Ayotte

JB

Earlier cases from Roe onward have held that states must allow women to preserve their health when it is threatened, even in the late stages of pregnancy; Stenberg v. Carhart, the 2000 case that struck down Nebraska's partial birth abortion statute, holds that states may not require women to adopt less safe methods of abortion when professional medical opinion holds that a safer method is available. From these precedents, it might seem that New Hampshire must include an exception from parental notification requirements where there is a health emergency as diagnosed by a competent physician. Were the Supreme Court nevertheless to uphold the New Hampshire law, one way it might do so is by changing the doctrinal understandings of the importance of health, or by offering a narrow view of what types of health risks implicate the abortion right. That decision, in turn would have significant implications for future abortion regulations that make limited or no exceptions for a pregnant woman's health, that trade off health concerns for other goals, or that require women to adopt less healthy methods for terminating their pregnancies. In particular, such a change in constitutional doctrine might affect the constitutionality of the 2003 Federal Partial Birth Abortion Act. That act includes a declaration by Congress that partial birth abortions are never safer than other methods, but that conclusion is disputed within the medical profession. See my earlier discussion here.

The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

For these two reasons, but particularly, the second, Ayotte promises to be a major abortion decision.