Two Supreme Court oral arguments respecting abortion took place yesterday, one potentially important, the other somewhat trivial. One should be careful when using the latter word choice, but the second case involved a small aspect of an abortion protest case that is on its third go around --- the Supreme Court seems to be getting tired of the whole thing, though taking the "hard cases make bad law" approach, they might dispose it in such a way that the resulting law might be taken in unknown ways. Still, the narrow nature of the case suggests it is not compelling by any means.
The first, which we had a chance to hear via taped audio, has potential to be important ... but, there is some reason to think it will be less so than some fear, others hope. First off, it is unclear why we cannot hear more audio --
C-SPAN asked the Court to broadcast a few cases for the term, a handful, but there is no reason why let's say around fifteen (about a fifth of the docket) or more cannot be broadcast. If an abortion case -- one where some playing to the media arguably is more likely than otherwise (see the
Casey oral argument) -- can be allowed, why not others? Let it be noted the orals here were not fascinating or anything. Justice Scalia (perhaps because he dislikes being taped?) was rather low key. The Court overall was restrained.
* And, it would be useful for the regular public to at least be able to listen to such things.
As is often the case, the concern was not the specific law, but the law ... as in legal principles that would be applied in further cases. The specific matter at issue was in a sense somewhat minor ... a parental notification law of the sort that overall the Supreme Court has held to be perfectly constitutional lacked a health exception and arguably too narrow death exception. The
Scotusblog phrased the issue at stake thusly: "whether an abortion restriction is always unconstitutional if it does not contain an exception to protect the health of pregnant women. The Court has never said that, but lower courts have." I am not sure if the second half of that statement is true, since the Supreme Court (see
lower court opinion) said that: "The governing standard requires an exception where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother."
But, I put that aside. The lower court struck down the entire law because of the absence of this provision. The attorney general basically argued that other provisions gave physicians an out in such situations, but the lower court reasonably noted this is a dubious reading of the plain words of the statute. The provision provides 24/7 access to the courts, so the oral argument raised scenarios of a judge being ready at a moment's notice. I felt this rather ridiculous, and the lower court underlines the judge does not have to rule that very minute -- there in fact might be a wait of two weeks. So, the provision as applied to minors with a health or life endangering situation is on dubious ground, and a majority of the Supreme Court probably would agree to some extent at least.
From the argument, one got the idea what the state had a problem with was the complete invalidation of the statute, not the fact that as applied to minors with a health emergency, the statute was unconstitutional. Justice O'Connor, la swing vote for the time being, suggested that this solution was worse than the problem. She wondered if a more narrow approach might be appropriate ... and such "facial" attacks on laws with limited problems is the real money part of this case. Chief Justice Roberts suggested the case itself can be postponed, though some of his fellow justices and various commentators on the case (contra, see comments of link), felt that would be
illogical.
Striking down the whole law does seem troubling, though ruling too narrowly allows clearly problematic laws with many unconstitutional provisions to linger, encouraging the government to pass such laws. We allow this in various cases, but are wary in certain special situations, including free expression and abortion cases. In various cases, states were given less breathing room in the 1960s because it was deemed that they were acting in bad faith. Many states do the same in the abortion realm, passing clearly unconstitutional laws, singling out one medical procedure for special burdens for obvious reasons.
Still, do we overrule a whole parental notification statute because of one principle problem? Some of these laws are attacked on numerous grounds ... this one was not as odious. So, I think a somewhat narrower approach might be appropriate, one in which a lack of a health exception is deemed unconstitutional. A likely result would also be that the Supreme Court would not expressly say that, but remand, and allow the lower court to rule in this narrower matter. The fake hope of 24/7 service might hurt things, but maybe six justices would accept this ... thus O'Connor's departure would not change things. Or, maybe the case will be re-argued. Nonetheless, a major change in abortion law could very well be avoided, for now. As Justice Breyer
suggested in orals:
"I guess it would satisfy you to say that this statute cannot be enforced in any circumstance in which a physician certifies in good faith that he believes an immediate abortion is necessary for the health of the mother," Justice Breyer said. As much musing as questioning, he continued:
"All you're looking to is the state of mind of the physician. Now, the problem that I think we'd see with that is you'd then be writing into the law the broadest possible definition of what that health exception means. So, I'm not sure the New Hampshire Legislature would have wanted to do it, and I'm not sure the other side would like to do it. But looking at it from your point of view, do you have any objection to it?"
The Planned Parenthood attorney basically agreed, but noted the lower court approach works better since it doesn't require the courts to continually re-write abortion laws. [And, anyway, striking down the law does away with any problem with it.) But, courts interpret laws to avoid possible constitutional pratfalls a lot of times, and have for years. It even is allowed in parliamentary supremacy regimes unless the legislature's will clearly prevents it. Legislative intent might go the other way here, true, but the state claims otherwise.
The Solicitor General of the United States noted that there is literally a one in a thousand chance this provision would arise in parental notification cases. Casey suggests we focus on those actually affected. This was in particular referenced in relation to a spousal notification provision. This case is more narrow: the notification itself is not a problem (
Casey argued even if the wife did not fear violence, she had a liberty interest in making the choice on her own ... and it was only one part of the law at any rate), but the notification where health risks arise from a delay.
A serious issue is just how serious this health risk has to be, an issue not addressed. But, unfortunately, the Supreme Court accepts parental notification overall. Still, it might very well be more than a 1 in 1000 thing. And, even if it is, for them the law is dangerous. So, all this number game gets you really is maybe an argument the whole law should not have been struck down.
And, I am willing to some extent to agree with this sentiment. The test should be if the law is in some significant part likely to result in unconstitutional activity. Not always, not nearly always, at least when particularly important constitutional matters are at stake. The spousal notification law violated that test -- a spouse either was willing to tell (no need for law), or unwilling and perhaps be harmed (law problematic). A few that might benefit from notification might tell only with the law in place, but the right of choice plus the danger without it made the benefit too small to save the law. Here, it is cloudier ... only a small subset of the minors (with health risk vs. all married women) is involved in the analysis to begin with, though for them the law is problematic. So, it is not really an appropriate place to replace the rule, just perhaps tinker with its application. Likewise, as applied, the provision is problematic.
So, Planned Parenthood might lose the battle, not the war: the law might survive, but with clear notice that a health exception was necessary, and potential in the future to attack more problematic laws with a facial challenge. And, it was right proper to air the oral argument, and perhaps have some on board to discuss the matter (C-SPAN aired after argument press conferences and probably had someone on their morning press shows talk about it). Court TV and other news coverage could and should do the same. In fact, Brian Lamb (C-SPAN), an executive from Court TV, Peter Irons (of the
May It Please The Court audio series), and others recently was part of Senate hearings encouraging such court coverage.
Anyway, these edges will be the battle in the Roberts Court, not trivial ones by any means given abortion will continue to be available for women (and well connected minors) ... the problem traditionally was a certain select group, sadly often those who particularly need the right to choose. The nuances of the debate should not cloud this fact. Facial invalidation might be a useful approach to protect them, but it is not likely to be allowed by the Supremes quite as broadly, and in certain cases it probably is not appropriate overall. But, New Hampshire could have re-passed the law with a suitable exception, so do not cry for them too much.
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* He made a couple of his snarky remarks, but in fact Souter, Ginsburg, Kennedy, and Roberts (taking the pro-government position) asked most of the questions. Souter actually started off questioning the attorney general right into the argument, having her (here is where picture would have helped; also both advocates are good looking women) to actually find a specific phrase of the state's brief that seemed to suggest there was a constitutionally mandated health exception.
