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Ayotte v. Planned Parenthood:
The Supreme Court handed down its opinion in Ayotte v. Planned Parenthood this morning. The unanimous decision by Justice O'Connor rests on a narrow procedural point about remedies: the Court vacated the First Circuit's injunction blocking the use of New Hampshires's parental notification law, and instructed lower courts to try crafting a narrower injunction. The Court's opinion doesn't provide much fodder for the Alito battles, although presumably that won't stop people from trying.
Just an Observer:
1.18.2006 12:22pm
SimonD (www):
Isn't the practical effect of this ruling somewhat more expansive than it might appear at first blush? Hitherto, as I understand it, states could enact laws regulating abortion in some manner, but those statutes would be challenged in court the instant they took effect, by groups like Planned Parenthood, enjoined from enforcement in their entirety for the duration of the ensuing process in the Courts, and ultimately, found unconstitional in toto. Today's ruling, it seems to me, changes the calculus: courts are surely now far less likely to enjoin the enforcement of a statute if the presumption is that it should be found unconstitutional only as applied and in relevant part.

In other words - doesn't this rather substantially change the environment in which states may enact regulations of abortion, from one in which such actions are mere lip service which will never be enforced, to one in which a state may make and apply reasonable regulations on abortion, even while court procedings are ongoing?
1.18.2006 1:31pm
SimonD (www):
And, for that matter, doesn't this ruling pre-empt certain challenges, in that it seems to explicitly condone parental notification laws:
States unquestionably
have the right to require parental involvement when a minor considers terminating her pregnancy, because
of their "strong and legitimate interest in the welfare
of [their] young citizens, whose immaturity, inexperience,
and lack of judgment may sometimes impair their ability to exercise their rights wisely."
(Slip. op. at 4, quoting in Hodgson v. Minnesota)
1.18.2006 1:35pm
DJ (mail):
Is it just me, or isn't this a pretty important departure for the Court? I've watched the justices struggle over the last several terms as the Court weans itself from its knee-jerk instinct to facially invalidate unconstitutional statutes. I haven't seen much discussion of this, but the 2004 Sabri opinion (challenging a federal statute on commerce clause grounds) included an interesting aside noting that facial constitutional challenges are really and truly disfavored--and are typically allowed only in a few substantive areas including, interestingly, abortion. (This led Justice Kennedy to seperately protest that Lopez and Morrison were themselves facial challenges of laws under the commerce clause).

Now, as I read Ayotte, we're seeing the court resist facial invalidation of abortion laws and endorsing more narrow invalidations of specific applications of the law. No more Caseys or Stenbergs?

Maybe I'm wrong here, but could Sabri and now Ayotte herald the age of a new more "modest" Supreme Court?
1.18.2006 1:41pm
DJ (mail):
I guess it's not just me.
1.18.2006 1:42pm
Mr Diablo:
My only concern with moving away from facial invalidations is the expansion of a Supreme Court line-item veto power -- which, to me, seems like the very essence of legislating from the bench.

It's not like legislatures will not come back with a minimally tweaked version nine times out of ten -- just look at the Congress and anti-pornography efforts during the last ten years.

That said, it is a welcome change for abortion laws, although I wonder if anti-choice people really want to have things struck down partially. It would seem to dilute their rallying cry if they kept winning things in-part. Hard to get your membership as angry and you begin to risk alienation of moderates through constant bombardment.
1.18.2006 1:56pm
Scott W. Somerville (mail) (www):
You can feel a shift in the wind on the Court, and it should have make an important and immediate difference in the lower courts. The First Circuit was using the same old sledgehammer that the Supremes have been wielding for years... but the time for that "blunt instrument" approach to abortion cases is over.
1.18.2006 2:05pm
KeithK (mail):
While I think this is a very reasonable result for abortion cases, I wonder whether this could encourage some state legislatures to try to push the envelope a bit. If a law that oversteps the judicially imposed limits will only have the relevant portions stripped out (ruled unenforceable) there may be less incentive to try to accurately match these limits when writing the law.

