January 18, 2006

The abortion case fizzles.

The abortion case fizzles as the Court avoids the "undue burden" question and reverses because the lower court "chose the most blunt remedy." The unanimous decision was written by Justice O'Connor, in perhaps her last opinion.
Justices said a lower court went too far by permanently blocking the law that requires a parent to be told before a daughter ends her pregnancy.

An appeals court must now reconsider the law, which requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth's health.

ADDED: From the opinion:
When a statute restricting access to abortion may be applied in a manner that harms women's health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact….

In this case, the courts below chose the most blunt remedy -- permanently enjoining the enforcement of New Hampshire's parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called "partial birth abortion" unless the procedure was necessary to save the pregnant woman's life. We held Nebraska's law unconstitutional because it lacked a health exception. But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.

In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief "just and proper," and conceded at oral argument that carefully crafted injunctive relief may resolve this case.

22 comments:

Simon said...

But is this a fizzle? Isn't the practical effect of this ruling at least 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. Ayotte, 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 enforce reasonable regulations on abortion, even while court procedings are ongoing?

Lastly, doesn't this ruling pre-empt certain challenges, in that it seems to explicitly condone parental notification laws: "[s]tates 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"?

Cat said...

I object to the term "women/woman" being applied to minors. When a parent is responsible for the health and well being of their child until the age of 18, then they HAVE to be notified. Period. Why is there even a discussion especially since in the pro-abortion crowd abortion is considered "health care."

Simon said...

I think I agree with Cat, if I'm reading her comment right. 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 relatively serious surgical procedure without the parents even being notified? That seems an absurd result.

It seems me that such laws aren't really about abortion, and it seems funny that NARAL - many of whose members I have no doubt are parents themselves - would hitch themselves to this wagon. 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.

It seems to me that we, as parents, are responsible for the wellbeing of our children; we 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 (perhaps this is better formulated the other way around, that is to say, that the doctor has an absolute responsibility to inform the parents, and should be legally culpable if a child dies or suffers serious injury as a result of the doctor's neglecting to do so), and in my view, a right to consent or deny consent. It has nothing to do with abortion, and everything to do with parental responsibility.

Duffy Nichols said...

How many split hairs can dance on the head of a pin?

gj said...

Cat, the subject at hand is emergency care, where the delay required to notify the parents (or gain a judge's approval to bypass such notification) could harm the health of the girl.

Generally speaking, emergency health care does not require parental notification or consent.

gj said...

Simon, setting aside the strongest partisans on the pro-choice side, parental notification is not controversial. Every Democrat in the New Hampshire state legislature was ready to vote for a parental notification law if it included an exception for the health of the girl.

New Hampshire Republicans specifically discussed and chose to exclude the health exception. I won't speculate as to their reasons for doing so.

Simon said...

"Every Democrat in the New Hampshire state legislature was ready to vote for a parental notification law if it included an exception for the health of the girl . . . New Hampshire Republicans specifically discussed and chose to exclude the health exception. I won't speculate as to their reasons for doing so."

I don't think you really have to speculate. The reason pro-lifers generally oppose health exceptions, I think (maybe I'm just speaking for myself, so maybe I should say the reason that I oppose an unqualified health exception) is because that exception is a loophole large enough to drive a truck through; unless you have an executive which is serious about enforcing the law and a statutory provision to investigate and prosecute violations of the law, what the health exception does is to provide abortion on demand, because anything can fit into a generalized health exception.

I commented on my view of abortion laws here, but to summarize, I fully support exceptions to save the life of the mother, and I am not even opposed to a carefully-written health exception, but what I do object to - and what I think many more pro-life people object to - is a statute that in effect achieves nothing by letting an abortion go forward exactly as it would otherwise have done, with the only protection for the infant being the good faith of someone who wants to get paid.

JLR said...

I think the unanimity here, and the fact that it was Justice O'Connor who wrote the opinion for the Court, may in fact have something to do with the Alito nomination (he says understatedly). A narrow and, more importantly, unanimous decision on an abortion case makes it difficult for those opposed to Judge Alito to use this case to raise the salience of abortion even more prior to the committee and floor votes on Judge Alito's confirmation.

whit said...

