Again, It’s Abortion

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Justice Harry Blackmun, the author of the U.S. Supreme Court’s most disputed decision of recent decades, often said the controversy over Roe v. Wade would follow him until his death–and beyond.

The 1973 opinion declaring a constitutional right to abortion “will be regarded as one of the worst mistakes in the court’s history or one of its great decisions, a turning point,” he said soon after the decision. It certainly has proved to be a turning point.

Abortion has remained the most divisive and intractable issue before the court. The abortion ques­tion also has come to dominate public debate about the Supreme Court. Over more than three decades, the main question asked of each new nominee to the high court invariably is: Will the newly named justice uphold or reverse Roe?

Precedent Or Not?

The Senate confirmation hearing for the new chief justice, John G. Roberts Jr., kicked around the question of whether Roe is a settled precedent, a “su­per­precedent” or, perhaps, a shaky precedent. Roberts was willing to call abortion rights a “settled precedent,” since it was affirmed in 1992. But he stopped short of calling it secure.

This month, for the first time in five years, the court will revisit the abortion question just as the makeup of the bench is undergoing significant change. Justice Sandra Day O’Connor, who provided the crucial fifth vote to uphold the abortion right in 1992 and to strike down a state law prohibiting “partial birth abortions” in 2000, is retiring. Her successor could take the Roberts court in a new direction.

On Nov. 30, the court is set to hear the case of Ayotte v. Planned Parenthood, No. 04-1161, which, at first glance, looks to present a relatively minor question.

Two years ago, New Hampshire joined 35 other states in requiring that a doctor notify at least one parent of a girl under age 18 before performing an abortion. The law says a judge may waive this requirement if the minor is mature and it would be in her best interest not to notify a parent. However, the statute makes no exception for medical emergencies where an immediate abortion is needed to preserve the health of the young woman.

New Hampshire Pushes The Issue

Repeatedly in the past, the Supreme Court has said states may not regulate abortion in a way that threatens the health of pregnant women. For that reason, a federal judge blocked the New Hampshire law from taking effect, and the 1st U.S. Circuit Court of Appeals at Boston declared it unconstitutional on its face.

The three-judge panel said the statute as written “forces physicians either to gamble with their patients’ lives” by delaying an emergency abortion, or to gamble with their own lives or livelihoods by performing the abortion before notifying a parent. Violators can be criminally prosecuted or sued. 390 F.3d 53.

Nonetheless, the justices voted to hear the appeal filed by New Hampshire’s attorney general, Kelly Ayotte. She challenged the authority of a federal court to void such a law on its face.

Ayotte argued that an entire state law that is otherwise constitutional should not be struck down because of the “hypothetical case” of a teenager facing a medical emergency. Should such an emergency arise, the statute’s “judicial bypass section provides adequate protection,” she said. A judge is supposed to be available 24 hours a day, seven days a week to hear those young women who seek a waiver.

Bush administration lawyers joined the case on Ayotte’s side, arguing that the fate of the federal Partial Birth Abortion Ban Act of 2003 also is likely to turn on whether a health exception is required. In July, the 8th U.S. Circuit Court of Appeals at St. Louis struck down that law because it forbids doctors from using the dis­puted dilation and extraction, or D&X, procedure, even if medical experts say this is the safer method of performing second-term abortions. Carhart v. Gonzales, 413 F.3d 791.

The New Hampshire case could signal a broad change in how abortion disputes are litigated. Since Roe, federal courts have swept aside laws that limited abortion because these measures might endanger the lives or health of a significant number of women. Now government lawyers are arguing that these cases should be litigated on the basis of actual claims by individual women.

Ayotte says that traditional principles of federalism and judicial restraint call for upholding state laws that “can be constitutionally applied” in some instances. A pa­ren­tal notification requirement itself is constitutional, she noted.

Constitutional Concerns

However, supporters of abortion rights fear that wom­en and their doctors would be confronted with unconstitutional restrictions.

“This invites legislatures to write more restrictive laws and then say to women, ‘You have to go to court woman-by-wom­an to get an exception,’ ” says Jennifer Dalven, a lawyer for the American Civil Liberties Union’s Reproductive Freedom Project in New York City.

“That’s the consequence of what they are proposing. This is certainly not just a case on whether kids in New Hampshire can get abortions without telling their parents,” says Dalven, who will argue the case.

“I also don’t see how this is a better solution: Wait for a woman to have a medical emergency and then tell her doc­tor on a Saturday afternoon to get a court order,” Dalven says.

“This way would have judges amend the law. Why not require the legislature to amend the law?” she asks.

However, U.S. Solicitor General Paul Clement says all such challenges to abortion laws should proceed on an as-applied basis, not voiding the law entirely.

In the Partial-Birth Abortion Ban Act, Congress said the procedure is “never medically indicated” to preserve a woman’s health.

Doctors and medical experts disagreed and testified before a federal judge in Nebraska that these intact removals are less likely to cause bleeding and infection.

A district judge and the 8th Circuit struck down the law on its face. And the U.S. Supreme Court is likely to take up the federal ban on partial-birth abortions later in this term.

Revisiting Racketeering Case

Meanwhile, the court will hear, for the third time, a case testing whether violent acts during abortion protests can violate the federal Racketeer Influenced and Cor­rupt Organizations Act. Scheidler v. NOW, No. 04-1244.

In 1986, the National Or­ganization for Women sued Operation Rescue and Joseph Scheidler, alleging these anti-abortion protesters conspired to shut down abortion clinics using force and threats. A Chi­cago jury ruled the abortion protesters had used force, including four acts of violence, and a judge imposed a nationwide injunction barring the protesters from approaching abortion clinics.

Ever since, the appellate courts have been struggling over whether these acts violate the anti-racketeering law. In its first ruling, the court said in 1994 that the protesters could be held liable even if they did not act out of an “eco­nomic motive.” However, in a second ruling in 2003, the court all but overturned the verdict and said the protesters cannot be guilty of extortion and racketeering because they did not seek to “obtain property” from the clinics.

But the 7th U.S. Circuit Court of Appeals at Chicago refused to throw out the verdict and pointed to the acts of violence. Now the case is a classic test of statutory construction in which a long sentence with several clauses can be read in different ways.

The 1946 Hobbs Act, 18 U.S.C. § 1951, is titled “Interference with commerce by threats or violence.” By one reading, the law applies to anyone who uses or threatens physical violence to obstruct commerce. A second reading says it applies only to violence for the purpose of robbery or extortion, which entails obtaining property.

The Bush administration says the second, narrower reading is correct. The Hobbs Act has no “freestanding prohibition against physical violence” as a means of obstructing commerce, Clement told the court.

Duke University law professor Erwin Chemerinsky, who will represent NOW, says the plain words can be read to apply to the use of violence to shut down a legitimate business. “You don’t often see the United States taking a narrow view of a federal criminal statute,” he says. “I don’t think the administration wanted to be on the opposite side of Operation Rescue.”

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times and writes regularly for the ABA Journal.

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