There was something unreal about last November’s oral arguments before the Supreme Court in the case of Ayotte v. Planned Parenthood of Northern New England. Last week’s decision from the Court did nothing to dispel this sense. But the brief opinion did offer an excellent example of the absurd state of abortion jurisprudence.
The case had to do with a New Hampshire law that required parental notification before a minor could obtain an abortion. The law contained no “health” exception, and so it was challenged as unconstitutional. A lower court struck down the statute, and a challenge to this ruling was made to the Supreme Court. There were two questions before the Court. First, must this law contain a health exception, and, if so, of what scope? Second, what is the appropriate standard of review for a statute of this sort, when it is challenged as being facially unconstitutional (as opposed to having an unconstitutional application to a specific plaintiff in specific circumstances)?
Unfortunately, the ruling, authored by Justice O’Connor, answered a question the court was not asked and evaded the questions it was asked. The Ayotte ruling remanded the case to the federal district court to determine whether the New Hampshire legislature intended to allow the statute to remain in effect with its assumed unconstitutional applications enjoined (i.e., parental notice would not apply where there is imminent danger to a minor’s health); or, if not, whether the legislature would have preferred no statute to one containing a health exception. In the latter case, the lower court would be expected to invalidate the statute in toto.
In her opinion, Justice O’Connor wrote, “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?” Although the Court said nothing explicitly about whether the statute before them “would be unconstitutional in medical emergencies,” the implication was that it would be. But instead of striking down the law, the Court gave some guidelines for dealing with this: “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.” So the ball’s back in the lower court.
Some commentators have characterized the decision as a pro-life victory. After all, the Court could have continued expanding the application of the notorious “health” exception and could have struck down the law outright. Instead, there is now the possibility that this law, as well as other abortion laws previously held as unconstitutional–some partial-birth-abortion bans for instance–could be upheld in part. Surely this is encouraging, but that this could be counted as a victory only emphasizes the degree to which precedent set by the courts protects abortion laws.
There is continuing debate about what standard of review to apply in “facial challenges” to abortion laws. The “Salerno” standard, which the Supreme Court has routinely applied outside the context of abortion, and was the standard favored by New Hampshire’s attorney general, was not even mentioned in the decision. To strike down a law preemptively under the Salerno standard, “the challenger must establish that no set of circumstances exist under which the Act would be valid” (United States v. Salerno, 1987). Years ago, Justices O’Connor, Souter, and Kennedy conjured up a more malleable standard for abortion cases: The law is invalid if it imposes an “undue burden” on the right to abortion of a significant number of women (Planned Parenthood v. Casey, 1992). But, as Justice Scalia has noted, “undue burden” is not a standard that can be “demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects … the life of a … fetus, and how much one respects … the freedom of the woman who gave it life to kill it” (that’s from his dissent in Stenberg v. Carhart, 2000). The broad application of the phrase “undue burden,” coupled with the “health” exception seemingly without an exception, means that a situation can be conceived of for almost any law restricting abortion that would render the law unconstitutional. This standard has prevented reasonable, commonsense abortion regulations from taking effect for years while challenges make their way through the courts.
The opinion cites two propositions which establish why the New Hampshire law would need a health exception. First, a state “may not restrict access to abortions that are ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” Second, “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.” And so, the reasoning goes, in these cases, parental notification might place an “undue burden” on the right of that minor to preserve her health.
The New Hampshire law was not designed to give parents veto power over their daughter’s decision to have an abortion, but to further their daughter’s health by ensuring that–whatever she ultimately decides–the best medical care is available, the girl’s medical history is accurate, follow-up appointments are kept, an adult familiar with the girl’s health is present to spot symptoms of complications and to provide her with emotional support, and so forth. If a pregnant minor were really faced with a health crisis, wouldn’t that be all the more reason to notify her parents at once rather than performing a significant surgical procedure behind their backs? Requiring a health exception to a statute whose purpose is furthering health might seem ridiculous, but the courts don’t take any chances when it comes to protecting abortion.
Breyer’s Unhealthy Hypothetical
As it is, the second of these propositions–that in the time it might take to notify a parent, or to obtain a judicial bypass, a girl’s “health” might be put in danger–came from the uncontested testimony of an abortion provider and is the crux of Planned Parenthood’s lawsuit. Helpfully trying to substantiate Planned Parenthood’s position during oral argument, Justice Stephen Breyer posed a hypothetical situation which, unfortunately, became the basis for much of the subsequent discussion. He said:
“Let’s imagine a real circumstance: A 15-year-old walks in, at 2 in the morning on Saturday, into the Emergency Room, and the doctor looks at her; she’s pregnant and has this very high blood pressure or whatever, and the doctor thinks to himself, he thinks, “Well, ah, immediate abortion. No question. Immediately deliver the child. If I don’t, I don’t think she’s going to die, but she’ll never have children and he’s thinking that. What’s supposed to happen? [The doctor calls the judicial bypass hotline and gets an answering machine.] … ‘Shall I call your parents?’ ‘No. They don’t know I’m pregnant.’ What’s supposed to happen?”
