November 29, 2005


Case Reopens Abortion Issue for Justices (LINDA GREENHOUSE, 11/29/05, NY Times)

[O]f the 43 states with parental-involvement statutes, New Hampshire is one of only five that do not also provide an exception for non-life-threatening medical emergencies, and it was on this basis that two lower federal courts declared the law unconstitutional.

The Supreme Court's decision in the case, Ayotte v. Planned Parenthood of Northern New England, may therefore shed light on the contours of the "health exception" that the court's abortion precedents have required since Roe v. Wade in 1973.

The second question, while seemingly quite technical, has perhaps even broader implications. The issue is under what circumstances federal courts can continue to do what they did in this case and in many other abortion cases: bar the enforcement of abortion restrictions that have not yet gone into effect, and so cannot be said to have injured any specific plaintiff.

Waiting in the wings, as the justices surely know, is another, perhaps even more highly charged abortion case. The Bush administration recently filed an appeal in defense of the federal ban on the procedure that abortion opponents have labeled "partial birth abortion," and the court must decide shortly whether to hear it.

That law, passed in 2003, has never taken effect. Federal courts around the country have declared it unconstitutional for lack of the health exception that the Supreme Court said was essential when it struck down a nearly identical Nebraska law in 2000. In passing the federal ban, Congress took account of that ruling by declaring that a health exception was superfluous because the procedure was, in its view, never medically necessary.

When the New Hampshire legislature was debating whether to enact a parental notification law in 2003, some legislators cited the Supreme Court's 2000 ruling in the Nebraska case, Stenberg v. Carhart, to argue that the measure needed a health exception. But the bill's sponsors resisted including one on the ground that it would offer doctors too big a loophole for avoiding parental involvement.

Without the health exception, the bill passed the State Senate by a vote of 12 to 11 and the House by a vote of 187 to 181. It was signed into law by the state's Republican governor, Craig Benson. John H. Lynch, the Democrat who defeated him in last November's election, opposes the law and has filed a brief in the Supreme Court urging the justices to declare it unconstitutional. The state's attorney general, Kelly A. Ayotte, a Republican, has pursued the appeal under her office's independent litigating authority and will argue the case herself.

Poll: Americans back abortion limits, oppose ban (CNN, 11/27/05)
Roughly two-thirds of the people questioned in a recent poll on abortion supported parental and spousal notification but opposed a constitutional amendment to ban the practice altogether.

The CNN/USA Today/Gallup poll conducted November 11-13 found that 69 percent of the 1,006 adults questioned were in favor of requiring minors to get parental consent to have an abortion, while 28 percent opposed that step.

Posted by Orrin Judd at November 29, 2005 8:26 AM

Parental and spousal consent can easily to be supplanted by a court order, so this is only window dressing and everyone knows it.

Looks like public opinion is getting closer to what I think is the solution. No law against abortion and no right to an abortion. Get Planned Parenthood and other pro-abortion groups out of the equation by cutting off their funding and start a PR campaign against using abortion as a convenient method of birth control.

These two measures alone if done right will drastically reduce the number of abortions.

Posted by: erp at November 29, 2005 9:54 AM

This "fight" was over a long time ago.

Now the "fight" is about funding, power and access.

Posted by: Sandy P at November 29, 2005 10:35 AM

American opinion has been consistent over the past 30 years - 55% +++, IIRC.

Don't like it, won't pay for it, but I'm not going to tell you what to do - unless you're a child.

Posted by: Sandy P at November 29, 2005 10:38 AM

Sandy: As the case in Missouri last month showed, "won't pay for it" doesn't have any meaning under the current regime...

Posted by: b at November 29, 2005 11:05 AM

Missouri case?

Posted by: Mike Morley at November 29, 2005 6:46 PM