Joined: 31 Jan 2005
|Posted: Mon Feb 08, 2010 1:26 pm Post subject: 3 Entries Re: Roe v. Wade History, etc.
|September 14, 2005
CHOOSING A CHIEF JUSTICE
Roe Ruling: More Than Its Author Intended
By David G. Savage, Times Staff Writer
WASHINGTON � In mid-1971, the Supreme Court agreed for the first time to hear a constitutional challenge to the long-standing state laws limiting abortion. Its decision to do so reverberates today.
At that time, Texas and 30 other states had laws, dating from the 19th century, that made an abortion a crime unless it was performed to save the mother's life.
Georgia, like California, had revised its laws in the late 1960s to permit abortion in specific circumstances: if the mother's health was endangered, if the pregnancy was caused by rape or if the fetus had a severe defect.
The newest member of the Supreme Court, Justice Harry A. Blackmun, saw much to like in the revised abortion laws. A lawyer who greatly admired doctors, he had been general counsel for the Mayo Clinic in his home state of Minnesota before becoming a federal appellate judge.
He believed that doctors needed to have leeway to do medically necessary abortions. In the court's first private conference on the issue, he described Georgia's law as "a fine statute [that] strikes a balance that is fair."
Yet, a year later, Blackmun wrote an opinion for the court that struck down all of the nation's abortion laws. Equally important, his opinion made virtually all abortions legal as a matter of a constitutional right.
That opinion, in the case of Roe vs. Wade, remains the court's most disputed decision of recent decades. By abruptly voiding all laws against abortion, it galvanized a powerful antiabortion movement that has transformed American politics.
It also dominates public debate over the court and its future. The Senate confirmation hearing for Judge John G. Roberts Jr., like those of all recent nominees, is focusing on one question: Will he vote to uphold or to reverse Roe vs. Wade?
Last year, on the fifth anniversary of Blackmun's death, the Library of Congress opened his papers to the public. His thick files on the abortion cases tell the little-known story of how Roe vs. Wade came to be. It is the story of a rookie justice, unsure of himself and his abilities, who set out to write a narrow ruling that would reform abortion laws, not repeal them.
It is also the story of a sometimes rudderless court led by Chief Justice Warren Burger. On the day the ruling was announced, Burger said, "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."
Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. "I fear what the headlines may be," he wrote in a memo. His statement, never issued, emphasized that the court was not giving women "an absolute right to abortion," nor was it saying that the "Constitution compels abortion on demand."
In reality, the court did just that.
Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions � and clinics soon opened solely to do so � the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.
But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors � physical, emotional, psychological, familial and the woman's age � relevant to the well-being of the patient."
It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified.
Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not "deprive any person of life, liberty or property, without due process of law."
In earlier opinions, the court had said that liberty included the concept of personal privacy. "This right to privacy � is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," Blackmun declared.
Earlier this year, 11 legal scholars, led by Yale's Jack Balkin, tried to write a better opinion. Their book of essays, "What Roe v. Wade Should Have Said," proposed several alternatives, such as saying sexual equality for women required a right to abortion.
Far less attention has focused on the all-or-nothing nature of the Roe vs. Wade ruling.
Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be "legal under any circumstances," the rule set by Roe vs. Wade.
Only 22% said abortion should be "illegal in all circumstances," the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.
The largest group � 53% � said abortion should be "legal only under certain circumstances."
But Roe vs. Wade foreclosed this middle course � for the states as well as for the court. It does not give states the room to adopt what might be a popular compromise: permitting abortions during the first three months of a pregnancy, but not afterward. Nor does it permit states to authorize only "medically necessary" abortions, a reform idea of the late 1960s.
How did Blackmun and the Supreme Court produce such a broad ruling on abortion, while professing to do no such thing?
Court scholars and law clerks from the Roe era say there is no single explanation. Some say Blackmun naively thought that doctors would perform abortions only for medical reasons.
