Thursday, January 19, 2006

The Ayotte Case - a Small Step

On January 19, 2006, the Supreme Court released its opinion for Ayotte, Attorney General of New Hampshire vs. Planned Parenthood of Northern New England et al. The case was argues in late November and achieved a unanimous opinion of the Court. Sandra Day O’Connor wrote the opinion; very likely one of her last as a Supreme Court Justice. The Ayotte case concerned a New Hampshire statute: the Parental Notification Prior to Abortion Act. The Act provided the criminal and civil penalties against physicians performing an abortion without 48-hour written notice of the abortion to a parent or guardian. There were exceptions to the notification requirement based on an eminent threat to the lift of the pregnant minor, a notice from the parent that they have already been notified, or a judicial bypass in which a judge can approve the abortion without parental notification. The judicial exception required that a judge be available for consultation for a consultation by a pregnant minor 24 hours a day, 7 days a week. During oral argument, the judges had made a great deal out of this judicial bypass asking repeatedly why a health problem for the minor could not be dealt with through a quick phone call to a judge. But in the end, the Court decided the case on other grounds.

The lower court had declared the entire act unconstitutional and permanently enjoined in forcing the act. The district court held “that the act was invalid for failure, ‘on its face…to comply with the constitutional requirement that laws restricting a woman’s access to abortion must provide a health exception.’” The lower court thought that the judicial bypass was not expeditious enough for a “medical emergency.” The district court also thought that the difficulty of determining whether or not a medical condition was life threatening would also be chilling for physicians trying to utilize the life threatening medical condition exception. The Court of Appeal for the First Circuit upheld the decision of the district court. The Supreme Court of the United States then granted cert to hear the case. In the court’s opinion, the Court did not revisit the whole question of abortion or the states’ ability to regulate abortion. Instead, the Court proceeded from the position that the entire appeal could be disposed of on a semi-procedural ground.

Writing for the unanimous Supreme Court, Justice O’Connor identified the Court’s general attitude toward declaring statutes unconstitutional: Generally speaking, when confronting a constitutional flaw in the statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force,…or to sever its problematic portions while leaving the remainder in tact…” The Court noted that here it might have been possible to do just that, to enjoin only the unconstitutional applications regarding the few instances in which there was an imminent threat to a minor’s health that would be interfered with by a 48-hour delay for parental notification or even a short delay for judicial bypass. The Court noted that there was a possibility that the statutory intent of the New Hampshire legislature would show that they would rather have no statute at all than have part of it enjoined and part of it active. As a result, the case had to be sent back to the lower court to determine which was more appropriate, a limited injunction or the elimination of the entire statute. There was also a question expressed by the respondent concerning the confidentiality of the judicial bypass provision. The Court concluded by saying, “Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the act’s life exception. We therefore need not pass on the lower court’s alternative holding. Finally, if the act does survive in part on remand, the court of appeals should address respondent’s separate objection to the judicial bypass confidentiality provision. The judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.”

What should we think of the Court’s opinion in Ayotte? Why were they able to obtain a unanimous decision in this case? The news media have been indecisive in reporting this matter. To some degree, they have emphasized that it is an upholding of abortion. To some degree, they have been concerned that the Court did not agree with invalidating the entire statute. In general, there has been some perplexity concerning exactly why this case came down the way it did.

Ideally, of course, it would have been nice if we had obtained an opinion from the Supreme Court stating that unborn human beings are human beings, and that as such, any statutory scheme which contemplates the taking of their lives with malice of forethought without legal justification or excuse violates the equal protection clause of the Fourteenth Amendment and the natural law/common law right to life that all human beings have and that is incorporated in the Constitution of the United States by the Ninth Amendment of the Bill of Rights. Such a holding would have invalidated all statutory schemes that allow abortion without special legal justification of excuse. But there is probably no chance of getting a ruling like that out of this Supreme Court. Five of the Justices on the Supreme Court favor abortion. The remaining four have generally said in their comments that they believe whether or not abortion is legal is an issue for the states. If they believed that there was a right to life for the unborn, they could not merely make it an issue for the states. So it is unlikely that we will get an invalidation of abortion law out of this Court anytime in the foreseeable future apart from a major shift in the gestalt of the majority of the justices. Even if Judge Alito is confirmed on the Court, that enough will not change the balance on abortion. Alito is likely is likely to join the block of justices that believe that abortion should be a matter for the states. But he would not produce an automatic majority in favor of returning abortion to the states. Justice O’Connor whom he replaces has not wanted to return abortion to the states, but there are still five remaining justices who believe that abortion should be a federal constitutional right.

