Ayotte Abortion Case: The Supremes unanimously remanded which was listed as a potentially important (with audio broadcast on C-SPAN not too long ago) abortion case involving a New Hampshire parental notification law without a "health" exception (and, arguably, an insufficient "life of the mother" exception plus another more minor problem). The decision, instructing the lower court to try to find a more limited solution than overturning the whole law, is not really surprising. Overall, it should not upset pro-choice groups too much, especially since the law continues to be held in abeyance until final judgment. One does not even know if this foretells how abortion will be treated the next few years, but the votes are there for such baby steps to be the rule.
It is a bit surprising that there was no other opinion. The ruling really made no new law, though it might send a bit of a message to not overturn statutes like this one if possible, even if the law clearly had some unconstitutional applications. O'Connor wrote the opinion, one with a sensitive footnote* on how judicial bypass was necessary because not all teens had parents able to give them the assistance such notification laws intended to provide. The comment was not really necessary, and perhaps was drafted by one of the two liberal clerks someone noted that she had this term.
[Another take, which also suggests why overturning the law might be the sound way to go after all.]
SCOTUSBlog described another decision today that was decided on procedural grounds, the defendants losing the right to take in effect a second bite of the apple, given they already lost the first time around. The alleged facts are particularly sympathetic, but law is law, I guess:
The complaint alleged that Susan Hallock and her husband Richard owned and operated a home computer software business. After Richard's identity was stolen and his credit cards used to purchase online child pornography, Customs agents obtained and executed a search warrant on the Hallock's home and seized their computer equipment. Although the seizure did not result in criminal charges being filed, when the computer equipment was returned much of it was damaged and all the stored data, including trade secrets and account files, was lost. As a result the Hallocks were forced to close their business.
Also, in a third case, Justice Breyer obtained a second vote for his move to do away with peremptory challenges. Interesting idea, but I continue to note the sound reasons offered on the liberal side for why it is a troublesome one.
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* Footnote 2: It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them "to exercise their rights wisely." Hodgson, 497 U. S., at 444; see id., at 450-451 and n. 36 (holding unconstitutional a statute requiring notification of both parents, and observing that "the most common reason" young women did not notify a second parent was that the second parent "was a child- or spouse-batterer, and notification would have provoked further abuse" (citation omitted)). See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).
Interestingly, the Supreme Court never directly decided if parental notification laws (as compared to consent laws) require "judicial bypass" procedures that allow needy or mature teens to resist relying on parents. One (Hodgson) did require it when a two parent notification law was at stake. Others generally dealt with laws that allowed the justices to avoid the issue. This case clearly notes in the emergency situation here that bypass might be necessary.
But, this footnote appears broader in scope -- implying at least sometimes that a bypass is required "a loving and supportive parent" is not available. Clearly, just having a parent there is not enough. See also, Justice Stevens, concurring opinion in a previous case here.