January 18, 2006

O'Connor's Ayotte Opinion: Endangering Women?

Lyle Denniston on today's big (though short) Supreme Court ruling:

Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges' authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.

If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor's professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.

Posted by armand at January 18, 2006 12:14 PM | TrackBack | Posted to Law and the Courts


I really think that this is a tempest in a teapot, and I think the unanumity of the Justice is the biggest give-away. Really, do you think Justice Stevens or Justice Ginsburg would have voted to join this opinion had any new ground been broken?

This strikes me as no more than interesting variation on a jurisprudential theme common to virtually all jurisdictions: courts, in the interest of interbranch comity, should strongly presume a statute's constitutionality, should read the statute consistently with that presumption, should endeavor to effectuate the legislature's intent to the extent possible in interpreting the statute under the abovementioned presumption, and should sever just the constitutionally problematic subsection(s) of an otherwise constitutional statute where to do so does no violence to the larger statutory scheme.

Understandably, people are in an almighty rush to get a handle on our evolving Court, but we mustn't read more into decisions than they afford. It might be years before we see an interesting abortion decision issue from the Roberts Court cum Alito, as might it be years before a sweeping ruling on presidential power, and so on. To try to answer all our pressing questions about the shape of the new Court in the first partial term is folly.

This decision simply doesn't appear to be substantive with regard to the larger abortion debate. It's a fundamentally procedural opinion.

Furthermore, I'm pretty blown away by how unclear Denniston is on how, precisely, the ruling described leads to the harm he anticipates. I simply don't see how the ruling necessarily (read broadly or narrowly) leads to the harm predicted, or how asking state courts to conduct more granular reviews of the statutes over which they have first-instance appellate jurisdiction has any effect on the degree of discretion vested in doctors. As Denniston notes, the substantive issue already has been decided for the time being: given a sufficient judicial bypass, parental notification regulations are permissible and are in place in a supermajority of the states.

Posted by: Moon at January 18, 2006 03:06 PM | PERMALINK

It doesn't seem to me that it would necessarily lead to the predicted harm - but at the same time it seems possible when you put together your last sentence and the possibility that blanket (or at least bigger) strikings-down appear to be pretty clearly called into this question. If the norm is that if such laws are allowed, this removes one obstacle to them being allowed - and it's an obstacle whose removal could lead to the predicted harm.

Posted by: Armand at January 18, 2006 03:57 PM | PERMALINK

I merely reiterate that if Stevens or Ginsburg or the rest of the pro-choice majority thought material restrictions would arise from misapplication of this case, they likely would not have joined. Having not read the opinion, I remain agnostic, but the voting to me is rather suggestive. Also, I still have no idea how Denniston reaches his conclusion. In other news, Kerr appears to agree that there's very little to talk about in this opinion.

Posted by: moon at January 19, 2006 10:47 AM | PERMALINK
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