Connecticut: Post Casey and White
| Pages | 201 |
| Publication year | 2021 |
68 CBJ 201. CONNECTICUT: POST CASEY AND WHITE
From colonial times to the present, Connecticut has consistently been at the center of controversies related to efforts to limit human reproduction through contraception and abortion. The earliest documented American court proceeding concerning abortion took place in Connecticut in 1746. In 1821, the General Assembly passed the first statute in the United States regulating abortion. Connecticut's complete statutory ban on abortion, enacted in 1860, served as a model for legislation in other states. Connecticut's Anthony Comstock not only won a federal ban on the sale and use of contraceptive devices, but also drove the General Assembly to pass the most stringent birth control law in the nation. The "right to privacy" announced by the United States Supreme Court in Griswold v. Connecticut arose from a challenge to the State's "uncommonly silly" Comstock law.(fn1) In 1990, Connecticut became the first state to statutorily guarantee a woman's right to abortion,(fn2) a guarantee that is broader than the right established in Roe v. Wade.(fn3) Although the statute requires that an abortion be performed prior to the viability of the fetus, the trimester framework of Roe is absent from the Connecticut statute. The woman and her physician, therefore, have discretion in determining the point of viability.(fn4)
Continuing challenges to the right to abortion are as certain as anything in American constitutional law. In Roe, the United States Supreme Court announced that the right to privacy encompasses 'a woman's decision whether or not to terminate her pregnancy.(fn5) Yet, almost immediately, opponents of Roe responded with both frontal attacks to overturn it and with
flanking maneuvers to contain it. In 1976, only a minority of the Supreme Court preferred to allow the states to act "free from the suffocating power of the federal judge, purporting to act in the name of the Constitution.(fn6) Yet, by 1989, the Court, speaking through Chief Justice Rehnquist in Webster v. Reproductive Health Services, plainly invited the states to experiment with strategies for restricting abortions(fn7).
In Planned Parenthood of S.E. Pa. v. Casey,(fn8) the United States Supreme Court upheld amendments to the Pennsylvania abortion statute that restrict abortion by requiring a mandatory waiting period, informed consent counsqling, parental consent with a judicial bypass, and confidential reporting.(fn9) Although the Court in Casey did not, as some expected, seize upon the Pennsylvania statute as the vehicle with which to overrule Roe, the Court's fractured opinion demonstrates, nevertheless, the continuing intensity and divisiveness of the debate as well as the evolution of the legal test governing abortion cases. The undue burden test, preferred by justice O'Connor, has prevailed over the strict scrutiny test of Roe.(fn10) The test now is whether the restriction at issue imposes an undue burden or drastic limitation on the abortion decision rather than merely regulating abortion in a manner that may inhibit abortions to some degree.
With the retirement of justice Byron White, one of those who would overrule Roe, at the end of the 1993 term and his replacement by a President unequivocally supportive of reproductive choice, few expect the demise of Roe. Neither do they expect a respite from the state-based attempts to narrow it.(fn11)
In 1990 Connecticut statutorily affirmed a woman's right to choose abortion. The General Assembly that statutorily granted that right, however, can similarly vote to repeal it. Following such repeal, women would undoubtedly turn to State courts and seek to enforce the right to abortion resting on independent state constitutional grounds. These litigants will encounter, however, a legal history in which the Connecticut Supreme Court has been guided by the actions of the legislature in framing responses to the conflicting interests represented in the controversies over reproductive rights and has not yet held that there exists an independent state constitutional basis for reproductive rights. Numerous resolutions of the issue have been attempted throughout Connecticut's history. As John Hart Ely observed: "Abortion is too much like infanticide on the one hand, and too much like birth control on the other to leave one side comfortable with any answer; and the moral issue it poses is as fiendish as any philosopher's hypothetical."(fn12) If compromise between the absolutes is, nevertheless, the only effective solution, the Constitution State can serve as a model of compromise because of its unusually rich experience of more than 200 years in attempting to deal with the controversy.
This article reviews the application of state constitutional history in a recent Connecticut Supreme Court case and applies that analysis to the abortion controversy. The analysis begins with a review of the text of the Connecticut constitution and contemporaneous documents in an attempt to discern the founders' deliberation, if any, on the issue. Next, a recent application of State constitutional historical analysis in an abortion case is examined. Against this background, this article then reviews Connecticut statutory provisions and case law on abortion from colonial times to the present and concludes finally that Connecticut history has resulted in a compromise position that can serve as a model in the continuing clashes over the issue of abortion.
In State v. Lamme, the Connecticut Supreme Court explained and applied a mode of constitutional analysis in
deciding the novel state constitutional claim raised in the appeal." The Court analyzed the constitutional text, the case law at the time of the adoption of the constitution, and governing principles applied in similar contexts in other states.
The Court looked first to the plain meaning of the constitutional text. (fn13)'[W]e must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state.' ... Unless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution."(fn14) Second, the Court considered the historical antecedents of the constitutional provision. It traced the language in question back to the preamble of Ludlow's Code of 1650, then to its last codification prior to the adoption of the first state constitution, and to the Connecticut Constitution of 1818.(fn15) The Court found that the most significant aspect of the pre-1818 declaration of rights is that it had constitutional overtones even though it was statutory in form."(fn16) Third, the Court reviewed the "available case law ... in the period immediately antedating the adoption of the constitution of 1818 .... [and to the case law in this century."(fn17)
The Court then clearly articulated its approach to deciding cases involving constitutional claims. First, the " 'Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all our citizens."(fn18) In searching for appropriate contemporary interpretations
,
`[w]e have frequently relied upon decisions of the United States Supreme Court interpreting ... the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution. We have also, however, determined in some instances that the protections afforded to citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court'. (fn19)
The Court concluded that "[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution."(fn20) The Court noted, finally, that "governing principles in state constitutional law cases around the country" insured "universal Acceptance" of its approach in interpreting article first, § 9.(fn21) In sum, the Court considered "the text, the history, and the policy" embodied in the constitutional provision in reaching its conclusion.(fn22)
The current text of the Connecticut Constitution refers neither to a woman's right to choose abortion nor even to a right of privacy. Neither did the constitution of 1818. For the pre-1818 era, records of the colony and of the state show no evidence of official action to suggest that the topic of abortion concerned
policy makers.(fn23) Nor do the classic histories of the State provide specific information on the topic.(fn24) There has not yet been uncovered any record which indicates that the framers approached their work in 1818 against a background of public concern about abortion.
The Connecticut Constitution and the Declaration of Rights post-dated their federal counterparts by almost two generations and the histories and motivations behind the documents are distinct. Political leaders in Connecticut regarded the Declaration of Rights as so protective of individual liberties of the citizens of Connecticut as to render the federal Bill of Rights unnecessary.(fn25) In fact, Connecticut finally ratified the Bill of Rights only in 1939, prompted by the sesquicentennial of the federal constitution. Moreover, until the process of incorporating the federal Bill of Rights against the states began in the late nineteenth...
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