That’s what Slate senior editor Dahlia Lithwick accuses the Supreme Court of in hearing arguments in Ayotte v. Planned Parenthood yesterday.
Just to be clear about what’s happening today: No one is talking about reversing Roe v. Wade. But I can’t count five people willing to apply the holding in Casey to these facts either. Instead most of the court is doing constitutional loop-the-loops to try to save the New Hampshire law, even though they are almost all bothered by the lack of a health exception. Mostly they try to graft a health exception back on, whether or not the New Hampshire legislators wished to have one. The larger point is that New Hampshire nipped and tucked the so-called right to an abortion when it passed this law, and most of the court thinks that is just fine.
This morning we learned that soon-to-be Justice Samuel Alito embraced this nip-tuck strategy years ago. No need to wait for Roe to be overturned. Just eat away at it, one small nibble at a time.
Ah, the Roe-is-inviolate line in the sand. It’s easier than arguing that the Court is substantially diminishing Roe (which she concedes is impossible to demonstrate in the first sentence of the paragraph above). So, a la NOW, NARAL, and Planned Parenthood, any restriction of abortion is a lurking threat to Roe. Ms. Lithwick won’t actually defend Roe because it’s indefensible as legal reasoning, which even many pro-abortion legal eagles acknowledge.
So Roe aside, let’s get to Ayotte and Casey. While Lithwick discusses that the dominant standard in American jurisprudence for declaring an entire statute invalid on its face is found in Salerno, she fails to mention that Casey loosened those standards. So if Lithwick were applying Casey as a whole to this case, she would argue that it should be tossed out — because New Hampshire statute doesn’t meet the threshold of being constitutionally invalid “in a large fraction of cases.” (This is explained in fuller detail here.) For the Court to affirm the First Circuit’s judgment invalidating the entire N.H. statute, it must reject both Salerno and Casey.
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