Today, the Supreme Court heard oral arguments in Ayotte v. Planned Parenthood.  This is the first abortion-related case to go before the Court in five years. If the Court rules in favor of the state the ruling will assault women’s reproductive freedoms and undermine guarantees written into law for the protection of women’s health. This bill is often spoken of as being a “parental notification” bill. It’s so much more than that.
Ayotte v PP, Not About Parental Notification

Today, the Supreme Court heard oral arguments in Ayotte v. Planned Parenthood.  This is the first abortion-related case to go before the Court in five years. If the Court rules in favor of the state the ruling will assault women’s reproductive freedoms and undermine guarantees written into law for the protection of women’s health. This bill is often spoken of as being a “parental notification” bill. It’s so much more than that.

There’s another important issue at stake in this case. Planned Parenthood of Northern New England challenged New Hampshire’s parental notification law before it could even take effect, claiming the state’s failure to make an exception for medical emergencies would impose an “undue burden” on many young women seeking abortion. If the Court rules in favor of the state it’s possible that the next time Planned Parenthood acts to protects the reproductive freedoms of women from an unconstitutional law they’ll have to do so after the fact rather than before.

The abortion case the Supreme Court will hear this week: A short primer

The case involves a New Hampshire law that prevents doctors from performing an abortion on a teen until 48 hours after a parent has been notified, even if this would mean putting the patient’s health at risk. The law includes an exception allowing an emergency abortion when necessary to prevent the teen’s death, but contains no exception where it is necessary to protect her health – and it was struck down by the lower court for that reason.

You may hear the case described as a “parental notification” case, but it is far more than that.  Two questions are before the Court in this case, and the outcome of either could radically change the law on abortion:

       

  1. Whether an abortion regulation must contain an exception to protect a woman’s health.

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  2. What standard courts should use when considering challenges to an abortion regulation before it has taken effect (a “facial” challenge).

The answer to the first question should be easy, but is in doubt given changes in the Court’s makeup.  The Supreme Court held in Roe v. Wade, and reaffirmed in Planned Parenthood v. Casey in 1992, that the government may not place a woman’s health at risk when erecting barriers to abortion.  Just look at what the Court said in Casey: “[T]he essential holding of Roe forbids a State to interfere with a woman’s choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health.”  But the state of New Hampshire, backed by the Bush Administration, is asking the Court to ignore those holdings and uphold an abortion law that lacks any health protection.  Their position would allow the government to forbid doctors from putting their patient’s health first – when that patient is a woman seeking an abortion.  If the Court agrees with the state and Bush Administration, it would leave women vulnerable to serious medical harm, such as permanent damage to major organ systems, fluid in the lungs, the spread of infection throughout the body, loss of vision, permanent loss of fertility, and chronic pain.  

The second issue to be decided in Ayotte, what standard courts should use when evaluating a facial challenge to an abortion, is also of tremendous importance.  The Court in Casey set the current standard – an abortion law can be declared unconstitutional before it takes effect in order to avoid harm to women.  That is how the New Hampshire law is being challenged, and how most abortion laws are challenged.  But the state and the U.S. government are arguing for a new standard under which a facial challenge would be virtually impossible to bring (because the challenger would have to show that there is no set of circumstances in which the law could be constitutionally applied), which would mean that women like those in New Hampshire would be forced to wait until they have been injured before they could sue to challenge the law.  So in this case, a teen in the throes of a medical emergency–with serious blood loss or even a dangerous infection–would have to go to court to challenge the law before obtaining medical care.  How much sense does that make?  Or think of another example – spousal notice.  If the new standard is adopted, this would mean that if a state passed a law requiring women to notify their husbands before obtaining an abortion, doctors who believed that this would harm victims of domestic violence would not be allowed to try to stop the law before it took effect.  Instead, doctors would have to wait until a woman faced abuse from telling a husband about her intended abortion.

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Women’s Health and Their Right to Choose is in Immediate Danger