Damn I'm Going to Miss Justice O'Connor

I had, and have, a major beef with Justice O'Connor about discrimination based on race. Her decisions, from Croson on down, were largely clueless and insensitive.

But she has always, always, ALWAYS, had a level-head view when it came to women's equality at a practical level, despite her conservativism. Even when that level-head caused her to reject arguments that have passionately been claimed to be necessary to protect women.

As she did in today's short, yet pretty clear, decision in Ayotte v. Planned Parenthood of New Hampshire.

The issue in Ayottewas, of course, that bugaboo known as parenal notification. I call "parental notification" a bugaboo because it is the single biggest issue dividing women when it comes to abortion and the divide is NEVER going to be resolved. If polls are to be believed, parental notification is supported by up to 80% of the country and nearly 2/3 of *pro-choice folks* (a group in which I include myself, all strident arguments I've had with knee-jerk abortion rights purists aside). In other words, those that advocate against parental notification are an absolute minority, including among pro-choice folks. Yet that minority manages to raise so much hell over this issue that you'd think parental notification laws were a close call, politically, in any but the "bluest" of blue states. (Hell, it was a very close call here in California just two months ago, even though this state is staunchly pro-choice and Proposition 73, was damned-near transparent in its efforts to sneak in an anti-choice "camel's nose under the tent" definition of pregnancy into our law).

That's why today's decision in Ayotte is, IMO, a rather crafty compromise by Justice O'Connor. There's something in it for everyone, at least on this particular issue.

The New Hampshire statute at issue in today's Ayotte decision requires that a physician obtain proof of parental notification unless, in part, the abortion was necessary to prevent the minor's death. There was no other "health exception" provided by the statute, even for a medical emergency. Planned Parenthood sued and obtained a permanent injunction against any enforcement of the law from the lower court. Notably, however, the lower court provided two, alternative grounds for its finding of unconstitutionality: (a) the law was facially unconstitutional because it lacked a health exception as required by Supreme Court precedents; and (b) it was unconstiutional as applied because it placed an unreasonble burden on doctors' exercise of good-faith medical judgment (since they had to certify that death would take place without the abortion.)

The appeals court affirmed the injunction, citing Stenberg v. Carhart, Casey and Roe and adopting the reasoning of the lower court. It also contended that the statute was void for vagueness, given its criminal law implications where doctors were concerned.

Today's decision is a masterful exercise in "splitting the baby." O'Connor's decision, written for a unanimous court, starts by making clear what the Ayotte case is NOT about:

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response?

I have visions of folks, rightfully feeling desperate and panicked because of the Alito situation, ceasing to read right there. And misreading it as a decision to uphold Roe v. Wade. Unfortunately, reading the very next sentence with a level head makes clear that this is indeed a compromise decision that is not precisely in favor of the most expansive reading of abortion rights:

We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

The decision, notable for its brevity (10 pages), highlights three things that distinguished the Ayotte case from the last "health exception" case, Stenberg v. Carhart in which the "Partial Birth Abortion" statute was struck down because it did not provide for a health exception:

As the case comes to us, three propositions—two legal and one factual—are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.”

Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are “ ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother.’

Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. . .New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks.

On the strength of these three factual and legal pillars, the Court then proceeds to unanimously reverse the Court of Appeals finding the New Hampshire parental notification statute was unconstitutional on its face, and to remand the case back for a trial court evaluation of whether New Hampshire really *will* accept a narrowed law as it represented to the Court; and, if it will, a narrowing and subsequent upholding of the statute.

What can we take from today's decision in Ayotte, in light of this? Well, it's early yet, but here's my take on it after two reads: But it is IMO naive to read today's decision as any real affirmance of Roe or Casey. It isn't, technically; the issue was not presented and the Court declined in its first paragraph to take up the larger issue of revisiting abortion precedent. One can read into the silence an affirmance, but narrowly drawn cases such as Ayotte which do not present broad constitutional questions generally are not precedent for broad constitutional pronouncements.