"He was thinking of this in the medical framework of Rochester, Minn. He imagined abortions would be performed by a family physician or in a hospital," said historian David J. Garrow, the author of a scholarly history of the abortion-rights movement.
The justices did not foresee the full impact of the ruling or the backlash it would set off, said Georgetown University law professor Mark V. Tushnet, who was a clerk for Justice Thurgood Marshall when Roe was decided. They focused on striking down the Texas-type laws that outlawed all abortions, he said.
"All they wanted was to get those laws off the books," Tushnet said. "They were not thinking long-term with an overall vision."
In Burger's Footsteps
Blackmun made it to the Supreme Court because of his boyhood friend, Burger.
In 1969, President Richard Nixon chose Burger to be chief justice of the United States. A year later, after Nixon tried and failed to get two Southern judges confirmed, Burger suggested his old friend. Burger and Blackmun were soon dubbed the "Minnesota Twins."
In June 1971, five justices (but neither Burger nor Blackmun) voted to hear abortion cases from Texas and Georgia.
When those cases came before the court in December 1971, only seven justices were seated. Justices Hugo Black and John Marshall Harlan, both ailing and near death, had suddenly retired. Their Nixon-appointed successors � Lewis F. Powell Jr. and William H. Rehnquist � would not join the court until January and thus would not participate in abortion deliberations that term.
At the court's private conference, the seven justices agreed that the Texas law was extreme and unconstitutional, according to the notes of several justices. Even Byron R. White, a critic of abortion, said doctors must be permitted to act when there were "health problems."
Blackmun voiced disdain for feminists who said women deserved control over their bodies. "There is no absolute right to do with one's body what you like," he said. But he agreed that the Texas law was extreme and said it did "not go far enough to protect doctors."
The Georgia law was much better, the justices said, except for a requirement that three doctors approve an abortion.
Days later, the liberal justices were irked to receive a memo from Burger saying he had chosen Blackmun to write both opinions. With little guidance from colleagues, Blackmun and his clerks began research.
Meanwhile, the court turned its attention to the death penalty. Capital punishment had been under attack, and in January 1972 the full court voted 5 to 4 to strike it down.
The ruling, handed down in June, described the states' death penalty laws as arbitrary; they sometimes treated rapists the same way they treated mass murderers. But it left room for states to try again. Most states rewrote laws to focus on those thought most deserving of execution. By 1976, the high court had upheld the revised laws and restored capital punishment.
Had abortion cases followed a similar course, the court would have required states to reform their laws to give more leeway to doctors and to pregnant women. But it would have also left states the power to prohibit abortions in some circumstances.
Blackmun's final opinion left no room for prohibitions on abortion. That was not apparent in the spring of 1972, however.
In mid-May, Blackmun wrote "a first and tentative draft" for Roe vs. Wade that stopped well short of declaring a constitutional right to abortion. Instead, it said the Texas law did not give doctors enough guidance.
Criminal laws must be clear, the court had emphasized, so people don't unwittingly commit a crime. Blackmun said Texas physicians could not be sure whether they were committing a crime by performing an abortion on a patient whose troubled pregnancy might risk her life.
"I come out on the theory that the Texas statute � is unconstitutionally vague," he said in a memo to his colleagues on May 18, 1972. "I think that this [finding] would be all that is necessary for the disposition of the case, and that we need not get into the more complex" issues.
In retrospect, this proved to be a crucial time in the court's handling of the abortion issue. Blackmun had proposed issuing a short opinion that would have struck down the Texas law and the 30 others like it. However, it would have also left the states ample room to revise their laws.
His proposal set off a flurry of memos on what to do next.
Justices William O. Douglas and William J. Brennan, mindful that Nixon's new appointees would join the deliberations if the cases were reargued in the fall, wanted quick action and a stronger opinion.
