What Does the New Supreme Court Decision on Abortion Mean?

You may have heard about the latest Supreme Court ruling on abortion: Ayotte v. Planned Parenthood of Northern New England. Unusually for an abortion case, the decision was unanimous.

New Hampshire had passed a law requiring that minors seeking to obtain an abortion notify their parents in writing that they intend to do so. The law does not require parental consent. Nevertheless, the First Circuit Court of Appeals struck own the entire statute as unconstitutional under existing Supreme Court precedent. The Supreme Court reversed, but on a limited basis.

Signaling from the beginning that it was not going to be upsetting any apple carts, the opinion -- penned by Justice O'Connor begins, "[w]e do not revisit our abortion precedents today." Rather, the only issue considered by the Court is the "remedy." That is, the Supreme Court considered whether striking down the entire statute was necessary because some parts of it were deemed unconstitutional. The unconstitional part of the statute as the First Circuit saw it was that the statute failed to create an exception to protect the health of the minor mother seeking the abortion. Because Supreme Court precedent requires a health-exception, the First Circuit struck down the entire statute. Not so fast, Justice O'Connor wrote (in what is likely her last vote on an abortion case), that is too drastic. The solution must fit the "problem." So, the Supreme Court has sent the case back to the First Circuit so it can craft a "remedy" that fits the problem. In other words, it will be the job of the First Circuit to strike down the statute only as it would apply to minors seeking abortions who may have some health issue that waiting for consent may exacerbate. As for minors seeking abortions who do not have a health crisis facing them, they will be required to provide written notice.

We will see what the First Circuit does with this issue, but the Supreme Court certainly suggests that the consent requirement should stand for the vast majority of cases and that it is only a "very small percentage of cases" that is constitutionally problematic.

On a whole this is at least a minor victory for pro-lifers. The Court affirmed the state's strong interest in requiring parental consent for minors seeking abortions. Moreover, practically speaking, the effect of this ruling may eliminate some of the back-and-forth gamesmanship between the courts, litigants, and legislatures. Because the statute will likely apply to most of the minors seeking abortions, the legislature is unlikely to revisit the issue and past a more targeted statute intended to fix whatever constitutional defect the federal court had previously found to strike down the entire statute. In circumstances where a statute is struck down in its entirety because only some parts of it are constitutionally problematic legislatures often have to guess how and whether the new legislation they pass fix the problem. If the new legislation gets something wrong, the federal courts may strike it down too and the entire process would have to begin anew. The problem with the back-and-forth that this new case may remedy is, as the Court now recognizes, that if and until the state passes a new statute that meets all possible objections, the state is prevented from doing something that it has a very good reason to do -- require that minors not faced with a health crisis notify their parents that they are thinking of undertaking a very serious and life-changing medical procedure. As a result, state will likely have a freer hand in passing abortion legislation, perhaps even prohibitions on partial-birth abortions, that has been deemed legitimate by the Supreme Court in other cases.

Trying to read anything else into the opinion would be like trying to read tea leaves. But I will say that one reason the Supreme Court may have taken this technical approach is because Justice O'Connor will soon be replaced by Justice Alito (barring some huge political upset). It may surprise some to learn that the Court can be so practical, but such considerations are part of their proceedings. So, I would say that the Court's reluctance to "revisit [its] abortion precedents" may only be for a time.


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