Nevertheless, I think that there is some reason for abortion foes to be happy about Ayotte. In the past, the federal courts, including the Supreme Court of the United States, have consistently ignored the rules that they have for evaluating the constitutionality of statutes and for the remedies that flow from evaluating the constitutionality of a statute in the context of abortion cases. The courts have consistently acted to hear cases regarding statutes limiting abortion, even though there was no real case or controversy involved since the statute had not yet been applied to sanction anyone criminally or civilly Instead, the federal courts had developed a special habit of allowing people to challenge the constitutionality of entire statutes regulating abortion through the mere allegation that the statute in some way created a chilling effect to an abortion provider’s willingness to provide abortion on demand. The courts have then consistently invalidated entire statutes rather than limiting their injunction to the allegedly unconstitutional applications of the statute. A good example of this has been the way the federal courts have treated the partial birth abortion statutes passed in numerous states. The federal courts have uniformly allowed challenges to those acts based merely upon the alleged chilling effect of the statute, even though no one had ever been prosecuted for providing a partial birth abortion. For almost any other kind of statute, the courts would have wanted to see how the statute was actually being applied, and would have asked the question of whether it was unconstitutional as applied or would have wanted at least a genuine case in controversy before they opined on the constitutionality of the overall language of the statute. So the courts did not follow their normal approach to the constitutionality of statutes in the partial birth abortion context. Then when the statutes were found by the court to threaten or chill some possible abortions that the court thought must be allowed under the Supreme Court’s precedence, they did not merely enjoin the states from misapplying their law. Instead they invalidated the entire statute. The Supreme Court of the United States upheld one such wholesale elimination of a statute in Stenberg vs Carhart 530 US 914 (2000).

Here in the Ayotte opinion, the Supreme Court turns back to applying its special rules regarding remedies for an unconstitutional application of a statute even in an abortion case. The Court does not admit that it is reversing a past standard. Instead, they distinguish the cases in which statutes were wholesale invalidated by saying that the states had not asked for the remedy of a partial injunction in those cases, but had instead wanted no statute rather than part of a statute.

What is important here is that the Court has decided to apply technical rules to limit the outcome in a case regarding a statute limiting abortion rather than using the kind of wholesale statutory invalidation that has been common heretofore. While this is only a small improvement, it is nevertheless an improvement. If the courts begin “playing by the rules” even in abortion cases, this is going to result in a higher probability that statutes regulating abortion will be upheld. It is also going to mean that as in the New Hampshire case, it will be possible for statutes to have some effect rather than no effect at all. While this is not a revolutionary watershed, it is a beginning. It is like the first drop of water from an icicle as the weather begins to change from the dead of winter to the brightness of spring. It is a sign of hope that perhaps with respect to American law regarding abortion, it will not remain “always winter but never Christmas.” While we may have a long battle ahead of us with not only the Supreme Court but the states and public opinion, it may be that perhaps the spell of abortion is finally beginning to weaken.

I suspect that this new and novel result is largely because of the new influence of Justice Roberts on the High Court. Roberts is apparently very much a technician who has great expertise in the intricacies and details of the law. The disposition of a case based upon technical grounds like this is the sort of thing that Roberts is likely to engineer as a compromise among the various justices. Here it pleases the liberal justices because no wholesale attack is made on abortion precedent. It pleases the more conservative justices because abortion is inched back toward being an issue which is considered under the normal rules of the law rather than an issue which is given special favor and accorded irrational and emotional power over the courts. In short, while the Ayotte case seems like a very small matter, I think it is, in fact, a sort of a victory. We’ll have to wait and see exactly where things go from here. But to return again to the Narnia metaphor, perhaps this is a shadow of a rumor that with respect to abortion “Aslan is on the move.” I hope and pray that it is so, and that God will turn the hearts of our people back to Him about abortion and about law.

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