Abortion: narrowing the focus
on Nov 30, 2005 at 1:16 pm
The Supreme Court found itself Wednesday searching creatively for narrow ways to decide two abortion cases — the first to be heard by the Court in five years and the first to be heard by the new “Roberts Court.” In the process, the Justices left the distinct impression that no grand pronouncements on abortion rights are likely to emerge at this point in the history of that searing culture war.
In one case, the Court was looking for a fairly easy way to bring to an end the nation’s longest-running abortion case — a 19-year marathon over blockades seeking to shut down abortion clinics (a dispute that has been to the Court twice before). In the other case, the Justices were trying to fashion the actual wording they would require in a lower court order that would preserve the right of pregnant teenagers — but only in truly emergency medical situations — to obtain an abortion without notifying their parents.
Roe v. Wade and its fate never got mentioned. There was not the slightest hint of any agitation within the Court to sharply narrow abortion rights, and certainly no sign that Roe itself was in jeopardy — at least with this combination of Justices. Instead. the Court appeared to be dealing with the new cases as if abortion rights at this stage had become primarily a matter calling for technical legal precision.
The new Chief Justice, John G. Roberts, Jr., contributed to that impression, in the first comments he made or questions he asked about abortion in his brief career as a judge. In the case about parental notice laws for minors seeking an abortion, Roberts said that, rather than making an across-the-board challenge to the law, perhaps a better approach would have been for doctors to bring a “more focused” challenge to the adequacy of emergency procedures available to teens who did not want to tell their parents. And, in the clinic blockade case, Roberts suggested that the Court should not reach out to decide questions not necessary to resolve that particular dispute.
The flow of the arguments in Ayotte v. Planned Parenthood (04-1144), the New Hampshire minors’ case, and Scheidler v. NOW (04-1244, along with 04-1352), the blockade case from Illinois, appeared also to be well suited to the cautious approach that Justice Sandra Day O’Connor has long brought to abortion cases. In the New Hampshire case, she asked how a flat ban on enforcement of the parental notice law could be “narrowed to focus on the problem” of health emergencies for pregnant minors. And, in the blockade dispute, she sought assurances that the Court could finally end that case without making much significant new law on stopping violence as a tactic in abortion protest.
But her participation this time had a hint of unreality to it. Because of the uncertainty about how much longer O’Connor will be serving on the Court, and the uncertainty about when these two cases will actually be decided, rulings may have to come out without her or be postponed for reargument later especially if the Court turns out to be closely divided and her vote would make a difference.
There is, of course, almost no chance that the Court could wind up with unanimous rulings in either case, however narrow the outcome. But the task of deciding them may be somewhat easier than might have been supposed. Justice Antonin Scalia, the Court’s most vociferous opponent of abortion rights, was not heavily involved in the hearings and, when he did take part, was noticeably mild in his comments or questions.
Of the two cases, the New Hampshire minors’ case is probably the more significant, since the blockade case has been fairly nearly exhausted in terms of major questions. But, at Wednesday’s hearing, the New Hampshire case seemed also to ebb in significance: the two central questions it raises were largely avoided as that argument progressed.
The first question in the Ayotte case tests whether the Court is prepared to make it more difficult to bring challenges to new abortion restrictions before those laws take effect — so-called “facial challenges” to the law as written, not as actually applied in real-world situations. For years, the Court has used a more relaxed standard, allowing challenges to new abortion laws to succeed even if there is no proof that they would always be unconstitutional, in all circumstances, so long as they would impact a significant number of women. Both the state of New Hampshire and the Justice Department, in support, wants the Court to apply the same hard-to-prove standard for abortion cases, too.
But, while there were a number of exchanges about this issue, none of the Justices said or implied that deciding this issue was critical to the outcome of the New Hampshire case. It appeared, in fact, that the Court might simply elide the issue, seeing this particular dispute to be only about the scope of an injunction to deal with emergencies for pregnant teenagers.
The other major issue in that case is whether an abortion restriction is always unconstitutional if it does not contain an exception to protect the health of pregnant women. The Court has never said that, but lower courts have. On Wednesday, however, it appeared that most members of the Court were simply assuming that there had to be a health exception at least when a true medical emergency confronted a pregnant woman, especially when she is a minor. Some of the Justices seemed concerned about just how to word the kind of health emergency that had to be accommodated, but even they were not suggesting a formulation could not be found to deal with actual emergencies.
The Ayotte case was not well argued by New Hampshire’s attorney general, Kelly A. Ayotte, who seemed unprepared to answer some of the tougher questions about the case. She went to unusual lengths to suggest that an emergency situation could always be handled adequately under the state law, even though it provides no health exception whatsoever. Her office, she said, would give doctors assurances that they faced no legal woes if they performed an immediate abortion in an emergency, without telling the minor’s parents.
Solicitor General Paul D. Clement was adequate in his presentation for the government, but his abbreviated argument seemed to lack a clear focus. He seemed entirely prepared to accept an outcome that would bar enforcement of abortion restrictions in cases of genuine health emergencies.
Jennifer Dalven, the New York lawyer for the challengers in Ayotte, kept her argument tightly focused on a primary point: the Court itself should simply invalidate the New Hampshire law, and leave it to the state legislature to make constitutional repairs to it. She was not entirely successful, however, in persuading some of the Justices that. in some health emergencies for pregnant teens, there is siimply not a minute to lose before a doctor has to decide for or against performing an abortion.
The argument in the blockades case showed the Justices in a mood to concede that perhaps they had not been sufficiently clear in the way they decided that case the last time it was before them, in 2003, but they were unwilling to accept the suggestion that the Seventh Circuit had simply disobeyed the result of that case when it kept the prolonged case going for another round of litigation. Justice O’Connor, for example, told a lawyer for the blockaders, Alan Untereiner of Washington, D.C., that he should not dwell on an argument that the Circuit Court had defied the Supreme Court. It was
too “disturbing,” she said, to contemplate that possibility, so she recommended he move on to other challenges.
The Court seemed most inclined to cut the case off by limiting the right of private parties — like clinics — to seek a court injunction to enforce the federal anti-racketeering law (the law used by the clinics to obtain an injunction against the blockaders).
Lisa S. Blatt, an assistant to the Solicitor General (in the case as amicus supporting the effort to end the case), said that was the issue was the “more squarely presented” in the case, rather than the scope of the Hobbs Act as a remedy for violence against clinics, or the issue of the meaning of the Court’s 2003 decision in this case.
Erwin Chemerinsky, a Duke law professor representing the National Organization for Women and the Illinois clinics that brought the case in 1986, made a creative effort to keep the case alive, but did not appear to have won over the Court in favor of further proceedings.
