U.S. Supreme Court Cases: Ayotte & Operation Rescue
Ayotte v. Planned Parenthood of Northern New England, 04-1144 will be argued before the U.S. Supreme Court on November 30, 2005. The case will revisit the standard of scrutiny the Court imposes upon a State’s restriction of access to abortion. Specifically, the question posed is whether the State must include in the restrictive an exception for the mental or physical health of the mother. This exception has been part of constitutional law since the Court’s decision in Planned Parenthood v. Casey (1992) 505 U.S. 833. The State of New Hampshire will argue in Ayotte that the correct standard is whether a pregnant woman can demonstrate that the restriction cannot be valid under any possible set of circumstances. This standard was set in a non-abortion case, United States v. Salerno (1987) 481 U.S. 739.
The statute in question is a “parental notification law” enacted by New Hampshire. The law is very similar to the failed Proposition 73 put before California voters in November 2005. (See earlier posts to this blog). The statute requires 48 hours written notice by a physician to the parents of a minor child seeking an abortion. The statute provides the minor a procedure to seek a court order exempting her from the notice requirement on a showing of her maturity to make an independent decision.
This case will be argued before the author of the Planned Parenthood v. Casey justice: Sandra Day O’Connor, who is sitting pending her replacement (likely by nominee Samuel A. Alito). Also, this will be the first abortion case heard before the Court in five years, and the first abortion case with John G. Roberts, recently appointed and confirmed as presiding justice. If Alito is confirmed before a decision is rendered, it is likely the case will be reargued.
The ramifications of this decision are described by both sides in the dispute as “huge”. You can easily see why: if the Salerno standard is adopted, restrictions are likely to be upheld in the future. If the Salerno standard is rejected conclusively even by the conservative members of the Court, virtually any hypothetical harm to the mental (not even physical) health of the mother will be legal cause to allow abortion. Stated differently, the issue seems to be either a wide open door to abortion on demand, or a partially opened door that cannot be forced open further.
In another abortion case, also to be argued November 30, 2005, Operation Rescue v. National Organization of Women (NOW), NOW is seeking to hold persons who use public means to discourage use of abortion clinics to be guilty of “racketeering” and “extortion” under a federal law intended for organized crime: the federal “RICO” statute. The issue here is whether a law intended primarily to deter criminal organizations will be used to silence the vocal and aggressive tactics of a well known “right to life” group.
2006 will be a pivotal legal year for the future of Roe v. Wade. The likely process, if the court upholds the New Hampshire law, will be a progressive erosion of the “personal autonomy” right created by the justices in the Roe v. Wade decision. In its place will emerge a greater deference to the “reserved” right of the people, through their elected State governments, to determine the content of the “right to life” when that life is pre-natal.
