I re-listened to part of the Ayotte orals and reference was made to the medical emergency exception found in Casey. The law there defined the term as "[t]hat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." The plurality noted:
Petitioners argue that the definition is too narrow, contending that it forecloses the possibility of an immediate abortion despite some significant health risks. If the contention were correct, we would be required to invalidate the restrictive operation of the provision, for the 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. ...
While the definition could be interpreted in an unconstitutional manner, the Court of Appeals construed the phrase "serious risk" to include those circumstances. Id., at 70l. It stated: "[W]e read the medical emergency exception as intended by the Pennsylvania legislature to assure that compliance with its abortion regulations would not in any way pose a significant threat to the life or health of a woman.
"Invalidate the restrictive operation of the provision" suggests, especially given the law at issue here has a severability clause, no need to overturn the whole statute. Also, "serious risk" is interesting since the Supreme Court has been unclear as to what exactly the "health exception" requires.
Suggestions were made in the Ayotte orals that the total absence of an exception is much worse, and one reason for overturning the statute is to underline the point. Also, apropos the South Africa same sex marriage case, there are various ways to word such a health exception. This should be left to the legislature. The latter issue might warrant a remand to narrow the question, the former provides a reason for overturning.* And, unlike Casey, this is not just interpreting phrasing -- it would requiring adding an exception in.
Tricky. If nothing else, I think Casey only helps Planned Parenthood to a degree. As to the so-called 95-10 solution, interesting, but I do not buy that it would reduce that many abortions. Give me a "health" exception (that covers seriously deformed fetuses), I will accept no third trimesters. The parental notification thing bothers me, but a federal law is tempting. Again, their claims seem overblown. So, it seems too good to be true. And, a bit too soon to say.
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* If the law continues to be held in abeyance, it is unclear how the remand would really hurt Planned Parenthood, except (1) added time and resources and (2) a stronger anti-abortion voice on the Court when the issue eventually comes back. Perhaps, PP hopes the current course does away with the statute, which the state has yet to re-enact with a health exception. And, the threat of overturning whole statutes is a sizable weapon to have. But, would a narrow remand really take it away? If so, how much?