The Supreme Court on Monday agreed to decide a long-unsettled issue of abortion law: the standard to be used in judging the constitutionality of a restriction on a women’s right to end a pregnancy. The question is whether such a restriction is to be upheld if there is any circumstance in which it could be applied constitutionally. The Court for some time has not followed that approach in abortion cases, but has never explicitly repudiated it. The working standard the Court has applied is whether a restriction, as written, would put a burden on the abortion rights of a significant number of women.
The issue arises in the case of Ayotte v. Planned Parenthood of Northern New England (docket 04-1144). The case also raises the question whether a parental consent law for minors’ abortions must contain a health exception. At issue is such a law enacted in New Hampshire in 2003.
That is the only new case granted on Monday.
An accompanying analysis states:
The Supreme Court’s decision on Monday to put the abortion controversy back on its decision docket could produce a major new ruling next Term on the power of states to enforce their new abortion control laws. The outcome of the case on the New Hampshire parental consent law (Ayotte v. Planned Parenthood of Northern New England, 04-1144) potentially could mean that states could begin enforcing new abortion restrictions, and keep them in effect at least long enough to test their practical impact on pregnant women.
For years, courts have been allowing “facial” challenges to new abortion laws, and frequently those tests have resulted in court orders banning enforcement even before the statutes took effect. Those challenges have succeeded, in part at least, because the courts have used a less tolerant standard of review, and thus have not followed a Supreme Court precedent that supposedly limits facial challenges. (Three recent cases in which that standard was not used are the major lawsuits challenging the constitutionality of the new federal ban on what is called “partial birth abortion,” a law enjoined before it could take effect.)
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