Burger, however, wanted to go slowly. He knew the Brennan-led majority was about to announce the striking down of the death penalty on a 5-4 vote. Burger and Blackmun had dissented, as had the new Nixon appointees, Powell and Rehnquist. Burger expected the votes on abortion to line up the same way.
If the abortion cases were carried over until the fall, Powell and Rehnquist would cast their votes, and the chief justice � with Blackmun and White also on board � could envision a new 5-4 majority that would uphold most of the state abortion laws.
"This is as sensitive and difficult an issue as any in this court in my time," Burger wrote. "Hence, I vote to reargue early in the next term."
But Burger miscalculated by seeking a delay. Had Blackmun's draft opinion been adopted, it would have left states free to prohibit abortions for nonmedical reasons. However, Blackmun reluctantly joined Burger in seeking a delay, and the majority voted to put off a decision on the abortion cases until the fall.
Blackmun spent the summer working in the Mayo Clinic's library in Minnesota. He researched the history of abortion in Persian, Greek and Roman times. He also studied abortion laws adopted in 19th century America and concluded that the bans were driven not by moral imperatives but by the reality that, before antibiotics, abortion � like other medical procedures � was dangerous.
When Blackmun returned to Washington, he had a long draft. It was a thorough work of medical history, but short on constitutional law. It also was hazy on just when abortion would be permitted or prohibited.
In October, the nine justices sat through the arguments again. When they met to discuss the cases, there was a surprise. Powell, the soft-spoken Virginian who was new to the court, firmly supported a woman's right to abortion. He urged Blackmun to say it directly rather than attack the laws as vague.
For Powell, the issue was personal: When he was a lawyer in Richmond, Va., a young man came to him in despair. His pregnant girlfriend had tried to abort her fetus with his help, and she had bled to death. Powell went to the authorities to explain what happened. Thereafter, he was determined to see abortion made safe and legal.
Suddenly, there were six solid votes to strike down the Texas and Georgia laws, and Blackmun had the backing to write a broader opinion in favor of a right to abortion. The liberals, who had worried about the delay, found they had a stronger hand, and Burger found himself with no room to maneuver.
On Nov. 21, two weeks after Nixon's reelection, Blackmun sent around revised drafts of the majority opinions. The Roe opinion said that for the first three months of a pregnancy, states must "leave the abortion decision to the best medical judgment of the pregnant woman's attending physician."
In a memo to his colleagues, however, he voiced uncertainty.
"This has proved for me to be both difficult and elusive�. You will observe that I have concluded that the end of the first trimester is critical," he wrote, referring to a cutoff date for permitting abortions. "This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary." The first trimester is the first three months of a pregnancy.
Brennan, Marshall and Powell wrote back to say that allowing abortions until "viability" � when a fetus has developed enough to live outside the womb � at six months made more sense.
Douglas disagreed. "I favor the first trimester, rather than viability," he said. He was outvoted, however, and Blackmun said he would revise the opinion over the Christmas holidays. In his final draft, states were told they could not restrict abortions through the second trimester.
That change would become the focus of today's legal and political battles. Opponents have especially condemned a procedure they call partial-birth abortion, which usually takes place in the fifth or sixth month of a pregnancy.
Blackmun's opinion ends by saying: "The decision vindicates the right of the physician to administer medical treatment according to his professional judgment�. The abortion decision in all its aspects is inherently, and primarily, a medical decision�. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."
As some scholars later said, his opinion treated the pregnant woman as a bit player in a doctor's drama.
White and Rehnquist filed dissents, but Burger delayed casting his vote. His colleagues suspected that he did not want the opinion released before Nixon's second inauguration, set for Jan. 20.
As that day approached, Burger filed a short concurrence and predicted the ruling would not have "sweeping consequences."
Blackmun's proposed press release also downplayed the potential effects of the ruling, stressing that it would not mean "abortion on demand." His court colleagues convinced him that it would be inappropriate to issue a statement that commented on a ruling.