This was a good ruling. I would like to see an exception for health care emergencies where the life of the minor is in jeopardy. Medical authorities must make every possible effort to contact the parents and the abortion must be done in a medical facility not known as an "abortion clinic" by a Doctor not associated with the abortion industry.

Smilin' Jack said...

"[s]tates 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"?

Pure B.S. The statistics show that abortion is safer than giving birth, and earlier abortions are safer than late ones. "Parental involvement" can't change that.These abortion notification/consent laws aren't driven by any concern for the health or welfare of "young citizens," but by anti-abortion wackos seeking to impose their views on others.

cbi said...

whit said...
"This was a good ruling. I would like to see an exception for health care emergencies where the life of the minor is in jeopardy. Medical authorities must make every possible effort to contact the parents and the abortion must be done in a medical facility not known as an "abortion clinic" by a Doctor not associated with the abortion industry."

Yeah, I could live with this.

RogerA said...

In my current life as an epidemiologist--and a non-religious, but conservative (Humian) political animal--folks: if anyone thinks that emergency abortions are required to for the health of the mother, doesnt have any medical idea about which they are talking--

Simon, it seems to me, has it right. But, of course, I would love to see how epidemiological statistics, backed up with longitudinal studies about maternal health affects the mother when the mother is below the age of consent, affects this argument.

In fact, the people who make this asinine argument arent making it from an empirical point of view--they are merely making from a political point of view-

Of course, you could convince with me with a peer reviewed study.

Bladedoc said...

As smilin jack pointed out, since an early term abortion is statistically safer than a live birth (at least for the mother) the "health and safety of the mother" line IS a big loophole. Ergo even if you ONLY allow abortion for the health and safety for the mother it means abortion on demand. That's how the British law is worded and that's the upshot. Frankly, I'm pro-choice so I don't care but people should admit that it's a big "wink, wink, nudge, nudge" arguement

Cat said...

Smiling Jack - I am assuming you don't have a child, or are a child yourself with your response. I don't know where you are gettin your statistics that abortion is "safer" than childbirth. For any other medical procedure or as Simon says, giving a child tylenol you need parental consent. Abortion should be no different.

GJ, if it's an emergency and the child is taken to an emergency room (the usual place to go in "an emergency"), and the child's life is in danger is one thing. Most Dr's wouldn't bet against a living patient and abortion over a dead one without. I think it's pretty clear to most what constitutes an emergency. You know, she becomes ill, you call 911 and get taken to the nearest hospital by car or ambulance. THAT is an emergency. THAT would be the ONLY instance in which a parent wouldn't be notified or couldn't be. Hopefully, in a moment that scary, the kid would want her mom, dad or guardian there and would give that information to those in charge.

However, the abortion rights groups never frame it that way. If it's an operation in an abortion clinic, I would have a feeling it's not an "emergency" where there wasn't enough time to consult with the parent. They don't say "emergency" they just say in an instance where the "life of the mother" is at risk. If the life of the mother is truly at risk, I dare say you will find few parents who would not save their child. In all but emergencies, those with "life at risk" usually have time to call their folks.

Also, how many teenagers are clear on their and their family's medical histories, medications, etc or be honest about it inparticularly if that is a risk that will make them unacceptable for undergoing the procedure. I don't think teenagers are able to weigh the risks.

If my kid died or became seriously ill with infection (AGAIN - how many teens can you count on to say, take post op anti-biotics or watch for warning signs of illness - maybe it's not the flu, but an infection), I would make it my job in life to ruin the doctor who took it upon himself to put my kid under the knife without informing me.

gj said...

OK, what I'm hearing most posters say is that there is no legitimate use of the health exception to bypass the requirement for parental notification; the exception is nothing other than a loophole to allow minors to have abortions without parental knowledge or judicial intervention.

I don't agree with that and I don't see the court agreeing with that position. They are still requiring a health exception. But they are giving the lower courts the opportunity to define the contours of that health exception. Hopefully this will make room for some legitimate policy development and dialogue, recognizing that the health exception can potentially be abused, but that there are cases where it is also necessary.

