Does the Constitution proscribe a parental notification law, on
its face, lacking a medical emergency exception? That’s the
question the United States Supreme Court will consider today when
it hears oral arguments in Ayotte v. Planned Parenthood of Northern New
England.
Two groups that have submitted amicus curiae briefs in the case,
the Center for Reproductive Rights and the Family Research Council
(FRC), previewed the arguments and issues at hand in the
Ayotte case yesterday in a Federalist Society-sponsored
forum at the Pew Research Center in Washington, D.C. They were
represented, respectively, by Nancy Northrup, president of CRR and
a Columbia Law grad, and Bill Saunders, director of the FRC center
for human life and bioethics and a Harvard Law grad.
Unquestioned, Northrup’s arguments are initially compelling from
a perspective that heavily weighs the Court’s precedents in
Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and
Stenberg v. Carhart (2000). Northrup agreed
with Saunders that the constitutionality of parental notification
itself is “not at issue” (though she wouldn’t go so far as Saunders
did to say that the statute is “reasonable”). She alleged that the
New Hampshire legislature ignored “guideposts” on how to write the
law and intentionally excluded an exception for medical emergencies
(in order to test the Supreme Court, she said). This is a necessary
exception, Northrup claimed, because pregnant women frequently
experience medical emergencies that could require immediate
abortion, such as preeclampsia (a potentially fatal condition
involving high blood pressure), placental infection, or uterine
bleeding. The Supreme Court has in the past placed women’s health
at the center of such cases restricting abortion. Thus, in
Northrup’s view, the Bush administration and other amici in the
case are asking for a “radical change.” Some have identified
Ayotte as “a pushback to chip away at the right to
abortion,” Northrup said. In fact, if upheld, it will be “taking an
axe to the trunk of the tree of constitutional protection.”
Saunders defended the New Hampshire statute in legal and
commonsensical terms. He said that Ayotte differs
substantially from previous parental notification cases in that the
Court has never required a health exception in the case of an
unemancipated minor. “This case is not about abortion,” Saunders
said. “It is about whether an unemancipated girl…is going to have
the input of her parents” in a very important decision in her
life.
To extend Northrup’s axe-and-tree analogy, the tree that might
truly fall, to her regret, is the application of facial challenge.
Days before the New Hampshire parental notification statute was to
take effect, the U.S. District Court of New Hampshire declared
unconstitutional and permanently enjoined the statute in its
entirety because it lacked a health exception. Under facial
challenge, courts can rule a statute unconstitutional without
presenting a case that it has harmed or restricted the
constitutional rights of an actual person. Northrup argued this
facial challenge was appropriate because the courts cannot wait
until a woman is “on the brink of disaster,” by which she meant a
health emergency in which an abortion is immediately necessary to
preserve the mother’s health.
In wielding facial challenge against the New Hampshire statute,
the District Court cited Casey’s “undue burden” standard, which
according to the First Circuit Court of Appeals declared abortion
restrictions “facially invalid if ‘in a large fraction of cases
[the regulation] is relevant, it will operate as a substantial
obstacle to a woman’s choice to undergo an abortion.’”
Here’s where the left’s newfound reverence for precedent could
prove to be a chink in its jurisprudential armor. The First Circuit
affirmed the District Court’s use of the Casey standard
for a facial challenge rather than the Court’s standard established
in United States v. Salerno (1987). In
Salerno, the Court ruled that facial challenges are only
successful if they can show that the legislative act in question
would be constitutionally valid under “no set of
circumstances.”
Even though Ayotte is presented as a choice between two
standards of facial challenge, if the Court affirms the First
Circuit’s decision it would carve out a new, even lower burden for
facial challenges. Instead of plaintiffs having to demonstrate that
a statute unduly burdens all women seeking abortions, or even “a
large fraction” of them, an invalid statute would only unduly
burden one hypothetical woman.
Nancy Northrup took this approach yesterday, arguing that the
delay required by the New Hampshire statute, hypothetically, could
permanently damage a girl’s health. During Q&A following the
debate, TAS asked Northrup if she knew of any case in
which another enacted statute, lacking the medical emergency
exception, had effectively harmed the health of a woman seeking an
abortion. Apparently lacking such an example, Northrup evaded the
question and answered that most states have medical emergency
exceptions and that there’s no evidence they’re being abused.
That’s the rub of facial challenges as used against the New
Hampshire law: since they can be used to declare preemptively laws
unconstitutional, they’re relieved of demonstrating actual
harm.
And even if the New Hampshire statute were to take effect,
there’s little to indicate that women would be harmed. Audience
members at the debate wondered if the health exception is a
loophole inviting abuses, a valid point since Roe v.
Wade’s partner case, Doe v. Bolton, widely identified
the factors relevant to a mother’s health as “physical, emotional,
psychological, familial, and the woman’s age.” Unfortunately, at
the District Court level, then-New Hampshire attorney general Peter
Heed did not argue against Planned Parenthood’s
physician-plaintiff’s evidence that the health exception is
medically necessary. While this may be a weak point in the state’s
case, Concerned Women for America and organizations representing
thousands of physicians have thankfully marshaled thorough
counterevidence in an amicus brief showing that a medical emergency
requiring immediate abortion would be incredibly rare, if not
non-existent.
The change in the Court’s composition from Chief Justice
Rehnquist to Chief Justice Roberts will likely not affect the
outcome of Ayotte as Rehnquist had affirmed the
Salerno standard in previous cases and generally voted
pro-life. If the other eight justices stay their respective
courses, this appeal will likely fail. There are two shining hopes:
that the erratic Justice Sandra Day O’Connor realizes the fault of
her position in Stenberg and returns to her definition of
“undue burden” in Casey. Or better yet, Sam Alito is
confirmed as justice before the Court renders its decision in this
case and it is reheard.
C-Span will
stream oral arguments in Ayotte tomorrow at 12:15 p.m. EST
(a slight delay from 11 a.m. to 12 p.m. slot for the case).
TAS plans to follow it at AmSpecBlog. And the name
of the attorney general of New Hampshire, Kelly A. Ayotte, is
pronounced “a-yacht.”
