The sky didn’t fall last week when the Supreme Court handed down its first abortion-related decision with Chief Justice John Roberts in the driver’s seat. In fact, the first sentence of Justice Sandra Day O’Connor’s opinion made a point of reassuring readers: “We do not revisit our abortion precedents today.”
At the end of November, I watched while nine Supreme Court justices, including brand-new Chief Justice Roberts, heard oral arguments in Ayotte v. Planned Parenthood of Northern New England. The case weighed the constitutionality of a New Hampshire statute, which mandated that minors seeking an abortion get permission from one of their parents. Forty-four states (including Massachusetts) have versions of a parental-notification law. The problem was, this one didn’t have an exception for the young woman’s health. (See “Jamming with the Supremes,” News and Features, December 9, 2005.)
Here’s what I predicted at the time: “For now, it seems unlikely that the Supreme Court will strike down the entire law. A more probable outcome is that it will uphold the principle of New Hampshire’s statute, while addressing the missing exception for teenagers who are in urgent medical danger but whose lives are not at risk.”
And that’s pretty much exactly what Justice O’Connor did in the opinion she wrote for the unanimous majority.
“When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force.”
Here, the court didn’t even go that far. The justices agreed that the missing health exception was problematic, but they kept their hands clean by handing the entire law back down to the First Circuit Court of Appeals in Boston, with instructions to fix the problem.
So they wiggled out of that one. But with associate-justice nominee Samuel Alito nearing what looks like an easy confirmation (at which point O’Connor will leave the court), we can count on messier battles in the future.
