December 1, 2005

Reports on the Ayotte argument.

Here's the NPR story on Ayotte, the abortion case. There are two audio clips from the oral argument. The first is a compelling exchange between Justice Breyer and the lawyer for the state -- with a sharp cut in from Justice O'Connor. In the second, we hear Justice Roberts questioning the ACLU Reproductive Freedom Project lawyer about why a preenforcement challenge should be permitted -- again, with assisted needling from Justice O'Connor.

Here's Linda Greenhouse's analysis of the argument:
Justices across the ideological spectrum appeared inclined to send the case back to the federal appeals court that had declared the law unenforceable in all respects, and to instruct that court to render a narrower ruling. Such a ruling would permit the law to take effect except when a doctor had certified that an immediate abortion - without either notifying a parent or seeking approval from a judge, an option known as a judicial bypass - was necessary to preserve a girl's health....

Attorney General Kelly A. Ayotte of New Hampshire, who brought the appeal of the lower court's ruling, asserted in her argument that under New Hampshire's general health law, a doctor performing an emergency abortion would have a legal defense in any event, based on the state's general law regarding medical practice. Ms. Ayotte said she was prepared to issue a formal opinion to that effect if the occasion arose.

The attorney general's position left Justice Ginsburg unsatisfied. "That's the real problem here for the doctor who's on the line," she said. "I think a lawyer who cares about his client would say 'defense' is not what we want, what we want is that there is no claim; not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense."

Justice John Paul Stevens reminded Ms. Ayotte that the sponsors of the parental notice law in the New Hampshire Legislature had rejected including a medical exception. "When you have legislative history that suggests that the Legislature considered this very defense and rejected it in the statute, would then that give some concern?"

Ms. Ayotte replied that while "there certainly was some indication that the Legislature did not want a general health exception," sponsors did not intend to leave pregnant teenagers unprotected in emergencies.
I consider Stevens's question a devastating one, showing the bad faith of the state legislature, a deliberate hostility to the constitutional right the Supreme Court has recognized.

UPDATE: Listen to the whole oral argument here or download here. I'm surprised at how tempestuous the argument gets with the Solicitor General, who aggressively talks over a Justice more than once.


SarahWeddington said...


It's not bad faith at all. It's the recognition by the legislature that the health exception as defined by Doe v Bolton is wide enough for Coach Alvarez's entireoffensive line to walk through.

We both know that it has been abused in the past to the point where an abortionist can perform an abortion for any reason whatsoever as long he says he made a "good faith" judgment that there were health risks involved. Of course, you know full well thta under Doe, the fact that a girl is upset at being pregnant and feels bad about it is a health risk.

Stevens is the one who's arguing in bad faith. He claims to profess concern for the health of the girl but in reality he just wants the health exception to maintain the status quo with regards to abortion on demand.

Ann Althouse said...

Sarah: You need to reread the material on the focus of the oral argument. The problem is the lack of attention to the emergency situation. I understand the problem perceived in the health exception, but something needed to be done about the emergency setting and the legislature's resistance to making a provision and current reliance on an implied exception is unacceptable.

SarahWeddington said...

The issue that there is no emergency situation. It's a red herring. It's similar to Stenberg. PBA is NEVER medically necessary but the pro choice side needs a health exception so they can perform them.

I would full well support a ruling tha said notification is required in all cases except life or a "medical emergency". PP won't accept that because they know full well that there won't be any medical emergencies and thus notification will always be required.

If you noticed, Breyer's definition of a medical emergency was indistinguishable from the braod health exception defined in Doe V Bolton. When Scalia called Dalven on it and said that the medical emergency claim would need "support in substantial medical evidence" she conceded that PP can't accept that because they'd never win a case if they actually had to present medical evidence.

Further, this whole thing is overblown. Last yr, there were 52 abortions on girls under 18. Gievn the current medical literature, 0 of them were because of a medical emergency. In fact, since Breyer seemed to concede Clement's 1 in 1000 case that would mean that in 20 yrs, thered would be 1 abortion because of a medical emergency.

Of course you know that in the meantime, PP would evade notification on the other 999 by making false health exception claims.

This is the problem. The pro choice side will not accept a meaningful health exception because it will severely curtail abortion on demand and that is unacceptable to them.

Let me ask you this. WHat is your definition of a medical emergency? How would you propose the state monitor compliance? What mechanisms would be in place that would prevent abortionists from lying and abusing the system? If an abortionists was found to have lied about a medical emergency, what punishment would be acceptable to you? Would the state be justified in revoking his license and prohibiting him from performing future abortions?

