On November 30, the fate of the world hung in the balance.
That, at least, is the impression given by press coverage of the case of Ayotte v. Planned Parenthood of New England, in which the Supreme Court heard oral arguments last Wednesday.
Ayotte concerns a New Hampshire statute requiring a 48-hour waiting period after parental notice had been given before a minor girl can obtain an abortion. To hear abortion advocates describe the case, one would have thought the end of the world was near. The press faithfully echoed, as usual, their claims.
Most Americans, I suspect, do not find a parental notification statute to be radical in any sense. After all, shouldn't parents be informed when their daughter (who is, by definition, living at their home and is unmarried and not an adult) is seeking an abortion? In many cases, the girl has been impregnated by an older man, and he is pressuring her to have an abortion. If her parents are not informed, she is left to his tender mercies.
New Hampshire's statute has provisions for a judicial by-pass, when and if needed. It does not have the “health exception” that the Supreme Court in Stenberg v. Carhart arguably required abortion statutes to include. The simple fact that Ayotte does not concern an abortion statute (which covers “abortion rights” for an adult woman), but, rather, a parental notification statute for a minor girl, serves to decisively distinguish the cases.
The question, of course, is whether this straight-forward understanding of the case will ultimately be reflected in the Supreme Court's opinion. As a member of the Supreme Court bar, I was able to be present in the Court for the oral argument. The Justices' questions seemed to suggest some interesting currents on the Court.
First, it seems Justice Kennedy and Justice Souter have very different understandings of Planned Parenthood v. Casey. In that case, Kennedy, Souter, and O'Connor wrote the decisive “plurality” opinion, in which they upheld the “right” to abortion, while also indicating a state had important interests in protecting unborn human life. In the years since, it has been impossible to find any such interests that the Supreme Court was willing to recognize. However, in Stenberg, Justice Kennedy took issue with the majority, which included Souter, for finding that even a statute banning partial-birth abortion had to contain the notoriously meaningless (and, thus, very broad) “health exception.” Oral argument in Ayotte revealed that the question of whether or not Casey recognized a meaningful right in the public to regulate abortion is very much at issue between the Justices.
Second, it is clear some Justices do not understand how unusual abortion jurisprudence is in America, that is, how it departs from legal standards otherwise applicable. For example, Justice Breyer posed a hypothetical situation: A minor pregnant minor girl appears at a hospital emergency room in the middle of the night. Suppose the delay that would be caused by notifying her parents meant she would suffer “injury” due to high blood pressure. Might a doctor fail to perform an immediate abortion due to fear he would be prosecuted since New Hampshire doesn't have a “health exception” in its parental notification law, Breyer asked.
However, what Breyer seemed not to grasp was this: If a minor girl shows up in an emergency room in the middle of the night complaining of dangerously high blood pressure, the doctor IN EVERY OTHER CASE must do one of two things — either notify the girl's parents, or treat her and seek protection from prosecution under the state's “emergency treatment” statutes. There are no “health exceptions” in these other situations. This is the law that applies in every case; it is not a law that somehow is aimed at abortion. (New Hampshire, like many states, provides that a doctor may not lay hands upon someone when that person is incompetent to give consent unless that conduct is protected under its emergency-treatment statute. This puts the risk exactly where it belongs — on the doctor — and discourages unnecessary medical practices.) A minor is legally incompetent to give legally effective consent in every other situation under the sun. Why should a minor's abortion be treated differently? Justice Breyer's hypothetical should have been thus: If a minor girl who is pregnant shows up in the middle of the night in the emergency room, why should the situation be treated differently solely because she is pregnant? There is no convincing answer that it should be treated differently.
Also, watch the case for the following. The case involves what is called a “facial review, that is,” the Court is asked to hold it unconstitutional before it has ever been applied. The usual standard for such a review is this: The complainer must show that the statute is unconstitutional in all circumstances. The Supreme Court introduced a new standard with abortion — “the undue burden” standard. Under it, the complainer must show that the statute is unconstitutional in a “large fraction” of the cases that would arise under the act. Solicitor General Paul Clement pointed out to the Court that Planned Parenthood conceded in footnote 13 of its own brief that what they were complaining about would only occur in a “tiny fraction” of the cases. Thus, under either the normal standard of review or the special review applicable to at least some abortion cases, the New Hampshire statute should survive the challenge and should be upheld. Let's see if the Supreme Court does so. If not, it will be another example of the Court distorting the law to protect anything and everything connected to the mega-right of abortion.
Bill Saunders is the Senior Fellow and Director of the Family Research Council's Center for Human Life & Bioethics. The views expressed are his and are not meant to represent official institutional views of FRC.