Far-fetched hypothetical situations are standard fare in law-school classrooms, but they are hardly meant to provide the basis for a Supreme Court ruling. So let’s take a closer look at Justice Breyer’s “real circumstance.”
Since abortion clinics keep regular business hours, during which time it would be easy to contact a judge, Justice Breyer’s scenario needs to be set in an emergency room, and at 2 o’clock on a Saturday morning–an unusual hour and setting, to say the least, for an elective abortion on a minor without a parent. And what would Justice Breyer have ail this pregnant 15-year-old girl? “Very high blood pressure or whatever”–the cure for which, of course, is an abortion. Otherwise, the girl might lose her fertility. The point is, this is not supposed to be a “real circumstance,” and it doesn’t need to be. Justice Breyer needs merely to conjure up a conceivable situation of this sort–perhaps this one isn’t, but it hints at one that is, and that’s enough. Even Justice Breyer’s “real circumstance” is easily resolved, as it is in other states, by instructing the New Hampshire Supreme Court to amend its proposed rules governing judicial bypass so as to make judges’ home phone numbers available to abortion providers and emergency-room physicians.
Three ob-gyns I’ve consulted find Justice Breyer’s scenario ludicrous. There are few conditions a pregnant girl or woman encounters before a late stage of pregnancy which could cause her to “never have children again.” One doctor explained that an inability to have children in the future “usually involves the uterus and cervix and bleeding of a torrential nature necessitating a hysterectomy.” He added, “imperiling fertility in the first trimester could be caused by a pregnancy in the cervix … or an ectopic (tubal) pregnancy. Bleeding can necessitate a hysterectomy.” These conditions are life threatening, however, for which an exception exists in the New Hampshire statute. More to the point, the doctor in either case would not be performing an abortion as defined by statute or in the medical/moral sense of the word. In fact, removing “an ectopic pregnancy or the products from a spontaneous miscarriage” are exempted from the statutory definition of abortion. The intent of treatment in such cases is to save the woman’s life and not to take the child’s life, if indeed the child is still living.
One ob-gyn even managed to come up with a scenario in which fertility could be at risk and high blood pressure could be present–a hydatidiform mole, or molar pregnancy, essentially a growth created by overproduction of placental tissue. Once again, the treatment necessary to preserve the girl’s fertility and life is to remove this cancerous growth, in which either no embryo is present or none could survive. The treatment is not an abortion.
Health-imperiling circumstances that are not also life-threatening may occur, in the estimation of one ob-gyn, in one case out of anywhere from 10,000-100,000, but even these would be later in a pregnancy when the parents would no doubt be aware of the pregnancy.
The federal district court which declared the New Hampshire statute unconstitutional relied on the affidavit of Dr. Wayne Goldner, the only physician plaintiff in the Ayotte case. He listed five conditions that, in his opinion, might “require” abortion to protect the pregnant minor’s health: pre-eclampsia (hypertension and edema), eclampsia (severe hypertension and edema with seizures), premature rupture of the placenta, spontaneous chorioamnionitis (bacterial infection in the amniotic fluid), and heavy bleeding during pregnancy. An amicus brief filed by the American Association of Pro-Life Obstetricians and Gynecologists, Christian Medical Association, Catholic Medical Association et al. thoroughly explains that none of these conditions is cured by an abortion, all require extensive medical care (necessitating parental consent in the case of a minor), and some of them would be worsened by an immediate termination of pregnancy. The brief also describes the accepted standard medical treatment for each case.
Many specialists note that abortion itself is more likely to cause infertility than a health problem existing during pregnancy. Sepsis from a botched or incomplete abortion (or dirty instruments) may necessitate a hysterectomy. The uterus could be perforated or the cervix damaged permanently. Endometritis caused by aggressive curettage of the uterine lining, leaving scar tissue, can result in infertility. How many minor girls, isolated from the care and guidance of their parents will be aware of that?
Such is the situation of abortion law today. Even the slightest of regulations can be declared unconstitutional for the sake of the most farfetched objections. Legislatures still do not know if a medical emergency exception has to cover the breadth of Doe’s capacious “health” exception, and trial courts still do not know what the proper standard of review is for such laws. The Supreme Court passed up an opportunity in Ayotte to fulfill the promise made in Planned Parenthood v. Casey to allow states greater leeway in crafting reasonable regulations on abortion. What could be more reasonable than parental involvement in an abortion decision when a minor daughter’s health is at risk? Instead, on the basis of one abortion provider’s dubious claims, the Court sidestepped the important constitutional questions and left the law murkier than it had been before. In other words: vintage O’Connor.