Until we can get answers to these questions, the health exception will remain, as Justice White rightly recognized in Doe V Bolton nothing but a SC enforced constitutional protection of abortion on demand.

SarahWeddington said...

Here is Justice White, laying out the case:

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs.

This is what it comes down to. Right now, 6 justices on the SC value the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. As such, that is the law. By February, there will only be 5 justices that agree. Should Justice Stevens step down, there could very well be a majority of justices that disagree with that. Basically, it's all about 9 unelected lawyers.

What about you? Do you value the convenience of the mother over the life of the fetus? Do you believe that the Constitution requires the state to value the convenience of the mother over the life of the fetus?

If you do, that's fine. But you should have the confidence of your convictions to admit it and not use the health exception as fig leaf.

SarahWeddington said...

you write, "a deliberate hostility to the constitutional right the Supreme Court has recognized."

Can I ask you this. Would you consider the attempts of civil rights groups to limit and reverse discrimination laws in the first half of this century "a deliberate hostility to the constitutional right the Supreme Court has recognized."?

After all, the Consitutional right to maintain separate facilities was also recognized by the Supreme Court. As was the right to own slaves. Did the abolitionist movement show "deliberate hostility" to a constitutional right?

Robert said...

Sarah's second comment is on the money. The Justices want to send the case back to a lower court to narrow their ruling ... and narrow it around a condition that, by definition, can never exist? And this nonexistent condition has caused them to nullify entire laws?

That's the problem with the abortion debate. The abstract thinkers are "choice" this and "health exception" that, and the people who think concretely about this issue have their opinions dismissed because most of them espouse a very abstract philosophy (a strong sense of faith or at least membership in some religion) that guides them to this concrete thought.

chuck b. said...

Has anyone reported on the new Chief Justice's questions during the hearing yesterday? (I'm far too lazy to click links and read stories myself--I prefer to be spoon-fed whenever possible.)

It seems like there's a conspicuous lack of discussion about him. (Not necessarily here, just in general.) And who doesn't already know what Scalia and Stevens will say?

SarahWeddington said...

Roberts seemed rather receptive of NH's and the SG's arguments and seemed quite skeptical of PP's arguments, fwiw.

Anonymous said...

The easiest resolution of this issue is to look at the state's law with respect to non-abortion medical procedures.

As a general rule, minors cannot undergo medical procedures (or even testing)without a parent's consent. My spouse is a pediatrician who works at an inner city clinic, where children are often cared for by grandmothers, aunts, etc., and they still have to get parental consent (often from jail) for medical treatment.

I believe there is an exception for life-threatening situations, but not for general "health" concerns.

If there is no general "health" exception for minors, then an abortion should be treated no differently. Otherwise the Supreme Court may inadvertantly imperil all parental consent laws for medical care.

Richard Dolan said...

Fromm the description of the oral argument, it doesn't sound like the Court will be issuing a decision any time soon. Assuming that Roberts sides with NH's position, is there a five vote majority without O'Connor (assuming that Alito will be confirmed before the decision is released, and thus O'Connor will not participate in the decision)? I suppose it comes down to Kennedy. Did he have anything of interest to say at oral argument?

wildaboutharrie said...

Wurly - abortion has traditionally been discussed differently than, say, having one's tonsils out because there are young women who would seek an illegal abortion (or try to self-induce an abortion) if the only other option is to tell her parents.

Using an emergency health exception is really beside the point and disingenuous.

Anonymous said...

wildaboutharrie -

Yes, but the issue in this case is not about parental notification itself, and there is a judicial bypass in the cases where a minor cannot tell her parents. This case, from what I understand, is merely under what *medical* situtations is notification not necessary.

Most states have general laws about this should cover abortion as well as any other medical procedure.

Otherwise, this case has the potential to be a far-reaching federalization of parent-child law in the area of medical care generally.

wildaboutharrie said...

Sorry, wurly, I misread you. Thanks.

teddy_kgb said...

As to Roberts, I don't think he was necessarily receptive to the arguments regarding facial review. Ayotte conceded under questioning from Roberts that it would be proper for a doctor to bring a challenge to the law with third-party standing. She also conceded, under questiong from Roberts again (with others) that the questions in such a case would be substantially similar to the current case.

