Supreme Court Shows Vulnerability with Close Decisions

by Elizabeth Liu, Legal Intern

During the last term of the 20th century, the Supreme Court made it clear that women's equal rights still need to be guaranteed in our Constitution.

The Supreme Court's ruling that the civil remedy provision of the Violence Against Women Act (VAWA) was unconstitutional is a sharp reminder that the 14th Amendment does not provide a sufficient guarantee of equal protection for women.

Although NOW activists celebrated victories in an abortion rights case, which overturned a state abortion procedures ban, NOW was disappointed that the court ruled in favor of discrimination based on sexual orientation.

The close margin of 5-4 in all three of these cases, coupled with the likelihood that the next president will nominate two, possibly three, Supreme Court justices, indicates that the future of women's rights is at stake in the next presidential election.

In a disheartening loss, the Supreme Court, in Brzonkala v. Morrison, ruled 5-4 that the provision of VAWA that allows victims of gender-based violence to take private legal action in federal courts was unconstitutional. The petitioner in this case was Christy Brzonkala, a winner of NOW's Woman of Courage Award at this summer's National Conference. Despite extensive Congressional findings that violence against women has an enormous impact on interstate commerce, (for example, in restricting battered women's ability to travel and obtain employment), the Court ruled that the provision could not be sustained under the Commerce Clause. The Court also held that the civil rights remedy could not be sustained under the Equal Protection Clause of the Fourteenth Amendment because the Equal Protection Clause applies only to state action. The NOW Legal Defense and Education Fund argued persuasively that the state's failure to investigate and prosecute violence against women was indeed state action, and produced support from 35 states for the VAWA civil remedy but to no avail.

In Boy Scouts of America v. Dale, the Supreme Court disappointed again by ruling that the Boy Scouts could expel an adult Scout leader simply because he is gay. In another 5 to 4 opinion, the court said the Scouts enjoy a constitutionally protected right of "expressive association" and that this right would be undermined if the organization were forced to accept James Dale as an assistant scoutmaster.

Feminists did win two important reproductive rights cases. In Stenberg v. Carhart the Supreme Court, 5 to 4, struck down Nebraska's abortion procedures statute and exposed the deceptive and misleading nature of so-called partial birth abortion bans.

The court ruled that the Nebraska ban was so broad and vague that constitutionally protected abortion procedures performed before viability could also be prohibited under this law. The court also found that the Nebraska ban violated the Supreme Court precedents Roe v. Wade and Planned Parenthood v. Casey by failing to include an exception to preserve the health of the woman. Ultimately, a narrow majority of the Court found that the Nebraska law constituted an undue burden on a woman's constitutional right to an abortion.

Justice O'Connor stated in her concurring opinion in Stenberg v. Carhart that a ban on abortion procedures which only prohibited the dilation and extraction method of abortion and which included an exception to preserve the life and health of the mother would be constitutional. It is likely that some states will craft abortion procedures bans in light of her recommendations in hopes of passing constitutional muster.

In Hill v. Colorado, the Supreme Court ruled 6-3 that a "bubble zone" law was constitutional. At issue was a Colorado law which restricts aggressive, threateningly close approaches by anti-abortion demonstrators at women's clinics. Prior to enactment of the statute, protesters blockaded abortion clinics, physically assaulted women trying to enter the clinics and subjected patients to intimidation and threats.

While these abortion-related rulings are victories for NOW activists, the close votes on these and other cases is cause for alarm. As NOW President Patricia Ireland said, "Five to four is too slim a margin for women's rights. Women's freedom currently hinges on the decision of only one justice."

Of further concern, The Supreme Court may ultimately decide the fate of the "Born Alive Infants Protection Act" (H.R. 4292), introduced in Congress by anti-choice Rep. Charles Canady, R-Fla. This legislation would include in the United States Code's definition of "person," "child," "human being" or "individual" the following: "every infant member of the species homo sapien who is born alive at any stage of development." This bill would effectively blur the line between pre- and post- viability, in an attempt to undermine a woman's constitutional right to abortion while the fetus is in the pre-viability stage. If passed, the bill would grant fetal personhood and limit a woman's right to make complex and private decisions regarding termination of pregnancy.

With most of these important judicial decisions turning on one vote, the next President's appointees to the Supreme Court will have an enormous impact on the direction of women's rights in the 21st Century. NOW activists plan to check candidates records and support those who have strong pro-choice records and who have promised to introduce federal legislation to restore a constitutional civil remedy for victims of gender-based violence. NOW activists are also promoting state statutes to replace the VAWA civil remedy for victims of gender-based violence. Activists may obtain a model law by calling NOW at 202-628-8669 ext.101 or e-mailing a request to govtrel@now.org.

To read the entire text of these and other Supreme Court decisions, connect to http://supct.law.cornell.edu/supct/