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Sandra D’s Swan Song
It could've been the blues.


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The Supreme Court’s decision today in the New Hampshire parental-notification case is, realistically, the best that New Hampshire could have hoped for under the circumstances. With the Court balanced 4-4 (assuming Chief Justice John Roberts votes with the other conservatives) on the permissibility of abortion regulations, and with Justice Sandra Day O’Connor in the middle, the justices settled for a narrow and unanimous ruling which does little to clarify the numerous confusions surrounding this law. By reversing the lower court and sending it back for further consideration, the decision preserves the status quo while the Court is in transition, and the federal courts are reined in without the Court’s abortion jurisprudence being changed.

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The Court, in a unanimous opinion by Justice O’Connor, with no dissents or concurring opinions, said that the lower court went too far in striking down the law, when the law could be constitutionally enforced in almost all circumstances. The decision throws out the overreaching decision of the federal appeals court and sends it back for reconsideration, and it suggests that New Hampshire, sooner or later, will be able to require parental notice for the vast majority of adolescent abortions. The unanimous decision also said that the states “unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy.”

Although the Court did some minimal house-cleaning, the decision does nothing to resolve the standard of review for laws about parental notice of abortion, nor does it alleviate the confusion of the lower courts on this issue. So it leaves in place for the foreseeable future the the mess brought about by the Court.

Citing Casey at one point, the Court said 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’”. But this decision does not go much further in protecting abortion, if at all, than Casey itself did. Again, the status quo, for better or for worse, is preserved.

The potential downside of the decision is that it relies on First Amendment overbreadth cases in discussing the issue of remedy. Abortion advocates will undoubtedly use this to argue that the Court has treated abortion as a First Amendment right. But this surely would have sparked dissent from Justices Antonin Scalia and Clarence Thomas if this were seen as anything like a dictum.

It is ironic that Justice O’Connor wrote the opinion. Perhaps Chief Justice Roberts figured that the only way to achieve a quick, narrow, unanimous decision, was to assign the decision to her–any other author might well have sparked dissents and drawn out the decision for many months. However, Justice O’Connor is the author of the mess that the Supreme Court has caused since 1992 in its abortion decisions, sparking an increasing number of opinions by lower court judges (the most recent by federal district Judge Sandra Beckwith from Ohio in September) expressing a great deal of frustration with the Court’s confusing decisions, and asking the Court to clean up the mess. The Court refused to do so in 2000 in Carhart, and, six years later, it has refused to do so in Ayotte. Justice O’Connor’s confusion has been unanimously preserved in her latest judgment.

Justice O’Connor concludes her opinion with an additional irony that will simply breed more confusion. The New Hampshire statute contains a very clear and explicit severability clause that practically anticipated the federal courts’ potential overreaching. The statute stated that “if any provision…or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications…which can be given effect….” After quoting this, Justice O’Connor says that it is nevertheless an “open question” whether the New Hampshire legislature would want the rest of the statute enforced if the statute were found unconstitutional in a few applications. If that severability clause is not clear and explicit enough for federal judges, what will be? Instead of ordering the lower federal court to implement this clear and explicit expression of intent by the New Hampshire legislature, the Supreme Court adds yet another twist to the confusion.

So lower federal courts will continue to be confused and frustrated, and the Court leaves its growing mess to be cleared up in the future. All the while, the status quo serves the interests of abortion clinics and their advocates by keeping state legislative regulations like parental notice and informed consent bottled up in courts for years.

Wednesday’s decision in Ayotte indicates that there aren’t five justices on the Court who are concerned enough about confused lower court judges and the will of the people expressed through popular legislation to do anything to resolve the confusion. A few days before Christmas, the media reported the story of some practical joker who left a beautifully wrapped package on someone’s door step. Inside was a dead rat. The Court is giving a similar gift to welcome Judge Alito.

Clarke D. Forsythe is attorney and director of the Project in Law & Bioethics at Americans United for Life, Chicago.



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