ON MAY 23, THE Supreme Court announced it would review the constitutionality of a New Hampshire law requiring parental notification at least 48 hours before an abortion may be performed on an "unemancipated minor" (a female under age 18). Immediately, Ayotte v. Planned Parenthood figured to be one of the coming term's more notable cases. Abortion cases usually are. But now, with Sandra Day O'Connor retiring, Ayotte assumes even more importance. O'Connor probably would have found the statute unconstitutional, but if President Bush chooses a jurist who shares his stated judicial philosophy, the new justice will likely vote for the law, and that vote could decide the case.
The New Hampshire legislature passed the statute in June of 2003. It was to take effect on December 31, 2003, but Planned Parenthood sued in federal court and won a judgment holding the law unconstitutional and prohibiting its enforcement. The First Circuit affirmed, whereupon the New Hampshire attorney general appealed to the Supreme Court. The justices were under no obligation to review the case--they take very few of the hundreds of petitions they annually receive--but at least four justices (the required minimum) voted to take it.
Which justices did that, and why, are unknown. What is known are the two questions the Court saw in the case, with the first being the seemingly dry one of what standard should be used to decide whether a statute is, to use the legal jargon, facially invalid. In 1987 the Court ruled (in a case not about abortion)
that a plaintiff challenging a law as facially invalid must show that there is "no set of circumstances" under which it could ever be lawful. Five years later in Planned Parenthood v. Casey, however, the Court used a less demanding standard in reviewing a challenge to Pennsylvania's abortion regulations.
The Court has yet to address this tension, effectively leaving it to the courts of appeals, almost all of which have rejected the "no set of circumstances" standard. That is the standard Justice Scalia would use in the context of abortion as elsewhere, and some lawyers have speculated that Scalia pushed for taking Ayotte because he saw it as a case for resolving the issue, and on his terms, which would prevent abortion regulations from being, well, aborted.
Maybe. But it could also be that some liberal justices were trying to win while they still had the votes, one of which was to be O'Connor's. Hoping O'Connor would not retire for another year, they voted (according to this scenario) to take Ayotte to strike down the law and reaffirm the Court's rulings on abortion. In particular, the Court would make clear that any regulation must ensure access to abortion if the pregnancy threatens the woman's health. As it happens, the second question that the Court will address is whether the New Hampshire statute indeed satisfies the requirement of a health exception.
Whatever motivated four or more justices to take Ayotte, New Hampshire now has a better chance of prevailing than it did when the Court took the case--provided President Bush appoints a bona fide judicial conservative. Indeed, Ayotte is a depressing reminder of the failure of Republican-appointed justices to recover the meaning of the Constitution with respect to the most controversial domestic issue of our time.
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