The ruling clearly does endorse parental notification laws. Good.
1.18.2006 2:12pm
SimonD (www):
Now, as I read Ayotte, we're seeing the court resist facial invalidation of abortion laws and endorsing more narrow invalidations of specific applications of the law. No more Caseys or Stenbergs? Maybe I'm wrong here, but could Sabri and now Ayotte herald the age of a new more "modest" Supreme Court?
Well, the Court does make a point that it's open to question whether the legislature intended portions of the statute to be severable, but that point seems specious to me - the relevant questions are, are the questioned parts of the statute severable, without rendering the statute absurd, and if not, should a court just strike down the unconstitutional parts anyway and let the legislature clean up the mess, or strike down the entire act and let the legislature start from scratch?

Doesn't this rather go to the more general question of how a court should behave when it determines part of a statute to be at fault?
1.18.2006 2:20pm
Just an Observer:
Notably, the court stopped short of requiring an as-applied challenge (following Salerno) rather than a facial challenge. To do so would have been a major victory for abortion foes, and never would have commanded a unanimous vote. While that issue was supposed to be one of the questions presented in the case, the court ducked it.

Rather, the court addressed the very narrow matter of what remedy courts should apply if an abortion regulation is found to be flawed. The court did not hold that a facial challenge was not possible, only that the remedy should be more narrowly focused than striking down the whole law.

The hard part -- deciding whether a narrow injunction could be actually be crafted without violating the state legislature's intent, leaving open the possibility that the law still could be struck down if the answer to that question is no -- was thrown back to the lower courts.

On balance, I think, the procedural change is an incremental victory for the pro-life side.

The other question presented, the issue of a health exception, was also resolved by a narrow compromise that focused on medical-emergency cases within the context of parental notification. While this is not the sweeping "health" exception sought by the pro-choice forces, the pro-life side wanted no health provision at all.

No one from either side can claim any major victory. That will not happen anytime soon in any abortion case that is resolved unanimously.

BTW, the fact that the court upheld parental notice itself is not news. The court had done so years ago.
1.18.2006 2:23pm
af -- other one:
"The Court's opinion doesn't provide much fodder for the Alito battles"

Of course, if Alito had written this opinion, it would soon appear front and center in attack ads pointing out his reversal of a huge abortion rights victory.
1.18.2006 2:39pm
SimonD (www):
The ruling clearly does endorse parental notification laws. Good.
To be honest, I never understood why parental notification laws are considered as having anything whatsoever to do with abortion. My son's school can't give him as much as a tylenol without obtaining our consent, yet a child can undergo a surgical procedure without the parents even being notified?

It seems me that this isn't about abortion. Without at very least notification, and really, consent, no minor should be able to undergo any kind of medical procedure, period. To fail to require consent, I think, is an invasion of parental responsibility, but to fail to require notification is actively reckless; minors have died after having an abortion because the parents didn't know what the child had done, and therefore didn't think to take the child to the hospital when they complained of feeling ill.
1.18.2006 2:42pm
Marcus1 (mail) (www):

"States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their "strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience,and lack of judgment may sometimes impair their ability to exercise their rights wisely."


This is exactly what I disagree with. Requiring counseling, I can see. Or requiring consultation with either a parent or an independent counselor, I can see. But requiring a girl to talk with her parents, when she refuses on her own? I think it's just far too blunt an approach. That it doesn't even allow consideration of why a girl might not want to do this, and that it doesn't provide her any other options, both seem to me to be huge and glaring oversights.
1.18.2006 2:43pm
SimonD (www):
BTW, the fact that the court upheld parental notice itself is not news. The court had done so years ago.
In which case? I didn't know that.
1.18.2006 2:44pm
SimonD (www):
Marcus-
Do you apply that logic to all medical procedures, or just some?

It seems to me that parents are responsible for the wellbeing of their child; they cannot effectively do that when the child can go behind their backs to obtain a potentially dangerous and certainly momentous medical procedure, and to me, it doesn't matter what what procedure is. An abortion or a boob job, it makes zero difference, in my view: the parents have at least a right to know, and in my view, a right to consent or deny consent.
1.18.2006 2:47pm
Just an Observer:
SimonD,

Parental-notice requirements for minors were upheld in Planned Parenthood v. Casey in 1992.

