The last days of the Supreme Court’s last term were unusually dramatic. On June 28, the last day of the term, the Court handed down lengthy rulings striking down a ban on so-called “partial birth” abortion, upholding an abortion clinic access law and upholding the Boy Scouts’ right to exclude gays. Earlier in the term, the Court had struck down the civil rights remedy of the Violence Against Women Act and a provision of the Age Discrimination in Employment Act that permitted state employees to sue their employers in federal court.
With the dust now settled, these cases demonstrate just how deeply divided the Court is on women’s and civil rights. Indeed, all but one of these cases were decided by a narrow 5 to 4 margin. Advocates on both sides are keenly aware that victories are tenuous and that a change in composition of the Court might easily tip the balance one way or another.
In Stenberg v. Carhart, the “partial birth” abortion case, the Court reaffirmed women’s right to reproductive choice. The Court struck down, by a 5 to 4 vote, Nebraska’s law banning “partially delivering vaginally a living unborn child before killing the child and completing delivery.” The Court found the law flawed both for its overbreadth and its lack of an exception for abortions needed to ensure a woman’s health. The Court found the law so broad that it banned even the most common second trimester abortion procedure (dilation and evacuation or D&E). It also reaffirmed that the state cannot endanger a woman’s health when it regulates methods of abortion.
The victory was tempered, however, by Justice O’Connor’s concurring opinion. She wrote separately to point out her view that Nebraska’s law would be constitutional if it were written more narrowly to ban only a specific abortion procedure (dilation and extraction or D&X) and if it contained a health exception.
Although Justice O’Connor’s opinion suggests how the “partial birth” abortion laws–on the books in some 30 states–could be made constitutional, it remains to be seen whether conservatives are willing to rewrite those laws because doing so would detract from their overarching goal of broadly attacking women’s right to choose. For the moment, Justice O’Connor’s opinion signals that women’s right to choose rests on a narrow and fragile majority.
In contrast to Carhart, the Court’s other abortion ruling was a clear victory for women’s rights advocates. In Hill v. Colorado, the Court ruled 6 to 3 to uphold a Colorado law providing for an eight-foot “no approach” zone within 100 feet of health care facilities. The law had been challenged by anti-abortion protesters.
The Court found the law to be an appropriate way for the State of Colorado to protect access to health care facilities. It emphasized the fact that individuals approaching or leaving hospitals and clinics are physically and emotionally vulnerable. In the health care context, overly close, aggressive speech directed at unwilling listeners can constitutionally be regulated, the court said.
The justices were careful to point out that the protesters had ample means to reach willing listeners, given that they could chant, pray, sing, or yell from a distance of eight feet. They could also hand out leaflets or hold signs from a stationary spot within eight feet of patients without violating the law, and patients who wanted to could approach the protesters to accept leaflets.
The Court’s ruling in Hill sends a signal to state and local legislatures around the country that floating zones of safety like Colorado’s “no approach” zone can be used to protect access to abortion. Such laws can be invaluable to law enforcement efforts to safeguard access to reproductive health care.
The other major women’s rights ruling this term, U.S. v. Morrison, was a 5 to 4 decision striking down the civil rights remedy of the Violence Against Women Act. That provision allowed victims of gender-motivated violence to sue their attackers for damages in federal court. The Court’s ruling was a key development in a line of cases addressing the balance of power between the federal government and the states.
The Justices have taken deeply divided positions on the issue of federalism, which has been a focus of the Rehnquist Court in recent years. In striking down the civil rights remedy, the Court held that Congress lacked authority to enact the law under both the Commerce Clause and Section 5 of the Fourteenth Amendment. The Court found the link between gender-motivated crimes of violence and commerce to be attenuated, and also that the civil rights remedy was not a proportional response to state discrimination that would violate the Fourteenth Amendment.
The Court had relied on similar reasoning to rule earlier in the year that Congress lacked the authority to subject state employers to suit in federal court for age discrimination in employment. Ruling by the same 5 to 4 vote, the Court in Kimel v. Florida Board of Regents found that the Age Discrimination in Employment Act was not “appropriate legislation” under Section 5 of the Fourteenth Amendment, and thus Congress had failed to breach state immunity from suit. The Court noted that the law was not enacted to respond to any pattern of age discrimination by the states.
Kimel has broad implications beyond age discrimination. With respect to women’s rights, the Court noted that distinctions based on gender (and race) are subjected to higher scrutiny than age, which puts laws like the Equal Pay Act and the Family Medical and Leave Act on better footing because it would be easier to demonstrate that Congress was responding to a pattern of state discrimination.
Nevertheless, the Court’s reasoning calls into question state employees’ ability to sue under these and a host of other civil rights statutes. These issues are working their way through the lower courts and will eventually reach the high Court. For example, the Court has already agreed to hear a case addressing state employees’ ability to sue under the Americans With Disabilities Act.
Finally, in Boy Scouts of America v. Dale, the Court upheld, by a 5 to 4 vote, the Boy Scouts’ First Amendment right to exclude a gay scoutmaster. The Court’s ruling rested on the assumption that opposition to homosexuality is part of the Boy Scouts’ “expressive message.”
As such, the Court distinguished between this case and a trio of earlier rulings forcing all-male organizations like the Jaycees and Rotary Club to admit women. In the earlier cases, the Court had found that the exclusion of women was not part of the expressive message of the all-male organizations. Dale does not pose a direct threat to women’s rights, but it marked a disappointing setback in the fight to ensure equal rights for gays and shows that discriminatory bias lives on.
It is striking how many of these cases rested on just one Justice’s vote. With the near certainty that Supreme Court vacancies will arise in the next four years, all eyes will be on the next President to make critical appointments affecting a wide range of women’s and civil rights.
Yolanda Wu is a lawyer with the NOW Legal Defense and Education Fund, focusing on economic justice and reproductive rights.