Of course, it should have been the legislature that did this. But given that they appear to more interested in polarized grandstanding, this sounds like the right approach that the court has taken. What we need is more dialogue about this issue, not less.

Mark Daniels said...

If in fact this ruling proves to be the last one in which Justice O'Connor had a voice, it would be ironic, I think: The justice constantly referred to as the "swing" voter writes the unanimous opinion of the Court.

Mark Daniels

Pastor_Jeff said...

gj,

I don't really understand the Court's decision in sending it back down for a definition of a health exception, since Doe v. Bolton pretty much defined it:

"medical judgment may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman’s age -- relevant to the well being of the patient. All these factors may relate to health."

This is why most people see the health exception as a hole big enough to drive a truck through. SCOTUS has effectively said: "You must have a health exception," and "Health can mean anything."

So the options as far as reasonable limitations on abortion are: 1) Include a health exception acceptable under Doe. Your law now does exactly nothing, since "health" can be anything; or 2) Exclude "health" and get the law struck down.

The result is where we are today: abortion on demand during all 9 months of pregnancy for any reason or no reason.

I agree that we need more dialogue. Unfortunately, SCOTUS has made that impossible because of Doe.

Simon said...

GJ,
"OK, what I'm hearing most posters say is that there is no legitimate use of the health exception to bypass the requirement for parental notification."

That is actually what I'd say, but I feel the need to clarify since I don't think that's exactly what I have said in this thread thusfar.

If we accept arguendo that parents need not consent, and we are speaking only of notification, then "there is no legitimate use of the health exception to bypass the requirement for parental notification," because my objections outlined above (and at more length here) would be satisfied by notification before, during or after the procedure. The point, in this hypothetical, would be that the child should not be released from medical supervision until the parent(s) or guardian(s) were informed, not that the abortion could not be performed prior to notification.

I also want to clarify that I am certainly not suggesting that "there is no legitimate use of the health exception" in the context of the wider debate about maternal health exceptions to abortion laws.

Charles said...

Emergency medical conditions would be like rolled in on a gurney from a horrible car accident and during triage, the doctor discovers she is pregnant - can deliver a baby way under term and possible survival while the mother dies, or saves the mother and cant save the unborn - and so makes the split second decision on what will be worked on. Maybe there is a walk in case of treating a deadly condition that results in the unborn's death and so there is a choice to be made.

But in this age of cell phones, email, Blackberrys and all the rest, a parent can't be contacted? Some group with a trying-to-be-hidden agenda is attempting a mass pull the wool over eyes to the public. I resent their assumption I am that stupid.

gj said...

Charles, your description of emergency medical conditions is far from exhaustive, and only shows that you haven't read the arguments in the case. We can argue about the frequency of medical conditions that are relevant, but I would personally prefer to leave medical judgements to doctors rather than to part-time legislators working in a highly polarized political environment. (I haven't checked, but I'd wager that there are more realtors and lawyers in the New Hampshire legislature than doctors and nurses.)

Also, in case it wasn't clear, people without blackberries or cell phones also deserve constitutional rights.

Simon said...

"Also, in case it wasn't clear, people without blackberries or cell phones also deserve constitutional rights."

Yes, they deserve the rights accorded to them by the Constitution, but obtaining an abortion is not one of those rights, and a fortiori when we're speaking of children.

Seven Machos said...

gj -- Admit it, gj. You aren't a health professional and you don't know what you are talking about. You are making a political argument that is impervious to reason.

What percentage of pregnancies have complications? Of those, what percentage involve minors? Of those, what percentage involve life-threatening emergencies? Of those, what percentage involve situations in which a decision has to be made in the next 20 minutes? Of those, which involve cases in which neither parent can be contacted in any way?

We are talking here about maybe a dozen cases per year in a state the size of California. You don't make law based on extreme, ridiculous hypothetical situations. (You would enjoy law school, though.)

I've seen a terminated pregnancy. It sucks. The whole thing unfolds over a week -- plenty of time to get consent.