The narrow issue in Ayotte was whether a health exception is required.
1.18.2006 2:51pm
SimonD (www):
JaO- *gulp* I guess I'd better go back and read that case more carefully...That completely escaped me.
1.18.2006 2:56pm
Marcus1 (mail) (www):
SimonD,

While I relate to your point to an extent, I think the reason this is about abortion is that there is a real threat that these laws will make it impossible for many young women to get abortions. Parents who want to are able to exert extraordinary influence over their children. The problem with that is that having a child isn't anything like a passing illness. Rather, it is a decision that will completely change the rest of a young woman's life.

Of course, you could say this is exactly why consultation is so important. But it is also exactly why the risk of these laws is so great. We don't, incidentally, require any girl who becomes pregnant to consult with her parents whether an abortion is necessary. It is only if the young woman wants an abortion, and thus needs a doctor, that some states want to intervene. The idea that a young person who wants to undergo surgery should have counseling is a good idea, but requiring that they talk to their parents, without exception, strikes me as excessively blunt. It is an undue burden on any woman's fundamental right to make her own decisions about life changing events concerning her own body.
1.18.2006 2:58pm
Marcus1 (mail) (www):
SimonD,

>Do you apply that logic to all medical procedures, or just some?<

I just saw this, but I think I addressed it. Most procedures don't have the long term implications of having a child. So generally I think involving the parents is a good idea, but I have a problem with the legislature stepping in and mandating it just in all abortion cases.

I can't say I'm totally sure though. I mean, I am certain I would never pass a law like this. I can't pretend to be an expert as to the extent of the actual harm or benefits it produces, though. Or, for that matter, that I would actually call it unconstitutional.
1.18.2006 3:05pm
SimonD (www):
Parents who want to are able to exert extraordinary influence over their children. The problem with that is that having a child isn't anything like a passing illness.
I think that's a fair point, and obviously I understand the anxiety for those who are pro-choice that a parent who is pro-life might be unwilling to consent to an abortion (or, for that matter, the slightly less probable but even stronger concern of an adverse parental reaction to learning their child is sexually active). However, while I certainly agree that having a child is probably far further reaching medical process than treating an illness, surely you must concede that abortion - like any surgical procedure - inherently involves some risk of complications.

A friend of mine had their first colonoscopy last year (none of us are getting any younger, are we...LOL). She was in some discomfort for the rest of the day, as you'd expect, and ultimately ended up having what seemed like serious stomach cramps. Of course, serious stomach cramps are one thing in normal circumstances, but quite another hours after a colonoscopy: it could well be the first indicia of a perforated bowel, which means, go directly to the emergency room, do not pass go, do not collect $200. Needless to say, she and her husband went to the emergency room.

So what troubles me, and the point of this little story is, imagine our mythical fifteen year old heroine Bethany goes out and gets herself an abortion. Later that day, she feels tired and a little unwell, and tells her parents this information. Needless to say, though, if she was comfortable telling her parents she was going to get an abortion, she'd probably have done so before she got the procedure, so she sure isn't keen to do so now. Without that information, how can a responsible parent possibly justify taking the child to the emergency room presented only with the information that the child feels unwell and a little tired? The fact is, if you know a person has just had a surgical procedure, you are far more likely to treat such signs as potential indications of complications. But Bethany's parents do not know about the abortion, while our heroine could be bleeding out for all they know.

I don't mean to present an alarmist situation, but surely you can understand that any surgical procedure comes with risk, and how one reacts to information about a person's health in the aftermath of surgery is very different to how one normally reacts to the same information. Well intentioned or not, it is reckless endangerment of the child's life and health - not to mention a complete abrogation of parental sovereignty - to fail to provide the child's primary parent or guardian with notification of the procedure.
1.18.2006 3:48pm
Houston Lawyer:
While your 14-year old is going to get an abortion, can she legally drive a car there without a license? Can she, as a minor, contractually obligate herself to pay the fee to the abortionist? We place a lot of restrictions on the rights of minors, usually for their own good.
1.18.2006 5:40pm
JosephSlater (mail):
Of course the Supreme Court has never found a constitutional right to get a driver's license or to take Tylenol, so it is a bit different.
1.18.2006 5:43pm
ReaderY:
Perhaps the most remarkable thing about the opinion is how it characterized existing precedent. The following stands out in particular for what such precedent, in a more conservative world, could be said to stand for:

"Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access toabortions that are " 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother.' " Casey, 505 U. S., at 879 (plurality opinion) (quot-ing Roe, 410 U. S., at 164--165); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 768--769 (1986); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482--486 (1983) (opinion of Powell, J.); Planned Parenthood of Cen-tral Mo. v. Danforth, 428 U. S. 52, 79 (1976)."

