A Court at the Crossroads
Eastland, Terry
A Court at the Crossroads A pivotal abortion case for the post-O'Connor Court. BY TERRY EASTLAND ON MAY 23, the Supreme Court announced it would review the constitutionality of a New Hampshire...
...But it could also be that some liberal justices were trying to win while they still had the votes, one of which was to be O'Connor's...
...The answers will be noted and debated, of course, but what counts will be the eventual exercise of judicial power...
...BY TERRY EASTLAND ON MAY 23, the Supreme Court announced it would review the constitutionality of a New Hampshire law requiring parental notification at least 48 hours before an abortion may be performed on an "unemancipated minor" (a female under age 18...
...But in Casey, the Court explicitly rejected the Bush administration's request that it overrule Roe...
...Maybe...
...Whatever motivated four or more justices to take Ayotte, New Hampshire now has a better chance of prevailing than it did when the Court took the case—provided President Bush appoints a bona fide judicial conservative...
...The statute has no health exception and is thus squarely at odds with Stenberg...
...To be sure, the liberal interest groups opposed to Bush's judicial philosophy recognize Ayotte's significance as an indicator of where the Court might be headed on Stenberg, and maybe even on Casey and Roe...
...Just last week the Eighth Circuit struck down the law...
...Which justices did that, and why, are unknown...
...The New Hampshire legislature passed the statute in June of 2003...
...The Court also said that the law lacked an exception to preserve a pregnant woman's health...
...The first Bush presidency shared that same goal...
...The Court has yet to address this The Court is one vote away from approving bans on partial-birth abortion, and two votes from jettisoning the abortion right and returning the matter to the states...
...Hoping O'Connor would not retire for another year, they voted (according to this scenario) to take Ayotte to strike down the law and reaffirm the Court's rulings on abortion...
...A decision in Ayotte sustaining the New Hampshire law would seem to augur well for the eventual upholding of the federal ban on partial-birth abortion that was enacted in 2003 with Bush's support...
...Eight years before O'Connor's appointment, the Court, invoking the hoary doctrine of substantive due process, announced in Roe v. Wade a constitutional right to abortion...
...Under Roe, abortion laws were subject to strict scrutiny and thus were unconstitutional unless they could be shown to serve a compelling governmental interest...
...Five years later in Planned Parenthood v. Casey, however, the Court used a less demanding standard in reviewing a challenge to Pennsylvania's abortion regulations...
...It was to take effect on December 31, 2003, but Planned Parenthood sued in federal court and won a judgment holding the law unconstitutional and prohibiting its enforcement...
...The Court almost certainly will review one of these rulings...
...The First Circuit affirmed, whereupon the New Hampshire attorney general appealed to the Supreme Court...
...Decisions are pending in two other circuit courts...
...Soon enough, thanks to Ayotte, the country is going to see what kind of justice, or justices, Bush will have chosen...
...And the now Rehnquist Court's record in late 1980s abortion cases suggested that Roe's days were numbered...
...O'Connor, Souter, and Kennedy wrote an unusual joint opinion in which they reaffirmed the abortion right consti-tutionalized in Roe, while changing the standard of review from strict scrutiny to "undue burden...
...The Reagan presidency aimed to appoint justices committed to a judicial philosophy at odds with the one that produced Roe...
...In 1987 the Court ruled (in a case not about abortion) that a plaintiff challenging a law as facially invalid must show that there is "no set of circumstances" under which it could ever be lawful...
...The president's nominee—or nominees, as the case may be—can easily deflect confirmation-hearing questions about Ayotte on grounds that it would be improper to discuss any case scheduled to be heard in the coming months...
...The Court is one vote away from approving bans on partial-birth abortion, and two votes from jettisoning the abortion right and returning the matter to the states, where under the Constitution it has always belonged...
...O'Connor probably would have found the statute unconstitutional, but if President Bush chooses a jurist who shares his stated judicial philosophy, the new justice will likely vote for the law, and that vote could decide the case...
...As it happens, the second question that the Court will address is whether the New Hampshire statute indeed satisfies the requirement of a health exception...
...Immediately, Ayotte v. Planned Parenthood figured to be one of the coming term's more notable cases...
...The justices were under no obligation to review the case—they take very few of the hundreds of petitions they annually receive—but at least four justices (the required minimum) voted to take it...
...tension, effectively leaving it to the courts of appeals, almost all of which have rejected the "no set of circumstances" standard...
...Indeed, Ayotte is a depressing reminder of the failure of Republican-appointed justices to recover the meaning of the Constitution with respect to the most controversial domestic issue of our time...
...But now, with Sandra Day O'Connor retiring, Ayotte assumes even more importance...
...But that will not prevent questions about the Court's abortion jurisprudence...
...What is known are the two questions the Court saw in the case, with the first being the seemingly dry one of what standard should be Terry Eastland is publisher of THE WEEKLY STANDARD...
...In particular, the Court would make clear that any regulation must ensure access to abortion if the pregnancy threatens the woman's health...
...The undue burden test seemed to permit legislatures more room to regulate abortions, but in the 2000 case Sten-berg v. Carhart, it became clear how limited that room really was...
...A five-justice majority that included O'Connor and Souter but not Kennedy, now disturbed by where Casey had led and more willing to uphold abortion regulations, used undue burden analysis to strike down a statute prohibiting the truly barbarous method of late-term abortion known as partial-birth abortion...
...That is the standard Justice Scalia would use in the context of abortion as elsewhere, and some lawyers have speculated that Scalia pushed for taking Ayotte because he saw it as a case for resolving the issue, and on his terms, which would prevent abortion regulations from being, well, aborted...
...used to decide whether a statute is, to use the legal jargon, facially invalid...
...It was a very high standard, almost never met in the judgments of the Burger Court...
...Abortion cases usually are...
...By 1991 those two presidencies had delivered five new justices—O'Connor, Scalia, Anthony Kennedy, David Souter, and Clarence Thomas...
Vol. 10 • June 2005 • No. 41