So, on Jan. 22, 1973, Roe vs. Wade and Doe vs. Bolton were handed down as 7-2 rulings in favor of a new right to abortion. That afternoon, former President Lyndon B. Johnson died, pushing aside the abortion decisions as the biggest news story of the day.
ROE, AND THE ROAD AFTER
Major U.S. Supreme Court decisions and other milestones related to Roe vs. Wade:
Jan. 22, 1973: In Roe vs. Wade, the court for the first time ensures nationwide access to abortion. In Doe vs. Bolton, decided the same day, the court strikes down restrictions on performing abortions only in hospitals. The decision gives rise to a new kind of medical facility, the abortion clinic.
1976: In Planned Parenthood of Central Missouri vs. Danforth, the court limits the rights of husbands and of parents of minors to veto a woman's or girl's decision to end her pregnancy.
1979: In Colautti vs. Franklin, the court reaffirms its intention to give doctors broad discretion in determining "fetal viability" � when a fetus can live outside the mother's womb.
1979: In Bellotti vs. Baird, the court implies that states may be able to require a pregnant, unmarried minor to obtain parental consent to an abortion so long as state law provides an alternative, such as letting the minor seek a state judge's approval.
1981: In H.L. vs. Matheson, the court rules that states may require doctors to try to inform parents before performing an abortion.
1983: In three decisions, the court rules that states and communities may not require that all abortions for women in their second trimester be performed in hospitals. The court also strikes down regulations that impose a 24-hour waiting period between the signing of an abortion consent form and the medical procedure and that require doctors to tell women seeking abortions that a fetus is a "human life."
1986: In Thornburgh vs. American College of Obstetricians and Gynecologists, the court strikes down Pennsylvania abortion laws similar to those rejected in 1983. It also strikes down requirements that doctors performing third-trimester abortions use procedures least risky to a fetus capable of surviving outside the womb, and that two doctors attend abortions performed in the third trimester. It invalidates a regulation requiring doctors to make a record, which could become available to the public, of every abortion they perform.
1989: The court upholds a Missouri law requiring doctors to determine, when possible, whether a fetus at least 20 weeks old is "viable," or capable of surviving outside the womb. Missouri law bans abortions of viable fetuses.
1992: In Planned Parenthood of Southeastern Pennsylvania vs. Casey, the Supreme Court upholds the core of its Roe vs. Wade ruling and bans states from outlawing most abortions. But it abandons the trimester plan and adopts a new test � abortion regulations that present an "undue burden" on women's constitutional rights will be prohibited.
2000: In Stenberg vs. Carhart, the court strikes down a Nebraska ban on what opponents call "partial-birth abortion," finding it an unconstitutional violation of Roe vs. Wade.
Friday, September 17, 2004
BY SIOBHAN MORRISSEY
Despite a recent setback in a challenge to the three-decades-old abortion case, attorneys for "Jane Roe" hope the U.S. Supreme Court will ultimately address the case in light of current societal and scientific conditions, which they say have evolved since the 1970s.
"The case is not over," says Allan E. Parker Jr., president of The Justice Foundation and the lead attorney for Norma McCorvey, whose identity was protected as "Jane Roe" when Roe v. Wade was originally decided by the Supreme Court in 1973. Back then, McCorvey asked the court to overturn as unconstitutional Texas laws prohibiting abortion except to save the life of the mother.
Although the Supreme Court found for her, she has since had a change of heart and is now appealing that ruling with a motion for relief from judgment. Within the next 14 days, she must decide whether to ask for a rehearing, call for an en banc hearing or appeal to the Supreme Court.
Parker says he will continue to fight in court, even though some constitutional law experts say he doesn�t stand a chance.
Last year, McCorvey filed a motion to overturn the Supreme Court decision on grounds that it is no longer just or equitable. The latest action on her case took place Tuesday when a federal appeals court in Texas dismissed her appeal, finding that McCorvey lacks standing because the case is moot.
