Wednesday, November 30, 2005

Ayotte v. Planned Parenthood of Northern New England

This parental notification case concerns the question whether states can make laws on abortion which ignore the pregnant woman's health. Specifically:

The substantive issue first: The Supreme Court has ruled that states can require that doctors notify a pregnant teenager's parent before performing an abortion. But the court has also made it clear, beginning with its 1973 Roe v. Wade decision, that any restrictions on abortion rights must contain exceptions to protect a woman's health and life. This is a core principle that New Hampshire lawmakers ignored in 2003 when they passed a parental notification law that omitted any exception for medical problems that were not life-threatening.

Quite predictably, the law was challenged. Two days before it was to take effect, a federal trial judge in New Hampshire issued an injunction barring its enforcement. Neither the trial judge nor the reviewing appellate court had any trouble dismissing the claim by New Hampshire's attorney general, Kelly Ayotte, that the state had covered the problem of the health exception by giving a pregnant minor the option of seeking permission for an abortion from a judge. Neither should the justices. In an emergency, as Planned Parenthood of Northern New England notes in its brief, a young woman needs to get to a hospital, not a courthouse.

The implications of the procedural issue are even more serious. With support from the Justice Department, Ms. Ayotte is asking the court to end, or severely constrict, the longstanding power of federal courts to do what the trial judge in New Hampshire did: bar the enforcement of potentially dangerous and unconstitutional abortion restrictions before they go into effect and injure people. Though it is obscured by technical-sounding legalese, this issue concerns what would essentially be a radical court-stripping plan, one that would leave state legislatures free to ignore the Supreme Court's parameters for abortion regulation until a minor, already unconstitutionally endangered and in the midst of a medical crisis, somehow made it to court to challenge the law.

In short, this is about states' rights and the lack of rights for women, pretty much.

And how is the new Chief Justice doing? Well, he is showing his true colors:

New Chief Justice John Roberts seemed sympathetic to the state, but other justices said they were troubled that the law does not make an exception for minors who have a medical emergency.

At the same time, the court did not appear satisfied with an appeals court ruling that struck down the law, one of dozens around the country that require parental involvement when a teen seeks an abortion.

Although the case does not challenge the 1973 Roe v. Wade ruling that said abortion is a fundamental constitutional right, the stakes are still significant and could signal where the high court is headed under Roberts and after the retirement of Justice Sandra Day O'Connor.

This case will not overturn Roe. I suspect that the process of dismantling Roe will be a slow strip-tease, to keep the radical clerics at a fever pitch and their constituency voting for the Republican party.