Ayotte v. Planned Parenthood

In a fast turnaround short, only 10 pages, decision, the court managed to both uphold the constitutional requirement that the health of the mother must be of paramount importance in abortion restriction laws and made abortion access much more vulnerable.

The New Hampshire law required a 48 hour notice to the parents of a minor prior to performing an abortion. While there was an exception for life threatening situations, there was no general exception for situations which threatened the health of the mother as required in Casey and other decisions. The District Court also declared the part of the act which made an exception under life threatening conditions unconstitutional because “it requires physicians to certify with impossible precision that an abortion is "necessary" to avoid death, and fails to protect their good faith medical judgment.”

New Hampshire doesn’t debate that the mother’s health has to be protected but claims that other New Hampshire laws cover that situation so it was unnecessary to specifically state it in the abortion statute.

My reaction, as well as the reaction of the District and Appellate courts, is horseshit. If there is no intention of getting around such a provision, then what’s the harm of adding it?

The Supreme Court, in a unanimous decision, re-affirmed the constitutional requirement to protect the mother’s health, but said that the lower court should consider whether or not the entire law should have been tossed or only those portions which were unconstitutional.

Hmmm, the court admits that this is a change “for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw.”

However in this case they are sending it back to the lower court to determine the legislative intent and whether the entire law needs to be tossed out or simply the problem portions.

This can be a dangerous approach and O’Conner, who wrote the opinion, clearly recognizes that and warns “All the while, we are wary of legislatures who would rely on our intervention, for it would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave '[i]t to the courts to step inside' to announce to whom the statute may be applied.”

This is precisely what abortion opponents can now do if the courts are going to pick and choose which portions of an abortion statute are ok and which aren’t.

One might consider this something of a pyrrhic victory. The court upheld the need for health of the mother exceptions but didn’t toss out the entire statute as it has in the past. This opens the door for the crafting of statutes with provisions that push the edges of acceptability without having to be concerned that the whole thing will get tossed.

I believe that the court has just made it easier for anti-choice forces to mount offensives against choice. That can’t be a good thing.