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Tuesday, May 24, 2005

Cert for abortion case: Why this one?

A few thoughts about the Ayotte case.

First, I am happy to see the Court granting Cert in an abortion case. The Court has avoided the issue for far too long, given the its divisiveness and also the lack of jurisprudential clarity stemming from Roe and Casey.

But why am I not happy? Because this case is too narrow for the Court to clarify its standard of review without being too activist. The case involves a state law requiring 48 hour parental notification before a woman under 18 can receive an abortion. The law does not have an exception for health emergencies - and the Appeals Court struck it down applying the undue burden standard. This case is very clear to me - any law that does not have an exception for health emergencies places an undue burden on women. Yes - women can still go before a judge to bypass the waiting period - but that could take too long, putting the health of the mother in jeopardy. But that's just my opinion. More importantly...

What this case is really about is whether a law which unduly burdens only a very small fraction of women (those under 18 who face medical emergencies during pregnancy) places an undue burden on a woman's ability to have an abortion. As such, the case invites the Court to determine if the "undue burden" test should be conceived of as a test to be applied to individual cases, or to women as a whole (in the latter case, a situation which falls only on a small portion of women would not constitute an undue burden generally). This is important - no doubt - but I don't see how this case invites resolution of the far more important question - should the undue burden test remain at all, i.e. should a woman's right to an abortion remain constitutionally protected?

And so - I'm happy to see the Court venturing back into this issue - but I am uncertain that this particular case was the right one for the Court to select to illuminate the confused jurisprudence on the subject. If the Court does use this case to revisit abortion laws generally - which I suspect it will - I question how it will manage to do so without overstepping its bounds.

2 Comments:

Blogger Brian said...

If the 4 who voted for cert were Stevens, Breyer, Souter and the ACLU hag, then the reason they accepted this case is to give the Democrats more ammunition come confirmation time this summer.

Really, who knows better than those 9 old geezers when one of them is calling it a career? When I heard cert was granted on this question, I knew right then and there Rehnquist is gone for sure. And anyone who thinks justices are above politics need only read some of Harry Blackmun's files that were released recently, as just one example.

3:31 AM  
Blogger Helvidius said...

Interesting, but I don't think that Rehnquist's retirement is going to incite such ammunition. The dems aren't losing any ground when Rehnquist leaves; the best they can do is make the republicans spend a lot of political capital with Rehnquist so that they get a moderate to replace O'Connor.

I think the statute gets struck down either way.

3:37 AM  

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