Lots and lots going on this week in the reproductive rights arena. Ayotte v. Planned Parenthood is being argued right now, and is virtually guaranteed to have a major impact on the future of reproductive rights — if only to tell us how closely the Roberts court is willing to honor precedent. I wrote a little bit about this case yesterday, but there are still a few points that I think need clarification. At issue is a New Hampshire abortion statute that has not yet been instituted. The statute requires parental notification and a 48-hour waiting period after that. It has an exception for life-threatening conditions, but not for health conditions, despite the fact that a 2000 Supreme Court ruling requires that abortion restrictions have an out for the pregnant woman’s health. The Bush administration supports the law, but their reasoning seems a bit flawed:
Solicitor General Paul Clement, arguing for the Bush administration on behalf of the New Hampshire law, said critics of the New Hampshire statute had focused on “a one in a thousand” circumstance in which a teen-ager might need an abortion quickly, and that the entire statute should not be undone.
All sides agree that circumstances in which a minor needs an abortion for emergent health reasons are rare. But does rarity justify the upholding of a law that could potentially cause serious harm, even if that harm only affects a handful of people? What’s the threshold at which we decide “enough” women will be affected — 100? 1,000?
The statute includes a judicial bypass option, in which a minor with an emergent health-threatening condition can get permission from a judge to get around the parental consent and waiting period. But, as the attorney for Planned Parenthood argued, ” “Once a minor arrives in the emergency room, it is too late for her to go to court.”
That point was met by a fairly creative proposal from Justice Scalia:
Justice Antonin Scalia wondered what would happen if the state created “a special office, open 24 hours a day” to field just such emergencies: ” ‘This is the abortion judge.’ It takes 30 seconds to place a phone call.”
Or, we can just let doctors do their jobs. If a teenage girl comes into the emergency room with a condition that will leave her sterile unless she has an abortion right away, let her doctor perform the procedure. How will telephoning a judge, who probably has no medical background and little ability in a 30-second phone call to determine the exact circumstances, be at all helpful or even practical?
This seems fairly simple to me. If New Hampshire wants to keep their statute, fine — just toss in a health exception. I don’t like parental notification laws, but the Court has ruled them constitutional and not unduly burdensome if they include a judicial bypass and a health/life exception. It’s not asking so much that New Hampshire stick to that standard, and that the Bush administration and conservative state governments not use the physical health of minor women to gain political capitol or make a point about their anti-choice beliefs.
In other news, let there be no doubt about how Supreme Court nominee Samuel Alito feels about Roe: He wants it overturned. From a 1985 document:
Alito wrote in the memo, released by the National Archives on Wednesday, that ”no one seriously believes that the court is about to overrule Roe v. Wade.”
But, he said, ”By taking these cases, the court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”
Well that clears that up.
I found this article via Amanda, and it’s another must- must- MUST-read. It’s a woman’s story of her D&E abortion, the procedure that the “partial-birth” abortion ban would have made illegal. These procedures, as the article details, are already incredibly difficult to access. This is another one of those abortion-related things (like the New Hampshire law) that affects a very tiny minority of women; yet its impact on those women can be tremendous. Read the article, and consider the women who find themselves in similar situations, but whose fetuses aren’t dead — those women whose fetuses have birth defects that are incompatible with life, like anencephaly. Should the “partial-birth” abortion ban be upheld, these women will no longer have access to what they and their doctors may deem the safest procedure for them.
And finally, a TimesSelect article about the waning power of Roe v. Wade. It is fantastic, and an absolute must-read. Because it’s TimesSelect, I’ll paste it below: