A Pair of Abortion Stories

From this morning, the Supreme Court basically punted on an abortion case. In a 9-0 decision by O'Connor, the Court reversed a 1st Circuit ruling forbidding the enforcement of a parental-notification law. Basically, New Hampshire passed a law requiring minor girls to tell their parents before getting an abortion. The trial judge said the whole law was unconstitutional, and the First Circuit agreed.

The Supremes said the trial judge painted with too broad a brush. The statute might be unconstitutional in case of medical emergency (I don't know how many teen-age girls really have medical emergencies such that they absolutely cannot tell their parents 48 hours before an abortion, but we'll let that pass for now), but that doesn't necessarily make the whole statute unconstitutional. The Supremes sent the case back for reconsideration.

While this is a "punt," it's interesting for a few reasons. First of all, this was a unanimous opinion. That means flaming ultra-liberals Breyer, Ginsburg and Souter today voted that a parental notification law might, in some circumstances, be constitutional. Well, sorta. What it really looks like is that the Nine decided to agree to kick this one back, and take it on later. Ace speculated that maybe it was so O'Connor's replacement could be in on the voting, rather than O'Connor the short-timer. Maybe, although the prospect of completely screwing up the law has never stopped Sandra Day before.

So that's from this morning. This evening, MSNBC posted this story: Crucial abortion battles expected on state level.

"While the national abortion debate is now focused on the Supreme Court, both sides expect crucial battles to unfold this year on the state level."

Of course, every Supreme Court abortion case inevitably starts either at the state level, or in Congress. Roe v. Wade was two cases challenging Texas and Georgia statutes, and Planned Parenthood v. Casey was a case involving a challenge to a Pennsylvania statute. So really, nothing about this article is a shock at all. Sine Roe and before that, states have been passing statutes to ban, restrict, or otherwise regulate abortion. Some laws get struck down, some get upheld. That's the way it's been forever.

That said, it seems like there's been a recent uptick, either in legislative attempts to curb abortion, or in reporting about it. The latter is a very realistic possibility, given that first Roberts and now Alito went through the confirmation process, and liberal outlets like MSNBC need to scare up the opposition.

"Lawmakers in two states are proposing broad abortion bans they hope will eventually win approval from a reconfigured, more conservative high court. Legislators elsewhere are seeking to tighten a range of abortion restrictions; one leading liberal advocacy group gave 19 states a failing grade on reproductive rights in a national status report issued Wednesday."

That's probably an over-optimistic assessment. Roberts cannot possibly be more conservative than his predecessor, Rehnquist, so his nomination is a wash. And Alito could be more conservative than wishy-washy O'Connor, but that only puts the Court at 4 of 9 in the reliably-conservative column. With three justices (Ginsburg, Souter and Breyer) guaranteed to vote against abortion restrictions, that leaves Kennedy and Stevens. A little while back I wrote that Alito may not be enough to shoot down Planned Parenthood v. Casey, but that he might be enough to get Stenberg v. Carhart, a 2000 case that notoriously struck down a partial-birth abortion ban as unconstitutional. But I'm not sure even of that. Kennedy dissented in Stenberg, so I orginally thought he might be persuaded to side with Alito et al. But now I'm not so sure, because Kennedy has been trending leftward, and he might vote to uphold Stenberg on stare decisis grounds alone.

At any rate, the "conservative trend" may or may not materialize, so it remains to be seen whether states will be able to clamp down on abortions.

"'It’s a picking away at our freedom and privacy, legislature by legislature, law by law, with the ultimate goal of overturning Roe v. Wade,' said Nancy Keenan, president of NARAL Pro-Choice America."

Arguably better than picking away at human fetuses, little by little, until their dismembered remains are collected in a trash can and thrown into the back alley. What Keenan doesn't seem to realize (or acknowledge, anyway) is that if state legislatures are doing this, it's because that's what Americans want their elected representatives to do. Hey, I want this country to turn into a jack-booted theocracy as much as the next psychotic conservative, but we have not yet abolished the right to vote, so any time the liberals want to do something about the erosion of Roe, all they have to do is start winning elections.

Heh.

(Oh, and tangentially-related to that last point, I've been quietly chuckling almost constantly since I read this).

"Among the states getting F’s in NARAL’s report are Indiana and Ohio, where conservative lawmakers are introducing bills to ban abortion outright. They hope their measures become law and then face legal challenges that lead to a Supreme Court reconsideration of the 1973 Roe ruling that established abortion rights nationwide."

Just as a matter of strategy, I think Indiana and Ohio are jumping the gun. John Paul Stevens may be on death's door, but he hasn't walked through yet, and until he does, President Bush does not get to pick another associate justice. That means a challenge to the Indiana and Ohio schemes could very well end up with even more precedent upholding Roe v. Wade, and one more reason to keep upholding it (under the John Roberts theory that the more a case is upheld, the harder it is to overturn it).

"'It is time to return the abortion issue to the states,' said Mark Harrington, executive director of the Center for Bio Ethical Reform Midwest and a supporter of the proposed Ohio ban."

Maybe, and maybe not. On the one hand, the Constitution nowhere refers to abortion, or to a privacy right that supposedly undergirds abortion rights, which -- federalism principles suggest -- means it's a state issue. On the other hand, if the Fourteenth Amendment Due Process Clause (the one that says you can't be deprived of "life, liberty or property" yadda yadda) is read to cover, you know, human babies and such, then it's not a state's rights issue at all, but a matter of the Constitution protecting those least capable of protecting themselves.

Roe violates both of those premises, and needs to be overturned on either one. But that doesn't mean there isn't a real debate to be had over which of the two options is constitutionally correct.


A while back, on Are You Conservative?, a liberal commenter attacked Mrs. R for wanting to shut down abortion debate by overturning Roe. I responded that Roe was the ultimate example of the Supreme Court telling America "no, you are not allowed to debate this. You are not allowed to discuss it at all, because we've decided what's right for all fifty states. No state has anything to add after we're done." I find that the basest tyranny, made only marginally more so because of the blood-soaked aftermath. America did not fight against the English monarch only to end up with a kingdom in the judicial branch, five of nine tyrants whose unassailable whim is law, with no constitutional restraints upon them.

Now the states are writing laws that challenge the very fabric of Roe, and I say it's about time.