While PP was challenged on the issue, most notably by Scalia but Roberts as well, it didn't seem nearly as hostile, and the advocate was able to raise and release fairly quickly.

As to the merits of the health exception - I just was not impressed at all by Ayotte's argument. The implication that the court, via "severability," can insert a health exception into the statute against the clear legislative intent doesn't pass the laugh test.

I liked Scalia's argument that any good faith belief be coupled with "sound medicine." Maybe that should be the standard, and it would certainly curb "abortion on demand" for all 50 of those teenagers that got it last year. But shouldn't the legislature be given the opportunity to make that law?

Pooh said...


I think based on Griswold on down you can make the good-faith argument that parental notification/consent laws might have to be different in the reproductive context. The normal calculus balancing the rights between parental obligation and the minor's rights is different than in more 'normal' situations. It only federalizes these laws insofar as the Consitutional protection of minor's rights could be seen as broader in this limited area than in others.

I agree with Prof. A, on the bad-faith point, if narrowly. The legislature, by ignoring Court precedent and abdicating its own repsonsibility to act constitutionally, and then arguing for severability, is in effect asking for just that 'legislation from the bench' that gets everyone all atwitter.

Aaron said...

Is there an element of political calculation in trying to kick theis back to a lower court for a while. The make up of the court will be changing shortly. Is this a factor in trying to kick the decision down the road?

Ann Althouse said...

Pooh: I heard a lot of hostility to the idea of "severability." Ginsburg and others kept saying severability relates to excising something from a statute but the state was asking for the Court to add something to it. That was especially bad because the state legislature made a big deal of refusing to include that very thing.

Anonymous said...

The law provides an exception for emergencies.

Parental Notification Prior to Abortion
Section 132:26
132:26 Waiver of Notice. –
I. No notice shall be required under RSA 132:25 if:
(a) The attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice; or
(b) The person or persons who are entitled to notice certify in writing that they have been notified.

The issue as I understand is that The U.S. Court of Appeals for the 1st Circuit, based in Boston, ruled last year that the New Hampshire law is unconstitutional under a 1992 Supreme Court decision that said states may not impose any "undue burden" on the right to abortion.

Richard Fagin said...

When you can tell me that a minor can get ANY OTHER invasive medical procedure without parental consent, except in dire emergency, I'll go along with Stevens and Ginsburg. Otherwise any opposition to parental notification/consent abortion laws is a complete, utter fraud. Heck, kids can't bring aspirin to school without getting suspended. Rights to make certain personal decisions that adults enjoy don't usually apply to children. Jeez.

SarahWeddington said...


the exception is only to prevent death, not a "medical emergency". this is whole crux of the matter. the abortion industry has largely invented this idea that immediate abortion is required for medical emergencies. it is not.

the whole argument boils down to how one defines a medical emergency. PP and Justice Breyer define it as whenever an abortionists or a female wants an abortion. IOW, every abortion is because of a medical emergency.

A more reasonable interpretation would be that a medical emergency is defined as a known set of symptoms that lead to a diagnosis. IOW, these symptoms are present, the following harm will result, immediate abortion is mandatory to fix the problem.

the problem is, the above scenario(or the one Breyer made up)has NEVER happened. For example. MN has had a notification law identical to NH's for the past 15 years. In those 15 yrs, NOT ONE SINGLE minor has ever needed an abortion because of a medical emergency. In ND, they've had a law for 25 years and NOT ONE SINGLE minor has ever needed an abortion because of a medical emergency.

The whole notion of a health exception is simply to create a trojan horse through which to sneak through abortion on demand.

Aspasia M. said...

(A mostly unrelated aside...)

What's up with all the references to kids not being able to have asprin in school?

In Junior High Schools most girls have started their periods. I and my friends regularly brought advil, midol, and ibuprofen to school. We stored the pills in our back packs or purses and it never once occurred to me that I needed permission from the school nurse to take advil or midol for cramps. I can't imagine someone suspending a kid for taking advil without prior permission.

Perhaps schools now-a-days have "midol police" who suspend girls who dare to take pain medicine.

Anonymous said...

It's obvious that PP will not give one inch just as National Rifle Association won't. It's also obvious (to this hayseed) that certain members on the court will twist law and tradition to faciliate a progressive agenda. The problem with doing that is before long you've twisted everything into an unrecoqnizable mess.

wildaboutharrie said...

geo, many school districts have a "zero tolerance" policy on drugs. Students have been kicked out for possession of Midol.