an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today the Supreme Court will take up Ayotte v. Planned Parenthood of Northern New England, its first significant abortion case in five years. On the surface, the case concerns whether New Hampshire's parental notification law must include an exception for emergencies when a minor's health is at risk. Beneath the surface, however, are two key issues that will determine the direction of abortion regulation in the future.
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.
The fundamental problem here, when we're talking about a doctor's decision about the "health" of the woman, is that because of the Doe ruling issued on the same day as Roe v Wade, that doctor's judgement is utterly unreviewable. Which has left doctors free to declare abortions necessary due to such health risks as being upset over not getting the abortion.
In practice, then, the health exception is all consuming, allowing no real regulation at all. It's a fraud, nothing but a nice public relations front on abortion on demand.