You might think that something huge was at stake from the sound and fury accompanying the November 30 Supreme Court argument about New Hampshire’s restrictions on minors’ access to abortion, and the pending challenge to the 2003 act of Congress banning "partial-birth" abortion.
Abortion-rights advocates warn that any decision upholding restrictions on abortion in either case would jeopardize women’s health and set the stage for evisceration of Roe v. Wade. Anti-abortion advocates portray the lower-court decisions striking down these laws before they took effect as steps toward the destruction of the American family and the legalization of infanticide.
The reality is less momentous: No matter who wins, the decisions in these cases are unlikely to harm anyone’s health, to prevent anyone who is sure she wants an abortion from getting one, or to save many (if any) fetuses. As is usual in abortion battles, the interest-group hysteria and media hype overstate what’s really at stake.
Which is not to say that nothing is at stake. In the New Hampshire case, in particular, abortion-rights groups have leveraged legitimate concern over possible medical emergencies in fewer than one in 1,000 cases into decisions by federal district and appeals courts striking down the entire parental-notification law.
So for now, at least, clinics are free to perform abortions on any 13-year-old girls who walk through their doors, with no parental or judicial involvement at all.
Based on the comments at oral argument, at least five justices seemed sympathetic to the Bush administration’s quite reasonable suggestion that they uphold the parental-notification law except in the tiny number of cases where it would dangerously delay abortions in medical emergencies.
Justice Sandra Day O’Connor, who joined her four more-liberal colleagues five years ago in a 5-4 decision striking down a Nebraska law against "partial-birth" abortion, seemed to be leaning to the conservative side in the New Hampshire case, Ayotte v. Planned Parenthood. She pressed a lawyer for the abortion-rights groups on whether the remedy that they had obtained in the lower courts — "the invalidation of the entire statute in all of its applications" — was really necessary to protect minors in a few medical emergencies.
If O’Connor is replaced by Judge Samuel Alito before the case is decided, and if the other justices are evenly divided, the Court could set the case for reargument, with Alito participating. He seems at least as likely as O’Connor to be receptive to the administration’s approach.
Alito’s record does not, on the other hand, necessarily suggest that he still favors overturning Roe v. Wade, as he famously did in 1985. Nor did any member of the Court suggest that the New Hampshire case be used as a vehicle for re-examining Roe.
There is actually a fair amount of common ground in the case. The abortion-rights groups concede that under the Court’s precedents, a state can impose a general rule requiring almost all minors seeking abortions to first notify one or both parents, or to obtain permission from a judge — as New Hampshire and 43 other states have done.
And the administration concedes that the precedents give minors and their doctors a constitutional right to proceed without notifying a parent or seeking judicial approval in any medical emergency in which the attendant delay would harm the girl’s health.
The main disagreement is pretty legalistic. The abortion-rights groups want the Court to strike down the entire parental-notification law "on its face" — even though it would clearly be valid in the vast majority of cases — because it lacks an explicit health exception. (It does have a narrow exception for abortions necessary to save a girl’s life.)
The administration says, as does the state, that the courts should allow the New Hampshire law to take effect and should craft their own medical-emergency exception.
Abortion-rights advocates would prefer a broad health exception. But the New Hampshire law already authorizes judges to consider health problems when deciding whether it would be in the best interests of a minor to allow her to have an abortion without notifying her parents.
So the only tension between the New Hampshire statute and the precedents barring any abortion restriction dangerous to a girl’s health is the statute’s failure to allow for an immediate abortion in any medical emergency in which delay would cause health problems.
The administration’s approach would fix that flaw. But abortion-rights absolutists claim that it would preclude any judicial intervention "until a minor [is] already unconstitutionally endangered and in the midst of a medical crisis," in the words of a New York Times editorial.
This is wrong, as Solicitor General Paul Clement made clear, both in his friend-of-the-court brief and at oral argument.
"Courts may be understandably reluctant to insist that a plaintiff suffer through an emergency before the plaintiff can challenge a statute," Clement wrote. But the solution, he said, is not to strike down the entire law "based on the mere possibility of some unconstitutional applications." It is for the courts to carve out a medical-emergency exception by allowing abortion providers (and/or minors) to file and win individual lawsuits or class actions seeking "declaratory or injunctive pre-enforcement relief … before irreparable injury has actually been suffered."
Such a decision would hold the New Hampshire law unconstitutional "as applied" to any cases in which the delay necessary to obtain judicial permission would endanger the girl’s health.
Health problems that require immediate abortions — such as hypertension induced by pregnancy, and infections of the placental lining — are exceedingly rare. Minnesota, Montana, and North Dakota have had parental-notification laws with no explicit health exception for more than 15 years with no evidence of ill effects. Indeed, the justices upheld the Minnesota law in 1990 without even discussing the absence of an explicit health exception.
So why are abortion-rights advocates so eager to knock off the similar New Hampshire law in its entirety? In their brief, Planned Parenthood of Northern New England and the other plaintiffs make the rather Orwellian claim that this junk-the-whole-thing approach would be most consistent with "judicial restraint."
Nonsense. Judicial restraint is anathema to these groups. The real explanation is that many of them are implacably opposed to even the most reasonable, popular, clearly constitutional, democratically adopted restrictions on abortion. They prefer no parental-notification law at all, for as long as possible, over a law whose constitutional flaw has been judicially repaired.
And they know that if the justices strike down the entire New Hampshire law, forcing its supporters to start over again, the supporters might not be able to get a new, constitutionally impeccable parental-notification law through the closely divided state Legislature — or past the new governor, Democrat John Lynch. He opposes the law and has urged the justices to strike it down.
The justices seem unlikely to oblige. But the federal "partial-birth" abortion law, which they have been asked to review and probably will review next year, presents more difficult problems.
The federal law is quite similar to the Nebraska statute that the justices struck down five years ago, in Stenberg v. Carhart, partly because it lacked an exception for cases in which the "partial-birth" procedure is best for the health of the woman.
The administration argues that the justices should defer on questions of fact to Congress, which contradicted Stenberg’s factual premise by finding, after detailed hearings, that "partial-birth abortion is never medically indicated to preserve the health of the mother."
But if that’s so clear, then why would any competent doctor think that it is medically indicated sometimes, as several have sworn?
And what exactly is the point of this law if — as the congressional findings indicate — it would not save a single fetus? Supporters say the point is that this procedure, used in some second- and third-trimester abortions, is "abhorrent," as Justice Anthony Kennedy wrote in dissent in StenbergAbhorrent it is. But all second- and third-trimester abortion procedures are abhorrent. See next paragraph for details; skip it if you prefer not to be horrified.
Why make it a crime for a doctor to use the "partial-birth" procedure to kill a second-trimester fetus by tearing open its skull after pulling it out of the womb intact, while the "D&E" procedure, used in most second-trimester abortions to dismember and kill the fetus before pulling it out of the womb, remains perfectly legal?
Richard Posner, a Reagan-appointed federal appeals court judge, once called this distinction "arbitrary to the point of irrationality." It will be interesting to see what Bush-appointed Chief Justice John Roberts and Justice Alito (if confirmed) will make of it.