MOST SUCREME 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 prochoice 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 anti-abortion 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 fundamentalrights 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 he 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 prochoice 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.
Furthermore, O’Connor’s view that a state has a compelling interest in maternal health throughout the entire pregnancy also has troubling ramifications. Does this mean that the state can deny someone all choice in the type, method, and site of medical treatment any time a particular method is found to be somewhat safer than others? O’Connor’s opinions could be interpreted this way even though courts have generally found that people should have control over the type of medical treatment administered to them. The broad consequences of such a decision will be another topic for reflection by O’Connor.
Tempering this apparently extreme view of compelling interest is O’Connor’s concern for consistency in the rule of law. Part of her disenchantment with Roe v. Wade is that the inherent impermanence of the trimester system hampers democratic decision-making while encouraging the perception that court decisions are products of the personal preferences of the judges rather than of the rule of law. It is far from clear, however, that eliminating a woman’s current constitutional right to an abortion would in the long run further the notion that we are governed by the rule of law and not by men and women.
Imagine, for example, that the Rehnquist Court abolished the right to abortion and then the Democrats won the White House in 1988 or 1992 and replaced a retiring Justice White or Chief Justice Rehnquist with a nominee who found that the Constitution does protect the pregnancy-related decisions of women. What then? The Supreme Court’s reading of the Constitution would likely flip-flop again; abortion would have been a legal medical procedure, then (in some states) murder, and then legal again. Such oscillations would only further a public perception that constitutionality is nothing more than the cumulative product of the political parties’ power and luck at controlling new appointments.
Abolishing the right to abortion could also lead to judicial chaos among the states. If safe “week after” or “month after” pills are eventually approved by the Food and Drug Administration and marketed, one can envision their being sold next to Tylenol or People magazine in pro-choice states, while in anti-abortion states possessing them would be cause for a prison sentence. Could a producer in a pro-choice state be indicted or held liable for a “fetus murder” in another? Could a pregnant mother who resides in anti-abortion Arizona be indicted for murder if she travels or moves to California to obtain an abortion?
SEEING O’CONNOR as a potential swing vote, pro-choice litigators will be searching for bases to uphold a limited right to abortion which are consistent with both her judicial values and her objections to Roe v, Wade. Do any such bases exist? At least two are worth considering.
One basis O’Connor might accept would be to hold that a state cannot define its compelling interest so broadly that it wipes out a fundamental right. In other words, when promulgating policies to safeguard the potentiality of life in a fetus a state would have to make some accommodation to a woman’s right to privacy in deciding whether or not to carry her pregnancy to completion. Such balancing is not uncommon: important individual interests are often weighed when defining the contours of a compelling governmental interest. The Court defines the compelling interest in the potential life of a viable fetus as a right to “proscribe abortion altogether, except when it is necessary to preserve the life and health of the mother.” This definition implicitly balances the mother’s interest in her health against the compelling state interest in the fetus.
Such a standard would be attractive to O’Connor in three respects: First, states and local governments would be free to set up any regulatory framework for abortion as long as some accommodation were made for the right to privacy in making a choice. Second, the standard would expel all viability and trimester issues from constitutional analysis. Third, it would limit judicial review to a single issue—does the state’s framework allow some meaningful avenue for a woman to exercise her right to privacy in choosing to terminate a pregnancy?
Another basis O’Connor might find acceptable for upsetting anti-abortion statutes is that they single out women to make serious bodily sacrifices for the sake of another’s life. American law has rarely required a person to call a doctor for a dangerously ill companion, or to risk injury or death to save a person’s life. More analogous to abortion, no state has ever required a parent to donate an organ for transplant to save the life of his or her child.
AFFIRMATIVE ACTION is another issue likely to focus attention on O’Connor now that Powell has left the Court. Kennedy’s record appears conservative on controversial race issues, and Justices Scalia, White, and Rehnquist are as skeptical toward race-conscious remedial efforts as Justices Marshall, Blackmun, Brennan, and Stevens have been sympathetic. O’Connor could easily become the main target for litigators seeking a fifth vote.
In the early 1980s the Reagan Department of Justice (DOJ) began a vigorous assault, led by Assistant Attorney General William Bradford Reynolds, on the constitutional and statutory validity of any form of affirmative action. The breadth of its attack was sweeping: the Constitution and Title VII of the Civil Rights Act of 1964, Reynolds argued, mandated complete color-blindness and thus forbade all race-conscious remedial efforts. The only deserving beneficiaries of civil-rights remedies, Reynolds claimed, were the identifiable victims of specific discriminatory acts or policies.
