starr, re: Judicial Restraint Drafts (Nov. 24, 1981) (on file with Alliance for Justice). 11 Memorandum from John G. Roberts, to The Attorney General, re: Erwin Griswold Correspondence (Dec. 11, 1981) (on file with Alliance for Justice). 12 Id. 8 were quite right that I would find a ‘measure of resonance’ in your lecture.”13 Roberts also approved of remarks that called for “reversing ‘the tragedy of Roe v. Wade and Doe v. Bolton,’” another abortion rights case.14 Roberts was also involved in presidential messaging around abortion. He signed off on proposed answers to an interview with fundamentalist Pat Robertson, in which President Reagan cited the “tragedy of abortion” as something about America that displeases God.15 With only minor editorial change, Roberts also approved of a presidential telegram to a memorial service for 16,500 fetuses. Again referencing the “abortion tragedy,” the telegram compared the Dred Scott decision sanctioning slavery to Roe v. Wade and said that the toll at Gettysburg could be traced to Dred Scott like the 16,500 deaths could be traced to Roe. The Washington Post reported that this memorandum “provide[d] the clearest insight to date into Roberts’ personal views on abortion . . . .” 16 2. Solicitor General’s Office During his time in the Solicitor General’s office during the George H.W. Bush Administration, Roberts advocated positions adverse to women’s reproductive rights in two significant cases. Rust v. Sullivan:17 Roberts co-authored the government’s brief in Rust, in which the Supreme Court upheld newly-revised regulations prohibiting U.S. family planning programs receiving federal aid from giving any abortion-related counseling or other services. The provision barred such clinics not only from providing abortions, but also from “counseling clients about abortion” or even “referring them to facilities that provide abortion.”18 Roberts’ brief argued that the regulation gagging doctors and others participating in government-financed programs from discussing medical options with patients was necessary to fulfill Congress’s intent not to fund abortions through these programs, even though several members of Congress, including sponsors of the amendment dealing with abortion funding, disavowed that position, and even though the Department of Health and Human Services had not previously interpreted that provision in such a restrictive manner.19 Although holding of Roe v. Wade was not directly at issue in the case, Judge Roberts’ brief argued that “[w]e continue to believe that Roe was wrongly decided and 13 Letter from William French Smith, Attorney General, to Erwin N. Griswold, Esq. (undated) (on file with Alliance for Justice). 14 Memorandum from John G. Roberts, to Fred F. Fielding, re: Talking Points Regarding Phone Call to Americans Against Abortion Rally (June 7, 1985) (on file with Alliance for Justice). 15 Memorandum from John G. Roberts, to Fred F. Fielding, re: Draft Answers for Interview Tomorrow with Dr. Pat Robertson (Apr. 23, 1985) (on file with Alliance for Justice). 16 Amy Goldstein & Jo Becker, Memo Cited ‘Abortion Tragedy’, WASHINGTON POST, Aug. 15, 2005, at A1. 17 500 U.S. 173 (1991). 18 42 U.S.C. 300 (1984), Tit. X, § 1008. 19 Brief for the Respondent, Rust v. Sullivan, 500 U.S. 173 (1991) (Nos. 89-1391, 1392). A 1978 memorandum from the Department of Health and Human Services stated that, “This office has traditionally taken the view that . . . the provision of information concerning abortion services, mere referral of an individual to another provider of services for abortion, and the collection of statistical data and information regarding abortion are not considered to be proscribed by [the regulation at issue].” Id. (citing memorandum from Carol C. Conrad, Office of General Counsel, Dep’t of Health, Education & Welfare, to Elsie Sullivan, Ass’t for Information and Education, Office of Family Planning, BCHS (Apr. 14, 1978)). 9 should be overruled. . . . [T]he Court’s conclusion[] in Roe that there is a fundamental right to an abortion . . . find[s] no support in the text, structure, or history of the Constitution.” 20 Bray v. Alexandria Women’s Health Clinic:21 As Deputy Solicitor General, Roberts argued in an amicus curiae brief in Bray v. Alexandria Women’s Health Clinic that Operation Rescue protestors and six other individuals who blocked access to reproductive health care clinics did not discriminate against women because “the right to have an abortion is not a fact that is specific to one gender.”22 In oral argument for the case, Roberts compared Operation Rescue’s attempts to prevent women from accessing clinics to an ecologist’s efforts to block an Indian tribe from using their exclusive fishing rights.23 3. Supreme Court Confirmation Hearings During his confirmation hearings to be Chief Justice of the United States Supreme Court, John Roberts spent a great “I do think that it is a deal of time discussing his respect for precedent and stare decisis. In his opening statement, he famously remarked, jolt to the legal system “What we must have, what our legal system demands, is a fair and unbiased umpire, one who calls the game according when you overrule a to the existing rules and does so competently and honestly every day. This is the American ideal of law.”24 He spoke precedent.” of needing judges who “have the humility to recognize that -Chief Justice John they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and Roberts [who] have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.”25 Respect for precedent became a theme of his hearings:  “[T]he principle [of following precedent] goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, ‘To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.’ So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.”26  “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the Court has emphasized this on several occasions. It is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question. And you do look at these other factors, like settled expectations, like the legitimacy of the Court, like whether a particular precedent is workable or not, 20 Brief for the Respondent, Rust (nos. 89-1391, 1392). 21 506 U.S. 236 (1993). 22 Brief for The United States as Amicus Curiae Supporting Petitioners at 33, Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) (No. 90-985). 23 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing before the Committee on the Judiciary, 109th Cong. 224-25 (2005). 24 Id. at 31. 25 Id. at 55. 26 Id. at 141-42. 10