December 1, 2005


Roberts Seeks Middle Ground: Court Hears Appeal on Parental Notification of Abortion (Charles Lane, December 1, 2005, Washington Post)

It's the middle of the night in New Hampshire, and a teenager, afraid to tell her parents she is pregnant, appears at an emergency room. A doctor diagnoses a spike in blood pressure that won't kill the girl but could render her sterile unless she has an immediate abortion. The doctor calls a judge for permission to perform the procedure, as state law prescribes -- and voice mail answers.

"What's supposed to happen?" asked Justice Stephen G. Breyer, who posed the hypothetical situation during oral arguments at the Supreme Court yesterday. [...]

Leading the search for a middle ground was the court's newest member, Chief Justice John G. Roberts Jr., who repeatedly suggested that the court could send the case back to lower courts for a narrower challenge to the law as it applies to emergencies such as the one Breyer outlined.

"Presumably the litigation would be very similar to what we've seen in this case," he told a lawyer representing Planned Parenthood of Northern New England, "but it would be focused on the provision that is causing you concern, rather than the statute as a whole."

The lawyer, Jennifer Dalven of the American Civil Liberties Union, urged the court to uphold the appeals court's invalidation of the entire New Hampshire law and leave it to the state legislature to make any changes.

"If this court rewrites it," she said, "it will give a green light to legislatures around the country to pass broad restrictions, and leave it to women and doctors to go to court and be the sole defenders of the right."

Notice that if her health is threatened she's a "girl," but when it comes to getting permission or killing the kid she's a "woman"?

Posted by Orrin Judd at December 1, 2005 8:11 AM

Exactly. Assuming she was not a rape/incest victim, she should be willing to sacrifice her fertility in that situation. She signed (perhaps unwittingly, which is really the whole point) the "I may not be able to have babies later" waiver when she had sex.

Life is tough. If you want to hold on to childhood innocence, here's how you do it: don't make adult choices unless you're ready to face adult consequences. As I tell my own teenaged son, making the tough choices in life is pretty much the definition of growing up.

Posted by: Jeff Brokaw at December 1, 2005 10:16 AM

I'd like to know if that hypothetical has anything even approximating relevance to reality. How long does it take to perform an abortion? It's not as if you can do it in five minutes, as far as I understand. And how many emergency rooms are at all equipped to perform one anyway?

And all because a bunch of dead white men decided that they were going to determine for all time what the abortion law of the land should be.

Posted by: b at December 1, 2005 11:35 AM


Have you heard the oral arguments? Scalia asked if the doctor should even pause to glove up if it's that much of an emergency.

Posted by: oj at December 1, 2005 11:44 AM

oj: Um, and? Scalia likes his hypotheticals, too, just like all the justices. But is this a real issue or not? Has there ever been an actual ER doctor who can testify that he was in such a situation?

Posted by: b at December 1, 2005 11:52 AM

Scalia's smart enough not to make his hypotheticals so absurd. No, the hypothetical they used applies to no one. More important, it doesn't matter--if the situation arose medical necessity is a defense the doctor can raise.

Posted by: oj at December 1, 2005 12:03 PM

"A doctor diagnoses a spike in blood pressure that won't kill the girl but could render her sterile unless she has an immediate abortion."

Hm-mm.....a nurse called in to the Laura Ingraham show and pointed out that this is a fallacious argument. You can't perform an abortion on a woman who has a spike in blood pressure. You have to get the blood pressure stabilized or run the risk of having her hemorrhage to death.

I like Scalia's answer: "Suppose NH sets up a judge, lets call him the Abortion judge, who can be reached 24/7 365. Are you telling me that the 30 seconds it takes to make a phone call are going to put this girl's life at risk? I guess he had better not take the time to put on a pair of rubber gloves either." Thus rendering the whole hypothetical argument irrelevant. The poor little ACLU lawyer stuttered a bit when she tried to reply.

These people want to have the right to kill without the slightest barrier or inconvenience. The eugenics movement founded by Sanger must be very proud at how far they have come.

BTW if the same girl had shown up with appendicitis, her parents would have to give permission to operate. However when killing a baby, I guess it doesn't matter.

Posted by: Jeff at December 1, 2005 1:26 PM