The DOJ’s crusade received a major boost in 1984, when the Supreme Court—with O’Connor concurring— ruled in Firefighters Local Union v. Stotts that federal courts could not protect affirmative-action hiring gains from “lasthired first-fired” layoffs by disrupting a seniority system through a consentdecree modification. Despite the narrowness of the ruling, the scope of the reasoning in part of Justice White’s majority’ opinion gave hope to the DOJ’s crusade, while sending a chill through the civil-rights community.
By last spring, however, the Supreme Court had rejected the Reagan Administration’s identifiable-victim standard in five consecutive cases. Although O’Connor objected to specific aspects of the affirmative-action remedy before the Court in three of these cases, she dismayed the DOJ by consistently joining the majority in finding legally permissible race-conscious hiring or promotion plans crafted to remedy past discrimination while minimizing harm to nonminorities. In attempting to stake out a middle ground, O’Connor wrote separate opinions in all six cases. These opinions reveal the issues that are critical to understanding her affirmativeaction jurisprudence.
The Reagan Administration opposes affirmative action on the grounds that all raceor sex-conscious measures are pernicious, regardless of who is helped or hurt by them. Civil-rights advocates hotly dispute this view. They claim that our now ingrained ethic against discrimination flows not from the abstract use of race or sex but instead from our sad legacy of using such distinctions to exclude minorities and women from the full benefits of citizenship because of archaic stereotypes or beliefs in innate inferiority. Race-conscious efforts to include outcast groups in the mainstream, they argue, should not be subject to strict scrutiny, because such efforts are designed to promote equal citizenship and hasten the day when the society will in fact be color-blind.
Justice O’Connor’s approach to affirmative action seems to accept the form advocated by its foes but the substance argued by its supporters. In agreement with the Reagan Administration and the Court’s conservative wing, O’Connor has consistently stated that the race or sex of the beneficiaries or victims of raceor sex-based distinctions should not affect the degree of judicial scrutiny applied to the measure in question. However, in deciding if a governmental measure is compelling or otherwise important enough for a raceor sex-based distinction to be valid, O’Connor makes the purpose of the measure the determining issue in her analysis. If the purpose is to correct past discrimination or perhaps to promote diversity, the measure will satisfy O’Connor as long as it is narrowly tailored. If the raceor sex-conscious distinction is designed to further second-class citizenship by perpetuating debilitating stereotypes or notions of inferiority, O’Connor will find the governmental purpose inappropriate and the measure unconstitutional. Despite her analytical framework, her equal-protection reasoning is thus not fundamentally different from that offered in recent opinions by Justice Brennan.
This focus is clear, for example, in Mississippi University for Women v. Hogan, in which O’Connor, writing the Court’s opinion, found the existence of a statesponsored all-female nursing school unconstitutional. O’Connor’s constitutional inquiry centered on whether the purpose for maintaining that particular single-gender school was to compensate for past disadvantages or “to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior. . . .” An all-female nursing school, O’Connor ruled, was invalid because it “tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job.”
ANOTHER MUCH-DISPUTED issue in affirmative-action jurisprudence is the degree of evidence an employer must adduce to establish that the purpose of voluntary race-conscious measures is in fact remedial. The controversy often centers on the role of statistics. Affirmative-action advocates often cite statistical disparities between racial and ethnic groups as evidence of discrimination, while conservatives argue that such disparities may be the result of cultural differences, not discrimination.
O’Connor has pursued a middle ground in this debate. She agreed with Justice Powell in Wygant v. Jackson Hoard of Education that societal discrimination by itself was not sufficient to justify raceconscious measures. At the same time she also recognized that significant disparities between the racial composition of a work force and the “percentage of qualified minorities in the relevant labor pool” could be used to draw an inference of past discrimination that would justify voluntary affirmative action. This standard recognizes the inherent inadequacy of limiting remedies to identifiable victims: where discrimination has been so pervasive or egregious that minorities are deterred from even seeking employment, there may be no “identifiable” individual victims even though an entire minority community has been totally excluded from a work force or a job category.
