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From the July/August, 2006 issue of Touchstone

 

Swung Vote by Laura Echevarria

Swung Vote

Sandra Day O’connor: How the First Woman on the Supreme Court Became Its Most Influential Justice
by Joan Biskupic
Ecco (HarperCollins), 2005
(432 pages, $26.95, hardcover)

reviewed by Laura Echevarria

During her confirmation hearings in 1981, Sandra Day O’Connor said that her views on the abortion issue were shaped by “my own upbringing, and my religious training, my background, my sense of family values, and my sense of how I should lead my own life.” Joan Biskupic points out that although an Episcopalian who attended services at the National Cathedral, O’Connor “had been raised outside organized religion.”

Her father told her that he believed in God, though they did not go to church.

“[W]hen you watch the world around us and see how the earth orbits the sun,” he explained, “and how the moon orbits the earth, and see the laws of nature work, you have to believe that some power beyond us has created the universe and has established the way nature works. . . . And we don’t have to go to church to appreciate it. It is all around us. This is our church.”

O’Connor’s Embrace

Despite her extensive research and unprecedented access, Biskupic is unable to pinpoint an exact cause for O’Connor’s gradual, and seemingly arbitrary, embrace of Roe v. Wade. Her support of Roe was not apparent in her early years as a justice.

In 1983, the issue of abortion appeared before her for the first time. In Akron v. Akron Center for Reproductive Health, the law at issue required all first-trimester abortions to be done in a hospital and included a provision for informed consent, meaning that an abortionist was required to provide a woman considering an abortion with extensive information about abortion, including fetal development.

O’Connor dissented from the six-to-three majority, which overturned the law, and appeared to favor state legislatures making decisions regarding abortion regulation. Regarding the trimester arguments in Roe, she argued that

The Roe framework . . . is clearly on a collision course with itself. As the medical risks of various abortion procedures decrease, the point at which the state may regulate for reasons of maternal health is moved further forward to actual childbirth. As medical science becomes better able to provide for the separate existence of the fetus, the point of viability is moved further back toward conception.

Biskupic, currently the Supreme Court reporter for USA Today, notes that O’Connor believed that the states “have a ‘compelling interest in . . . protecting potential human life’ from the moment of conception—not simply from the time of viability, as set forth in Roe v. Wade,” and that “legislatures, with their superior fact-finding capabilities, are certainly better able to make the necessary judgments . . . than are courts.”

But she felt that the guideline for court involvement should hinge on the test of whether a regulation presented an “undue burden” on a woman seeking an abortion, a concept that would prove impossible to define and supportive of the most expansive view of abortion “rights.” At no point did she say that Roe v. Wade should be reversed. Instead, “if a regulation were found to be an ‘undue burden,’ [O’Connor] wrote in her patented language, then it could be subject to strict judicial scrutiny.”

Don’t Push

In 1989, in Webster v. Reproductive Health Services, Biskupic writes that Chief Justice Rehnquist was all for keeping the Missouri regulations that were at issue, thereby reversing Roe and placing the matter back into the state legislatures. Instead, “perhaps knowing he should not push O’Connor too hard” on the issue of overturning Roe, he proposed that the basic holdings of Roe that allowed abortion on demand be changed instead of overturned.

O’Connor was finishing chemotherapy for breast cancer when Webster came before the Court. Her son and his wife had been trying to have a child for three years, and the birth of this long-awaited child was only five months away. With such life-threatening and life-affirming events in her life, even her colleagues on the court were uncertain how she would vote.

In Webster, O’Connor voted to uphold the Missouri regulations, but as the swing vote she sidestepped the larger issue of the constitutionality of Roe and did not sign the Chief Justice’s opinion, which was highly critical of Roe. In a separate opinion, she reasoned that “when the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.”

This fit with her tendency to make narrow rulings—a trait that asserted itself on many issues before the Court, not just abortion. O’Connor, Biskupic notes, “would step to the brink, and then back away. Her opinion in Webster v. Reproductive Health Services was a pivot that would set her in another direction. But that would be clear only when she took her next step.”

In 1992, O’Connor took that “next step” in support of Roe in the opinion jointly crafted with Justices Anthony Kennedy and David Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey. In their opinion, the Court affirmed that a state could place restrictions on abortion after viability, but only if they did not present an “undue burden,” and declared that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

O’Connor’s Court

Supreme Court observers have often referred to the Court under Chief Justice William Rehnquist not as the “Rehnquist Court” but as the “O’Connor Court,” because O’Connor’s penchant for being the swing vote on issues such as abortion controlled its direction. History will likely be kind to her, treating her as a pioneer on the Court both as a woman and as a justice, but the legacy she leaves on abortion is based on the shifting and subjective premise of the “undue burden.”


Laura Echevarria is the former director of media relations for National Right to Life (www.nrlc.org) and is now a freelance writer working on her first book about the Democratic party and moral values. She lives in Virginia with her husband and three children and attends Faith Baptist Church in Fredericksburg.

Letters Welcome: One of the reasons Touchstone exists is to encourage conversation among Christians, so we welcome letters responding to articles or raising matters of interest to our readers. However, because the space is limited, please keep your letters under 400 words. All letters may be edited for space and clarity when necessary. letters@touchstonemag.com

 

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