MOST SUPREME COURT watchers have focused on the views of newly appointed justice Anthony Kennedy for clues to the evolution of a Court that, with the retirement of Justice Lewis Powell, is now tenuously balanced between predictable liberal and conservative blocs. This absorption with Kennedy is understandable. Yet in certain controversial areas of current jurisprudence one conservative may be inching toward a pragmatic middle ground. In the areas of abortion and affirmative action it may thus be the more substantial record of Justice Sandra Day O'Connor that will shed the most light on the future path of the Supreme Court.
When O'Connor was nominated by President Ronald Reagan to the Supreme Court, in the summer of 1981, some conservatives, alarmed by her pro-choice votes as an Arizona state legislator, strongly protested. While O'Connor maintained that she was personally opposed to abortion, her refusal in her Senate confirmation hearings to reveal how she would vote, because the issue would soon be before the Court, did little to quiet the anti-abortion forces.
By the end of her first term on the Court the anti-abortion activists were wondering why they had raised all the fuss. Although the Court's 6-3 decision in the 1983 case Akron v. Akron Center for Reproductive Health strongly reaffirmed the right to abortion first declared in Roe v. Wade, Justice O'Connor wrote a harsh dissent. Pro-choice advocates were of course disappointed with O'Connor's vote, but the 6-3 margin in Akron seemed to give them some breathing room. In 1986, however, Chief Justice Warren Burger switched sides in a case similar to Akron, retired, and then was replaced by the very conservative Antonin Scalia. Suddenly the right to abortion hinged on a single vote. With Chief Justice William Rehnquist and Justices Byron White and Scalia all set to overturn Roe v. Wade, the fifth and decisive vote will belong to O'Connor, if Kennedy joins the antiabortion ranks.
The basis for the abortion right is the right to privacy. The assertion that matters like privacy, which are not addressed in any specific clause of the Constitution, are constitutionally protected is usually termed fundamental-rights jurisprudence or substantive due process. The recognition of such rights is designed, to quote from some of the cases that established the privacy right, to protect individuals from governmental action that "shocks the conscience," violates "basic values 'implicit, in the concept of ordered liberty,'" or infringes liberties "so rooted in the traditions and conscience of our people as to be ranked as fundamental."
Fundamental-rights theories are heresy to strict constructionists like Rehnquist and Scalia. The due-process clause of the Fourteenth Amendment, they contend, by definition guarantees only procedural protections. Strict constructionists argue that to ensure that federal judges do not substitute their personal values for the will of the majority they must anchor all rights in a specific clause of the Constitution.
O'Connor has never written or joined an opinion that advocated the reversal of the current constitutional protection of a fundamental right to privacy or a fundamental right to choose an abortion. Instead she has launched a narrower but concerted attack on how the right to privacy has been applied to abortion. The Supreme Court's ruling in Roe v. Wade established that women possessed a right to terminate a pregnancy, but that this right could be regulated when the state had a "compelling interest" in the health of the mother and even prohibited in the third trimester when the state had a compelling interest in the potential life of a viable fetus. Currently, adult women thus possess a nearly unrestricted right to choose to have an abortion prior to the time the fetus is viable.
This trimester system is the target of O'Connor's harshest criticism. It is analytically unsound, she argues, because no basis exists for finding that a state's "compelling interest" in maternal health and potential life varies according to the stage of pregnancy involved. Furthermore, she finds the trimester system "completely unworkable," because it will hold local governments hostage to changing technology and medical practices.
O'Connor's dissents in Akron and in Thornburgh v. American College of Obstetricians and Gynecologists, a 1986 case with facts similar to those in Akron, suggest that, given a chance, she would sustain neither the trimester framework developed in Roe nor past rulings that have struck down statutes and ordinances regulating but not effectively prohibiting abortions. The critical question for pro-choice advocates is whether any right to abortion can survive such a revamping of the law.
The hope that pro-choice advocates maintain for O'Connor stems from her overall judicial temperament and philosophy. She is not committed to a specific academic theory of constitutional interpretation. Instead her deepest concern has been that the federal judiciary—and especially the Supreme Court—operate in the real world, in a manner that furthers democratic principles and promotes the perception and reality of "the rule of law." It is one thing for her, or any other justice, to lash out in dissent against what she perceives as an incoherent or unjustified majority opinion. It is another thing to cast the decisive vote in what would be one of the major constitutional reversals of this century. If O'Connor rules that the Constitution provides absolutely no right to abortion, it will not be a decision that she will make without reflecting deeply. It is worth pausing over some of the considerations that, to judge by the body of her written opinions, she will weigh in reaching her decision.
LET US BEGIN by considering the most principled yet painful means of overturning the right to choose an abortion—attacking the right to privacy. In a variety of constitutional cases, ranging over sixty years, the Supreme Court has expressed views in accord with its declaration that "no right is held more sacred, nor is more carefully guarded ... than the right of every individual to the possession and control of his [or her] own person," to use a passage from an 1891 case which continues to inform the Court's evolving conception of privacy. A decision to abolish any fundamental right to choose to terminate a pregnancy could force O'Connor into the painful position of either having to overturn decades of constitutional law or having to make the very kind of arbitrary distinctions about which areas of privacy deserve constitutional protection that she found so objectionable in Roe. This is not to suggest that stare decisis—the respect for precedents—would be an absolute obstacle for O'Connor. She has, in fact, explicitly stated that stare decisis should not be adhered to as strictly in constitutional cases, where "correction" comes only through the onerous constitutional-amendment process. Few who remember Plessy v. Ferguson, which blessed "separate but equal" racial segregation, and similar travesties would dispute her on this point.
Nonetheless, O'Connor might still find troubling the degree of constitutional disruption required to establish a principled basis for abolishing the right to an abortion. As the Bork hearings demonstrated, many of the strands of the right to privacy have become deeply interwoven in the social fabric of this country. If the fundamental right to privacy has to be abolished to permit a highly principled reversal of the right to choose an abortion, that is a high price to pay.
The second consideration that will figure in O'Connor's deliberations has to do with defining the scope of the concept of compelling interests. Under current constitutional law, fundamental rights can be infringed only when the state has a compelling interest in doing so. While the present framework requires states to ensure that such infringements are as unintrusive or narrowly tailored as possible, no clear standards exist for weighing the importance of the fundamental right at stake. The ramifications, therefore, of finding—as O'Connor did in Akron—that the state has a compelling interest in the potentiality of life throughout the entire pregnancy are quite severe. For example, if a state's compelling interest can outweigh an individual's fundamental right, the state's interest in the fetus could be used to justify state statutes or local ordinances that criminalized abortions for all women, including victims of rape and incest, even if the Court maintained that a fundamental right to abortion exists. O'Connor's broadly defined compelling interest could also be used to outlaw the IUD, which prevents implantation of the egg after fertilization.