O’Connor’s middle-ground position is also in evidence in her view’ of voluntary affirmative-action plans. In a televised interview with Bill Moyers, O’Connor explained that workable standards for determining the legality of voluntary affirmative action are necessary to rescue employers from a Catch-22. On the one hand, where the composition of a particular work force indicates apparent past discrimination, an employer who responds with a voluntary raceor sexconscious remedial plan could face a lawsuit from white men. On the other, a failure to take such remedial steps could result in similar legal action from minorities or women. Since many of the employers in such cases are states and cities, O’Connor no doubt felt some of the same concerns here that she expressed in the Akron abortion case: uncertain judicial standards may hamper the democratic functioning of local governments.
O’Connor shares with Congress a preference for voluntary remedies over court-ordered ones. Of the six affirmative-action cases since 1984, the three that have troubled her most have involved court-ordered remedies that she felt were too rigid. She is adamant in insisting that court-ordered hiring goals not operate as fixed quotas. Hiring goals, she argues, are more flexible than quotas because they focus ultimately not just on numerical results but on the employer’s efforts to reach those goals. In a case in which the Court upheld raceconscious court orders against a recalcitrant New York union, O’Connor dissented because she felt that the hiring goal too closely resembled a quota.
Although she found the Court’s standards in the most recent voluntary case “expansive and ill-defined,” in another case, involving Cleveland firefighters, she agreed that voluntary-consent decrees need not be as restrictive under Title VII as court orders. In Wygant, O’Connor even displayed passion when arguing that a requirement making employers admit or explicitly prove their own past discrimination before instituting voluntary race-conscious remedies would be unwise, because it would deter and undermine commendable governmental efforts. “The value of voluntary compliance,” O’Connor wrote, “is doubly important when it is a public employer that acts, both because of the example its voluntary assumption of responsibility sets and because the remediation of governmental discrimination is of unique importance.”
As MUCH AS ANYONE on the Court, O’Connor has focused her affirmative-action analysis on the issue of innocent third parties. Although she rejects the Administration’s argument that burdens on innocent third parties are a reason to ban all race-conscious remedies, she feels that the extent of such burdens should be the main consideration for determining when an otherwise appropriate affirmative-action plan is narrowly tailored enough to be legally permissible.
In Stotts, O’Connor’s focus was on procedural fairness. More specifically, O’Connor stated that innocent emplovees burdened by a race-conscious consent decree “must be represented and have had full participation rights in the negotiation process.” In the remaining cases O’Connor’s concern centered on whether burdens on innocent third parties were “truly necessary” to remedy the lingering effects of discrimination. Even in a case involving a notorious history of discrimination by the Alabama Department of Public Safety, O’Connor was still angered that a rigid race-conscious promotion remedy was imposed ”without consideration of any of the available alternatives” (emphasis in original).
Such opinions by O’Connor, however, fail to recognize that strong measures to speed up the remedial process are necessary to protect equally innocent minorities. Where systematic discrimination excludes minorities from vital governmental departments (public safety, education), the exclusion is aimed at and felt by the affected black or Hispanic community. Thus, the longer the remedial process takes, the longer innocent minority communities arc forced to suffer the very under-representation that past bigots intended.
Her focus on innocent parties, in any case, may be of special significance for the message it sends designers of affirmative-action plans: race-conscious remedial efforts that rely on dividing the burdens equitably may be legally sounder than those that impose burdens on a few innocent third parties. Currently most affirmative-action disputes are perceived as requiring painful trade-offs between the interests of victimized minority communities and those of innocent white individuals. Yet there has been little innovative thinking among courts, local governments, and employers as to how to design corrective remedies that are both effective in overcoming discrimination and perceived as fair in distributing costs. For example, raceconscious efforts to cure past educational or public-employment discrimination by adding spots for minorities in previously biased professional schools or work forces would use tuition or the tax system to spread equitably the costs of this solution to a social problem. Also, where a race-conscious hiring plan and a last-hired first-fired seniority system come into conflict during cyclical downturns, reliance on work-sharing, rather than layoffs, may make economic sense as well as being equitable.
Justice O’Connor has not yet demonstrated to what degree she might assume a pragmatic, centrist role on key issues that currently div ide the Court. Yet the accusations of a rigid, radical-right ideology that torpedoed Robert Bork’s confirmation cannot be made against O’Connor. Liberals may be dismayed by O’Connor’s conservative instincts, but when the major constitutional issues of the day reach the nation’s highest court, she appears to keep one eye on the Constitution, one eye on the real world, and an open mind to judge what she sees. Court-watchers hoping to discern the future direction of the Supreme Court on abortion and affirmative action should keep both eyes on her.