Bench Memos

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Further Assessment of Ayotte


On further reflection (and benefiting from discussion with folks more knowledgeable than I am about the state of play of abortion litigation), I now see the Ayotte ruling as a significant defensive victory for pro-lifers, especially with respect to parental-notification statutes. The ruling should make it much tougher, if not ultimately impossible, for the abortion lobby to invalidate parental-notification statutes in their entirety because of supposed constitutional problems (or, more precisely, because of conflict with Supreme Court rulings) in a small fraction of their applications. The same should be true for a range of other abortion regulations where the alleged constitutional problem does not go to the heart of the regulation’s application. As a result, there should be little reason for the abortion lobby to challenge these regulations in litigation.

I am less optimistic that the ruling holds any promise for partial-birth abortion statutes. There is a good reason that Nebraska did not seek a narrower remedy in Stenberg v. Carhart: A ruling that barred the Nebraska statute from applying to cases in which the abortionist determined that partial-birth abortion served the health interests of the mother would effectively have eviscerated the statute.


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