All these precedents stand for the proposition that a state may not restrict access to abortions that are "necessary to the life and health of the mother?" Remarkable!

What's astonishing about this opinion is not merely that it was designed so that it could stand even if Roe v. Wade were overturn. It's that it actually articulates and forecasts, for the first time, the new standard that will be put in place should that overturning occur.

Priceless!
1.18.2006 5:49pm
cbi:
Is there a judicial by-pass for those minors who have good reason for not wanting to inform the parents? If so, doesn't that resolve the quandry for those girls with reason to fear telling their parents? If not, wouldn't a by-pass clause solve the problem?
1.18.2006 6:29pm
Just an Observer:
cbi,

Yes, the New Hampshire law includes a judicial bypass provision. But plaintiffs argued that was not sufficient in the case of medical emergencies.

In oral arguments, the court explored a rather strained hypothetical involving a 2 am visit to a hospital emergency room, stipulating that a judge could not be reached at that moment. Scalia was incredulous.

Of course, few if any abortions on minors are performed at 2 am in hospital emergency rooms, and everyone knows that. But the justices were concerned about covering the extreme hypothetical case.

Today's compromise is focused so narrowly on actual medical emergencies that even the conservative justices were willing to sign on. That is far from the open-ended health exception that Planned Parenthood was seeking.
1.18.2006 6:50pm
jrose:
Observer,

The Court held, 'a State may not restrict access to abortions that are "necessary, in appropriate medical judgment for the preservation of the life or health of the mother"' (internal quotes from Casey).

While you are correct the ruling only held that the rare emergency case was implicated by the health exception in this circumstance, I am surprised the conservatives signed on to the broader finding of Casey. Does this imply these justices will have to find a way to interpret "necessary" and "appropriate" to uphold abortion restrictions, rather than reversing Casey?
1.18.2006 7:26pm
Just an Observer:
jrose,

The subtle language of the ruling only noted that the precedents exist, which is a tautological fact, without substantively reaffirming their content. I think that is what enabled the conservatives to sign on to the narrow compromise.

Scalia is still free, in any future context, to renew his insistance that Casey should be overturned.
1.18.2006 7:38pm
jrose:
Observer,

If the part I quoted were dicta, I see your point. But IMO, it is weak to argue that reiterating the established precedent in the finding - as an explicit basis for the finding - does not reaffirm the precedent.
1.18.2006 7:50pm
Broncos:

"...New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are " 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother.' Casey..."

IMO, it is weak to argue that reiterating the established precedent in the finding - as an explicit basis for the finding - does not reaffirm the precedent.


I haven't read the case, but I agree with your take on what it means to join this opinion. At the very least, Scalia and Thomas have affirmed the proposition as written.

I would have to think that if they wish to overturn Roe and Casey in a later case, they will have to say that there is no rational basis for restricting access to abortion under this set of conditions. (an argument which some will find more infuriating than Roe.) However, if I remember Rehnquist's Roe dissent correctly, he argued for a rational basis test that he thought would be failed in some situations. (including where a woman's life is at stake?)

(also, as a completely tangential aside re: rational basis versus heightened scrutiny. It seems to me that some decisions initially require heighten scrutiny, e.g. Loving, but as they become established they really only require rational basis. e.g. Loving in 2006.)
1.18.2006 8:10pm
Broncos:
Well, now I've read the opinion. Maybe I was wrong. I'm not sure why the second section of the opinion is needed for the decision at all, why it isn't just dicta that frames the issue.

