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Tuesday, November 29, 2005 

Ayotte v Planned Parenthood

It's abortion time yet again at the Supreme Court. Tomorrow, the Court will hear Ayotte v Planned Parenthood, the big abortion case of the term (story here). At issue is a New Hampshire law that requires parental notification 48 hours before an abortion can be performed on a woman under the age of 18. There is a judicial bypass in the law, but Planned Parenthood claims that this restriction is still too much.

I'd like to point out a very stupid statement in this article...
"Women are going to get abortions no matter what, whether it's legal or illegal, whether they're 13 or whether they're 50. ... Any limitations put on it is heading backward in time," said Becca Pawling, 35, who leads Annie's Forum, a weekly program that brings together teenage girls and older women for snacks, support, crafts and conversation in Portsmouth.
Think about that statement for a moment. Now apply it to any law. "People are going to steal no matter what, whether it's legal or illegal." "People are going to commit murder no matter what, whether it's legal or illegal." Those are all true statements, but that doesn't mean that we shouldn't have laws restricting those actions.

The law has public support, even in heavily pro-choice New Hampshire. It seems like a reasonable measure, keeping parents involved in a major medical procedure of their minor child. The judicial bypass is in the law, in case there is a reason why the child can't tell the parent (I'm starting to get Casey flashbacks). I think Planned Parenthood is over-extending here. I know that they are going to argue against ANY restriction on abortion just on principle. From a legal standpoint, it's good to make sure that the precedent is not chipped away at bit by bit. As the precedent gets ever weakened, it becomes prone to total reversal. I just don't know if it's a good idea from a public relations standpoint. Laws like this and partial birth abortion bans are pretty tough to attack. I think that much of the public is fine with some reasonable restrictions placed on abortion, and the no compromise position of Planned Parenthood can be a turn off.

What is the Court going to do? Who the hell knows? Certainly not me. I know Scalia and Thomas will be in favor of reinstating the law. My gut says that Roberts will be too. Kennedy has been making me wonder a bit on abortion. He helped craft the Casey decision, and he felt that they came to a reasonable framework to use in the future. When partial birth abortion came up in Stenberg v Carhart, he seemed shocked that the majority struck down the bans. His dissent is a pretty graphic portrayal of the procedures involved. It seemed like he couldn't believe that 5 members of the Court would look at Casey and not allow this kind of restriction. Scalia's finger-wagging, "I told ya so" dissent is pretty obviously directed Kennedy's way. Does Kennedy have buyer's remorse over Casey? I wonder...

The other issue is O'Connor's retirement. She's going to hear argument on this case. If she retires before the opinion comes down, her vote doesn't count. If it lines up like Stenberg and her vote is gone, it's a 4-4 decision. That means the lower court's decision (overturning the law) stands or the case can be held over for reargument. I think this is an important enough case to hold over. Then, much like what might happen with Wisconsin Right to Life v Federal Election Commission, Alito's vote decides the case. Exciting, isn't it?

By the way, here's the Solicitor General's amicus brief in case you're interested.

EDIT: CSPAN is going to run the oral argument right after it is finished, so fire up your TIVOs.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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