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."
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