Politics, Courts and Reproduction

It's a gripping drama: Will the judge rise to the occasion? Will he be independent of the powers that appointed him? Will he do the expedient thing or the right thing? Will the judge, in short, be a judge? The audience realizes that the core values of the nation--equality, justice and liberty for the vulnerable minority--depend on the judge's independence.

Let's hope that California voters take that message--that our most cherished freedoms are meaningful only if enforced by an independent judiciary--into the voting booth in November. The current concerted campaign to unseat two California Supreme Court Justices for voting to uphold young women's reproductive rights is a threat to everyone's freedom.

In August, 1997, the Court struck down a never-enforced California law requiring unmarried teenagers under 18 to obtain permission from a parent or a court for an abortion. American Academy of Pediatrics v. Lungren , 16 Cal. 4th 307 (1997). Since the public doesn't know what the Court knew--that the extensive trial record showed that, in other states, 15 years of experience with this benign-sounding law had a devastating impact on young women's health--the law may have been popular. The decision, enforcing California's express, fundamental right of privacy, may have been unpopular.

But if judges are subject to a popularity contest--if their decisions safeguarding unpopular rights lead to people throwing them off the bench--none of our freedoms are secure. An assault on judges for unpopular decisions is, ultimately, an assault on the Constitution. The Constitution protects fundamental minority rights from the tyranny of the majority. When judges enforce those rights, their actions are often by definition unpopular. But that is their job. Without courageous judges, we would not enjoy important liberties today.

Take, for example, the freedom that has led to the targeting of Chief Justice George and Associate Justice Ming Chin--the right to decide whether to become a parent. Consider America's history of restricting reproductive freedom.

• In Connecticut, a thirty-year campaign to repeal a state law banning birth control even for married couples was unsuccessful. Finally, in 1965, the United States Supreme Court ruled that the Constitution's right to privacy prevented the government from dictating marital intimacy. Griswold v. Connecticut, 318 U.S. 479 (1965).

• By 1973, despite thousands of women's deaths from back-alley abortions, which had resulted in a decade-long campaign led by doctors and clergy to decriminalize abortion, virtually every state had restrictive abortion laws. The Supreme Court's landmark decision that the government cannot force a pregnant woman to bear a child heralded a new era of women's health and autonomy. Roe v. Wade, 410 U.S. 113 (1973).

• In California, the Legislature eliminated most funding for abortion from the Medi-Cal program, after the state Supreme Court had ruled that the state could not manipulate poor women's reproductive choices by funding childbirth but not abortion. Committee to Defend Reproductive Rights v. Myers , 20 Cal. 3d 252 (1981). The Legislature, nine years in a row, passed budgets with these unconstitutional restrictions. Thousands of indigent women and teenagers would have been denied reproductive health care had the courts not intervened year after year to enforce the Constitution.

When the issue is reproduction, the legislative process displays an unusual rigidity. Abortion and birth control involve essentially theological questions involving the commencement of human life. Since these are deeply felt matters of faith, the necessary elements of lawmaking--reason, debate, analysis, persuasion and compromise--break down. The genius of the American constitutional system of separating church and state is the recognition that the tools of democratic government cannot resolve matters of faith. Faced with reproductive laws which frequently do not even reflect the views of the majority (as in Connecticut), far less protect the rights of the minority, the courts must, and have, stepped in to protect childbearing decisions.

This lesson is not lost on the opponents of reproductive freedom. On the federal level, the Republican Party platform calls for the appointment only of judges who oppose abortion. Twelve years of appointments to the United States Supreme Court under a litmus test of opposition to Roe v. Wade brought this country to the brink of losing federal constitutional protection for abortion altogether in 1992. Planned Parenthood of Southeast Pa. v. Casey, 505 U.S. 833 (1992). Fortunately, three Justices of the Supreme Court refused to refused to overturn Roe when urged to do so by the administration. They refused to do the bidding of the Presidents who appointed them. Like the judge in Amistad, they knew why those in power had placed them on the case, and what was expected of them. And like the judge in Amistad, they knew that the consequences for real people--in this case, American women--would be deadly if they did the administration's bidding.

Now, in California, two Justices of the state Supreme Court are threatened with ouster for protecting reproductive freedom. Like the judge in Amistad, they knew that their decision would cause a political firestorm. The anti-choice activists spearheading the campaign were hardly subtle. The week before the Court heard argument in the minors' abortion case, anti-choice organizations held a press conference, complete with leaflets entitled "The Madness of King George," to announce that they would oppose the confirmation of Chief Justice George because he had voted to strike down the statute and to reconsider the case in 1996. The promise of an ouster campaign communicated a threat to other Justices who, facing a confirmation election in November, 1998, might cast their votes for minors' reproductive freedom.

The day the American Academy of Pediatrics v. Lungren decision was released, the threat was fulfilled, as Associate Justice Ming Chin was also targeted for defeat for joining the majority opinion that the restrictive abortion law violated the right to privacy. Chief Justice George, in a rare interview printed the following day, stated that he had assigned the majority opinion to himself, knowing that he would bear the brunt of the firestorm to come. But he realized that serving as a Supreme Court judge would not be worthwhile if it forced him to look over his shoulder before making important decisions.

So, like the judge in Amistad, the California Supreme Court Justices were faced with a choice between doing the expedient thing or doing the right thing in deciding the abortion case. The expedient thing would have been to allow the state to enforce the law restricting teenagers' access to abortion. And, as in Amistad, the expedient decision would make the Justices' lives easier at the expense of vulnerable people who do not even have representation in the Legislature--in this case, pregnant teenagers from unhappy homes. And, as in Amistad, the consequences of the expedient ruling would be harmful.

It is now a year after the Supreme Court struck down the law requiring teenagers to obtain parental or judicial consent for abortion. Had the Court upheld it, we would now see in California what we have seen in states with mandatory notification or consent laws. Pregnant teenagers from violent and dysfunctional families, who cannot confide in their parents, are faced with a variety of frightening options. Some board buses to travel alone to other states. Some navigate through a stressful, humiliating court process; the delay of going to court forces them to obtain later abortions, which more complicated and more dangerous. Some have babies before they are prepared for parenthood. Some turn in desperation to self-induced or illegal abortions. Some end up in emergency rooms. Some die.

So the Justices did the right thing, not the expedient thing, in striking down the California law preventing teenagers from choosing abortion. Their decision affirms the conclusion of every lower court to review the statute. It follows 20 years of California constitutional precedent. And it continues a long, proud tradition of judicial decisions that protect reproductive freedom. Without this tradition, American women's childbearing decisions would be subject to the whims of hostile legislative majorities.

But even more than women's reproductive freedom is at stake. Every unpopular decision--preventing the government from dictating how we express ourselves, what religion we follow, whom we live with--can trigger a similar effort to punish the judges who made it. Everyone's freedom depends on an independent judiciary. This November, we should demonstrate that we understand this basic principle.