Hospitalization Turns Spotlight on Rehnquist

(WOMENSENEWS)–As news spread yesterday that Chief Justice William H. Rehnquist has been admitted to hospital late Tuesday night, the spotlight turned on his court record.

For those concerned about the future of women’s reproductive rights, perspectives on Rehnquist are dominated by his steadfast reservations about Roe vs. Wade, the 1973 decision that said the constitution recognizes a right of privacy in personal decision-making that prevents states from criminalizing abortion in all cases.

“We hope that he’s well. We wish the best for him,” said Terry O’Neill, vice president of membership at NOW. “Obviously we care about the Supreme Court very deeply. We’re organized. We’ve got a resignation right now” she said, referring to Supreme Court Justice Sandra Day O’Connor. The first female justice announced her intention to resign two weeks ago, raising suspense about whom President Bush will nominate to take over that vacancy.

“We’ve been very vocal about that. But Justice Rehnquist has not resigned. He is ill.”

When pressed to comment on his record, O’Neill expressed dissatisfaction. “We know he’s anti-choice. That’s clear. And we don’t agree with him. And we do think that every justice ought to respect women’s rights.”

On the stakes for women in the potential of filling one or even two vacancies, O’Neill said, “If our fundamental rights are not protected, some of us will die. It’s very stark. That’s how we feel about the Supreme Court. Any Supreme Court justice who is nominated under any circumstances needs to go on record saying they respect women’s rights.”

Dissenting on Roe

As one of the two dissenters on Roe, Rehnquist argued that the right to privacy was, at best, a narrow concept limited to protection from inappropriate police search and seizure. He wrote about abortion that a “transaction resulting in anoperation such as this is not ‘private’ in the the ordinary usage of that word.”

In two later cases–often referred to simply as Casey and Carhart–Rehnquist reiterated his stance against Roe.

In “Casey,”–Planned Parenthood of Southeast Pennsylvania vs. Casey in 1992–Planned Parenthood challenged the Pennsylvania Abortion Control Act requiring parental consent, spousal consent, informed consent and 24-hour waiting period before obtaining an abortion as unconstitutional under Roe.

A majority of the court ruled with Planned Parenthood in upholding the basic rulings of Roe, but ruled against Planned Parenthood in permitting states to restrict abortion in many ways, including required waiting periods, parental notification and state-scripted literature.

Rehnquist disagreed with this consensus. He wrote for four dissenting justices that “The Court was mistaken in Roe …. We believe that Roe was wrongly decided.”

In the 2000 case of Stenberg vs. Carhart, the chief justice again broke from the majority, which ruled to strike down a Nebraska law that banned so-called “partial birth abortion” and the most common abortions procedures used during the second trimester of pregnancy. The law made no exception to allow abortions for the protection of women’s health, explicitly required by the prior decisions of the Supreme Court, including Casey.

“I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey and continue to believe that case is wrongly decided,” he wrote.

Ruled Against Rape Victim

Rehnquist, who became chief justice in 1986, also ruled against rape victims seeking the right to sue responsible parties in federal court when he delivered in 2000 the Court’s 5-4 opinion in United States v. Morrison.

That was a rape case brought by a freshman at Virginia Polytechnic Institute against two football players after the college failed to punish the assailants.

The ruling struck down a critical provision in the Violence against Women Act that gave victims of gender-based violence the right to bring their attackers to federal court.

In delivering the court’s opinion, the chief justice held that Congress had no authority under the constitution to enact the law.

The law was based on the premise that violence against women interfered with their ability to participate in wage earning and other economic activities that affected the nation’s commerce and thus was a federal, not only a local problem. If it were federal issue, then some cases could be dealt with by federal courts.

The chief justice disagreed and wrote that “gender-motivated crimes of violence are not, in any sense, economic activity.”

He added in this decision that the high court’s rulings during the Reconstruction era–the 1880s–should stand. Those rulings said that Congress could not enact laws to protect individuals from violations of their civil rights unless the state itself was the violator.

Early this year, the case of Jackson vs. Birmingham Board of Education involved a high-school girls’ basketball coach who lost his job after complaining about unequal treatment and funding for his team. The court upheld the coach’s point of view, but Rehnquist joined the dissenting minority opinion, which said “retaliatory conduct is not discrimination on the basis of sex.”

Bush Consulting Senators

Meanwhile, President Bush has been consulting with senators about his nomination to replace O’Connor. He has so far met with four senators–two Democrats and two Republicans–and is expected to wait until the end of the month to announce his decision.

On Wednesday he said he might consider a nominee with no prior experience as a judge. Laura Bush, now on a trip to Africa, has, according to news reports, encouraged him this week to select a woman.

Bush, also according to the Associated Press, was unaware of the hospitalization until it was publicly announced.

Last Friday, rumors circulated that Justice Rehnquist, whose deteriorating health has spurred many speculations about his resignation in the past year, was about to announce his retirement.

Rehnquist, whose wife passed away from ovarian cancer in 1991, was diagnosed with thyroid cancer last year. He was hospitalized Tuesday night with a fever, according to news reports. Rehnquist, has remained noncommittal and non-communicative about his plans.

“That’s for me to know and you to find out,” he told reporters gathered in front of his residence last Friday, who asked him how long he planned to remain on the bench.

–Allison Stevens and Cynthia Cooper contributed to this article.

Kamelia Angelova is an intern with Women’s eNews. Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer; Allison Stevens is Women’s eNews Washington bureau chief.