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.
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8 comments:
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"?
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.
"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.
"[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.
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
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.
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.
"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.
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