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Ayotte V. Planned Parenthood Of Northern New England

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Originally posted by The General from The Benjo Blog,

The case before the Supreme Court this term which I'm most interested in is Ayotte v. Planned Parenthood of Northern New England. The case is superficially about a parental notification requirement for minors seeking an abortion. More fundamentally, however, the case has the potential to allow states to erode the right to abortion in a frightening way.

SCOTUSblog has a good (albeit technical) post up on the case. Here's the relevant excerpt:

Perhaps more importantly, the case also raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes. Respondents argue that they should only have to show that the law might endanger the lives or health of some hypothetical women in some hypothetical circumstances; petitioner claims facial challenges should only be allowed if the challenger can show that the law would endanger the lives or health of every pregnant woman, and thus be unconstitutional in every circumstance. Challengers who can only show that a law is dangerous to some women in some circumstances must wait until those circumstances actually arise, and then only have the law declared unconstitutional as applied to them.

I also recently saw an interview with law professor Jack Balkin, who captured this issue eloquently in a less "legally jargonistic" way:

The other issue in
Ayotte
is highly technical, but it turns out it's crucial. It's far more important than the health issue. Here's the idea: Let's suppose you have a state like Missouri or Pennsylvania, which are famous for being opposed to abortion and have passed considerable regulations of abortion over the years. They pass a new statute. The statue contains a whole bunch of different restrictions on abortion. Now, the way it usually works until now is, a plaintiff goes to court and says, "This restriction here will impose an undue burden on a lot of women." And if they convince the court that's so, then the court issues an injunction, and the statutes cannot be applied by anyone. The statute is gone and leaves the playing field where it was before the statute was passed.

But in this case, the Supreme Court is going to consider a different rule, and here's how this rule would work: You go to court, and you say, "This law causes an undue burden on a significant number of women." The court says instead: "Well, as long as there's some women for whom it's constitutional, as long as there are some women for whom the law doesn't violate their rights, the law stays in place. And we will only say that it doesn't apply to you."

That's called an applied challenge. It means the law stays on the books. And it also means that over time, you have to bring a whole series of different plaintiffs in, each of which goes before the court and says, "This law is unconstitutional as to me."

So it greatly increases the costs of bringing abortion litigation, and it greatly impedes the ability of getting rid of unconstitutional statutes. The practical effect is to allow states to pass much more restrictive laws affecting abortion than they ever could before, and it's all through a technical device.

That interview is from the Frontline documentary The Last Abortion Clinic, which I highly recommend. It highlights the insidious regulations that anti-abortionists have been passing in some states. You can watch in online here (Windows Media Player or Realplayer required).

Edited by softwareNerd

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My post from the SCOTUS cases thread:

"While transcripts will be available in a couple weeks, we have better than transcripts this time! I don't know for how long this will be up, but for now C-Span has the entire argument available for listening. Scroll down to the middle of the page. The link is under 'Video/Audio,' 'Recent Programs.' Enjoy!"

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The state law allows for an exception to the 48 hour notification if:

  • the abortion provider certifies that the abortion is necessary to prevent the minor's death and
  • that there is insufficient time to provide the required notice

Seems like the whole case revolves around the first point above and whether some type of non-death health emergency can be worded in without being "abused".

Legislators could easily have written such a clause in. It would not have been the same "leeway" as Roe grants, because I cannot see how "emotional distress" type of "health issues" can be justified as being of such urgency that a 48-hour delay would make a difference. The fact that they did not make such an attempt demonstrates that this law was crafted to test what the SCOTUS would allow.

The judges who are clearly pro or anti abortion will probably vote with their political side. My guess is that the middle-of-roaders will want the state to make some attempt at word-smithing an emergency health clause. Not sure who the middle-of-the-roaders are. Any guesses, Matt?

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Sounds like something that would be fun to look into over winter break.

[Edit] Here's what some other people say:

1. Feminist Majority Foundation

anti-choice: Scalia, Thomas, (Rehnquist)

mixed: Kennedy, Souter, (O'Connor)

pro-choice: Stevens, Ginsburg, Breyer

2. National Right to Life

"Among currently sitting Supreme Court justices, six (including Sandra Day O'Connor) have voted in favor of Roe v. Wade -- that is, in support of the doctrine that abortion must be allowed for any reason until 'viability' . . . and for "health" reasons (broadly defined) even during the final three months of pregnancy. Two justices (Antonin Scalia and Clarence Thomas) have voted to overturn Roe, and one (John Roberts) has not voted on the matter. Justice Anthony Kennedy, although a supporter of Roe, voted in the 2000 Stenberg case to allow Nebraska to ban the partial-birth abortion method."

That's all for now. Hopefully this gives you a start. At this point I won't be able to give you much analysis beyond finding what people say and reporting it. My guess, though, is that if you want to find who the middle of the roaders are, find the one(s) that people on "both sides" don't like.

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