Abortion ruling may lead to reappraisal of Justice Sandra Day O'Connor
Just beneath the surface of Friday’s Supreme Court ruling toppling federal abortion rights is a subcurrent centered on former Justice Sandra Day O’Connor.
There is the obvious: O’Connor wrote the 1992 opinion that preserved abortion rights for another 30 years, but put them on a different legal footing.
There is the ironic: That 1992 decision shredded the legal reasoning involving Justice Samuel Alito, the man who just erased hers.
And there is the ponderous: What if O’Connor had not effectively handed the presidency to Republican George W. Bush in 2000? What if she had not retired in 2005, giving Bush the chance to replace her with Alito?
Newsweek reporter Evan Thomas, who wrote “First,” O’Connor’s authorized biography, said the new ruling certainly underscores the differences between her and Alito.
“Alito has obviously got some anger in him and a chip on his shoulder, and it shows,” Thomas said. “He’s almost defiant in his opinion. And you can’t help but think of Justice O’Connor … continuing to look for a middle way to keep the right to abortion alive but allow the states to limit it.”
Friday’s ruling seems destined to ripple across generations to come. It could also be cause for a reappraisal of O’Connor, the Arizona ranch girl and former state lawmaker who in 1981 became the first woman on the Supreme Court.
At a minimum, it brings into clearer focus the legal and stylistic differences between her and Alito.
“Justice O’Connor was thrilled with the appointment of (Chief Justice John) Roberts and very disappointed with the appointment of Justice Alito,” Thomas said. “Justice O’Connor was quite careful not to be critical of people publicly, but she didn’t do a very good job of hiding her apprehensions about Justice Alito.”
She believed, Thomas said, that Alito would undo the signature pieces of her work on the Supreme Court. The biggest was on abortion rights, and the other is on affirmative action.
“She said, ‘You know, the court’s going to undo what I did,’” he said. “Sure enough, that happened. It took a while, but it happened, and it’s going to happen again next year on affirmative action.”
The latest ruling affects O’Connor’s legacy, said Linda Hirshman, author of “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.”
“The Republican Party that produced Sandra Day O’Connor disappeared almost exactly at the same moment that they put her on the court,” Hirshman said.
The next justice on the court, for example, was Antonin Scalia, a conservative ideologue, and the court under Republicans has moved further right ever since, she said.
“Her mistake was that she, the great politico, the elected official on the court, the astute politician who could always make friends with everyone, missed entirely what was happening on the political scene, and completely missed understanding that her party had become an authoritarian, a sectarian, religious-driven, race-driven force," Hirshman said.
The latest abortion ruling, which will be known as the Dobbs case in Supreme Court parlance, held there is no federal right to an abortion in the Constitution. That overturned the right to an abortion established in the 1973 Roe v. Wade case, which was rooted in constitutional privacy protections.
The biggest case in the intervening 49 years was the 1992 case known as Casey in which O’Connor wrote the main opinion for a deeply fractured court.
That case did away with the trimester-based view of pregnancy outlined in Roe that ensured women could obtain abortions if they sought them early enough.
The Casey opinion held that states could impose restrictions on abortion rights, so long as they didn’t pose an “undue burden.”
It overturned a federal appeals court ruling joined by Alito on a Pennsylvania law that, among other things, required women to get their husband’s permission to get an abortion.
O’Connor rejected Alito’s lower-court opinion in what she described as an outdated view of women’s rights.
“A state may not give to a man the kind of dominion over his wife that parents exercise over their children,” her opinion read. Pennsylvania’s law was “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.”
For Kathryn Kolbert, the lawyer who won Casey and co-founder of the Center for Reproductive Rights, Friday was a bitter, foreseeable loss.
“It’s what I consider one of the most radical decisions we’ve seen in the last century, if perhaps ever, because the court, for the first time in history, removed constitutional protections that had been deemed fundamental.”
In 1992, Kolbert expected to lose at the high court but found a tolerable ruling instead.
“For 30 years, it preserved legal abortion in every state in the nation,” Kolbert said. “On the other hand, it permitted additional restrictions. That meant that many women, particularly those who are poor and who live in rural areas and who are young, the people who are least able to overcome state restrictions, were negatively impacted. … I think it could have done even more than it did do to preserve the liberties of women across the country.”
O'Connor "recognized that women come in all shapes and sizes and make decisions for a whole range of reasons," Kolbert said. "Some live in abusive relationships and have difficulties with their families or decide they can’t have kids right now because of their career, because of their financial circumstances. What O’Connor recognized is that the individual has to make those judgments about their lives.”
Hirshman is less charitable.
“Casey was a lawless, unprincipled, unstable decision,” Hirshman said, adding that it adopted a restrictive legal outlook pressed by the Reagan administration in lesser-known abortion battles.
Besides effectively leaving it to herself to decide what an undue burden was, O’Connor also handed a changing Republican Party the right to replace her with someone more in line with its increasingly conservative outlook, Hirshman said.
For 30 years since Casey, other cases have sought to set new boundaries on what exactly constitutes the undue burden O’Connor recognized.
That stood until the Dobbs ruling overturned both Roe and Casey. Alito’s majority opinion cited Roe 108 times. It cited Casey 77 times, often as a sledgehammer to knock down Roe.
“Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin,” Alito's opinion says.
“The three Justices who authored the controlling opinion ‘call[ed] the contending sides of a national controversy to end their national division’ by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion.
“As has become increasingly apparent in the intervening years, Casey did not achieve that goal.”
“Justice Alito used Casey against her,” Hirshman said. “He said, ‘Look, you changed your mind in 1992, actually, and rejected the trimester structure of Roe then. So it wasn’t such a long period of settled law after all.”
“You can’t say it was meaningless, but in terms of a legacy, (Casey) was the wrong strategy to try to hold the center. The center could not hold,” Hirshman said.
O’Connor helped postpone a political reckoning over the issue that might have preserved the principles of Roe then more easily than today, she said.
Kolbert believes supporters of abortion rights were complacent because of their legal victories.
“The big mistake we made, and I will say that I’ve been saying this for a long time, was that we depended too much on the courts," she said. "We, unlike our opponents, just ignore the political process. We need to stop doing that. We need to quit hitting our heads against that marble staircase and begin to understand that politics will control this issue.”
Hirshman, Kolbert and Thomas agreed that Casey could not have prevented the Dobbs ruling because of the justices now sitting on the court. For some, that could raise the what-if question of Bush v. Gore, the ruling O’Connor joined that effectively handed the presidency to Bush in 2000.
Thomas called Bush comparatively moderate on abortion by contemporary standards. But he acknowledged Bush put Alito on the court.
“It should make us appreciate her approach to the law, which was very sensitive to precedent ... and the Supreme Court is not really the last word," he said. "She liked to say it’s part of a conversation between the branches of government.”
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