More generally, as a law of remedies affecting facial challenges, I'm not sure how Ayotte can be cabined. (except for 1st challenges.) What does it mean to "facially challenge" a statute after Ayotte? You have to show that it's inconstitutional pretty much across the board, and then you get a remedy that only goes to those factual situations that you can demonstrate are unconstitutional? How is this different from really "wide" as-applied analysis?
1.18.2006 8:38pm
jrose:
OK, I re-read the opinion too. The part quoting Casey does appear to be dicta afterall. All I had to do was look at the very beginning of the opinion: "We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies ... (my emphases)". That's how they got a unanimous opinion.
1.18.2006 8:54pm
Just an Observer:
jrose,

Thanks for stating more correctly what I had tried to convey clumsily.

BTW, to avoid confusion you probably should not address me on this blog as "Observer," since I notice that there is another commentor who uses that handle. I am Just an Observer.
1.18.2006 10:42pm
ReaderY:
Jrose said:

The Court held, 'a State may not restrict access to abortions that are "necessary, in appropriate medical judgment for the preservation of the life or health of the mother"' (internal quotes from Casey).

While you are correct the ruling only held that the rare emergency case was implicated by the health exception in this circumstance, I am surprised the conservatives signed on to the broader finding of Casey. Does this imply these justices will have to find a way to interpret "necessary" and "appropriate" to uphold abortion restrictions, rather than reversing Casey?

JRose:

I think this case indeed suggests that the Court's conservatives may be willing to sign on to a slightly more liberal position than they might have been willing to do prior to Casey. It of course remains to be seen who gets to determine what is "necessary" and "appropriate". The current case suggests -- and I believe it critical -- that the question need not be left solely to a doctor's discretion, and that "health" may be permitted to be defined in such a way as to cover only relatively rare and serious cases. Nonetheless, this case signals that Roe will be left some meaning, and in particular, that it will cover "health" as well as "life." I believe this is a significant development. We have, very quietly and under everybody's noses, what may well become the new standard.
1.19.2006 9:01am
jrose:
ReaderY,

As my follow-up post states, the Casey reference is only dicta. So, I no longer believe the conservatives have signed on to a health exception of any kind. In fact, Ayotte did not even find the health exception applied in the current circumstance of an emergency (that too was dicta). All that Ayotte concluded was:

If (my emphasis) enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies ... invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrow declartory and injunctive relief."
Does anyone know how an injunctive remedy that neither re-writes the statute nor requires as applied challenges would work in practice?
1.19.2006 3:11pm
Just an Observer:
jrose: "Does anyone know how an injunctive remedy that neither re-writes the statute nor requires as applied challenges would work in practice?"

I don't claim to actually know. But during oral arguments, IIRC, one or more justices suggested an injunction could say something like this (my paraphrase): "Nothing in this provision shall be construed to prevent an abortion when the attending physician certifies that an immediate medical emergency precludes such parental notification or judicial-bypass proceeding."
1.19.2006 4:52pm
jrose:
Just an Observer,

That sounds like a reasonable application of Ayotte. If we apply the same principle to Carhart do we get an injunction along the lines of: "Nothing in this provision shall be construed to prevent a partial-birth abortion when the attending physician certifies that said abortion is necessary to preserve the health of the mother."
1.19.2006 5:44pm
Just an Observer:
jrose,

That is a plausible suggestion for applying this example to Carhart, I think. But there are complications:

In Carhart, the government says Congress investigated and made a finding of fact that essentially there can never be such a health situation in a partial-birth abortion. The court would have to deal with that issue.

Remember also that in Ayotte, the lower court must assess legislative intent, and still may throw out the whole law if it determines that the legislature would have preferred no bill at all to one that included a health exception more broad than the provision it wrote.

A similar situation might arise in Carhart. Arguably, Congress put a stake in the ground with its version of the health finding, and would not have passed the bill without it.
1.20.2006 12:59am
jrose:
Just an Observer,

Would it be accurate then to say that Carhart together with Ayotte requires either 1) the entire partial-birth statute to be nullified (because of legislative intent to not have a health exception) or 2) the injunctive ruling I proposed. Either way, wouldn't the effect be little or no restrictions on partial-birth abortion - over the years many have argued a health exception as judged by the doctor is de facto no exception.
1.20.2006 8:17am
Just an Observer:
jrose,

As a matter of common sense, I think your proposition has appeal. I can't predict that a common sense would prevail, but it is possible.
1.20.2006 3:07pm