Yet today's decision sends a message, IMO, nonetheless. It appears to provide a road-map to how those who are indeed anti-abortion can survive Supreme Court scrutiny. It states, essentially, that if a Legislature creates a well-tailored law placing limits on abortion rights, and makes clear during litigation that it will accept narrow injunctive relief if the statute would otherwise be struck down as written, the Courts have a duty to try and uphold the legislative intent in passing the statute; i.e. a duty to snip, cut and paste as necessary to uphold the statute as applied, rather than invalidate it wholesale on a facial challenge. Today's unanimous decision makes that clear to me.

Frankly, that does not bode well for legal challenges that are just beginning for laws like the Child Interstate Abortion Notification Act aka Child Custody Protection Act, still awaiting a Senate vote having been passed *three times* by the House in varying forms. If the critical issue is Legislative intent where abortion legislation is concerned, then the principles of comity and home rule (also discussed ad infinitum in Supreme Court precedent) are going to come into play in a way that jurisprudence before today's decision in Ayotte focusing on upholding Legislative intent would not have suggested.

So like it or not, the real fight *is* still is in the State legislatures. One by one. The theoretical right to an abortion may be preserved in passing in today's decision in Ayotte, but reading today's decision makes clear, at least to me, that the devil is, and remains, in the details at the state level, and that those details are going to be entitled to some judicial deference if it is not impossible to uphold a statute limiting the exercise of abortion rights under an "undue burden" standard. And, since the entire right-wing strategy to undo Roe and Casey is grounded precisely in the belief that the individual states, not the federal government, are where the issue of abortion rights belongs in toto, one can see as much for concern for women in today's Ayotte decision as reason for celebration.

But you have to give it to Justice O'Connor. She definitely split the baby on this issue. She compromised. And it is that type of practical compromise, recognizing that the country itself is still fighting a cultural war on this issue, that made her tenure on the Supreme Court what it is. At least, where issues involving women are concerned.

This case was being watched carefully, both to see what Chief Justice Roberts was going to do with his first abortion case, and to see whether it could be mined for arguments to help shore up the flagging opposition to Judge Samuel Alito's appointment, on the grounds that his anti-abortion votes would be the death-knell to Roe.

Yet as is the case with most Supreme Court decisions, there's not a lot of political traction relating to either of these justices that one can find clearly on the face of the decision itself.

(P.S. I think O'Connor is 100% right on the question of whether or not children have a right to have abortions without the knowledge of at least one of their parents: they don't. Nor should they. I would be dishonest if I did not admit to my own biases here. But I have never made a secret about where I come down on the question of parental notification, legally or morally. IMO, a parent's constitutional right to parent their child in the manner they see fit as long as it is not abusive or neglectful -- a right upheld over and over again by the Supreme Court itself -- trumps a child's non-constitutional right to seek and obtain medical treatment of *any* kind, including an abortion, without the knowledge of her parents, unless there is clear proof that the parents are, or will be, abusive if they are given the knowledge.

Despite this view, I do not believe in a requirement for parental *CONSENT*. Such consent, under the reasoning of both Roe and Casey, cannot be required without trumping a pregnant girl's s constitutional right under existing jurisprudence to make the ultimate decision with her doctor. (A right that O'Connor made clear in Casey does not necessarily include the right to make that decision alone without input from other people.) Now, I am one of those folks that doesn't really care if the knowledge is *before* or *after*, so long as it exists. But I am in the minority on that issue even amongst those supporting parental notification, because my reasons for advocating for parental knowledge are not about trying to impose my personal religious or other negative views about abortion on my daughters. They are, instead, to provide the most rational vehicle make sure, as much as humanly possible, that whatever circumstances resulted in their clearly ill-timed pregnancy as minors *do not repeat themselves*. Whether that's the extremely rare poster-child repeatedly held up by rabid pro-abortion folks (parent or stepparent sexual and/or violent abuse) or the likely day-to-day truth of teenagers "not being either contraceptively-responsible or abstinent" which leads to most teen pregnancies.

But then again, I'm a believer in Old School Black Parenting. I admit this.)