"Mootness is a fatal issue for McCorvey," wrote Judge Edith H. Jones in her opinion for the U.S. Court of Appeals for the 5th Circuit in New Orleans. Quoting Sierra Club v. Glickman, Jones wrote, " 'In general, a matter is moot ... if the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.' " McCorvey v. Hill.
McCorvey�s motion is moot now that the statutes declared unconstitutional in Roe have been repealed, Jones said in the opinion for the court.
Jones also wrote a concurring opinion in which she lamented that the courts could do little to address this highly controversial matter. She suggested McCorvey has made the case that scientific knowledge has changed since the original decision.
"McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision," she wrote.
Jones also said the neonatal and medical science summarized by McCorvey "now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed. In sum, if courts were to delve into the facts underlying Roe�s balancing scheme with present-day knowledge, they might conclude that the woman�s �choice� is far more risky and less beneficial, and the child�s sentience far more advanced, than the Roe court knew."
Jones also criticized the original ruling for making abortion a constitutional issue. "The problem inherent in the court�s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the court will never be able to examine its factual assumptions on a record made in court."
Thomas Goldstein, a partner in Goldstein & Howe in Washington, D.C., often appears before the Supreme Court. He agrees with Jones that the case is moot, but he takes issue with her characterization that it�s unfortunate.
"She is absolutely right that the case is moot, and she�s right in understanding that it has no chance of going to the Supreme Court," Goldstein says. "But she is using it as a vehicle to highlight the concerns of people who oppose abortion and people who opposed Roe v. Wade as judicial lawmaking.
"I think it�s one piece of the puzzle that keeps the issue alive," he says. "It�s one in a series of reminders that the validity of Roe v. Wade is not uniformly accepted and that there is the prospect that someday, with different justices on the Supreme Court, Roe will be revisited again."
Bruce Rogow, a constitutional law expert and professor at Nova Southeastern University law school in Fort Lauderdale, Fla., chides Jones for what he views as an attempted "end run around Roe." Let the legislatures handle changes in social mores, he says.
"Judge Jones is mistaken in suggesting that courts should take the bait and revisit 30-year-old decisions based on claimed new social science or actual science," Rogow says. "If there are new social science theories that justify new legislation, then the legislatures can act. Then there would be an actual case or controversy for a court to resolve."
But that raises other problems, Parker says.
"A legislature could just defy the Supreme Court and say, �we want another ruling,� " he says.
Jones believes the matter won�t get that far.
"Legislatures will not pass laws that challenge the trimester ruling in Roe," Jones wrote in her opinion, noting that the test was refined in Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992).
Again, Rogow disagrees.
"The longer a legislature meets, the larger the threat to freedom," he says. "I think that she missed the boat on that. If anything, the greatest dangers to women�s rights are state legislatures. I could see this social science attack prompting a conservative legislature to adopt a statute that basically challenges Roe and Casey and sends a case back on its way up, hoping there will be a change in the court."
While the battle over whether to overturn Roe wages on, Rogow says he believes the ruling is here to stay.
"In the end, they will never undo Roe v. Wade because it is too ingrained in our culture," he says.
�2004 ABA Journal
Friday, February 10, 2006
Volume 5, Issue 6
A CROSSROADS ON ABORTION RIGHTS
Recent Appellate Rulings on Late-Term Law May Force High Court to Take the Issue
BY MOLLY McDONOUGH
When it meets in conference next Friday, the newly configured U.S. Supreme Court will likely find itself at a crossroads in the ongoing controversy over abortion rights.
Waiting to be decided is whether to take the case of Carhart v. Gonzales, No. 05-380, in which the St. Louis-based 8th U.S. Circuit Court of Appeals last year ruled unconstitutional the federal law banning so-called partial-birth abortions.
Meanwhile, two other appellate courts recently declared the statute unconstitutional. But the 2nd and 9th circuits, both of which ruled Jan. 31, took different approaches to formulating a remedy. In doing so, both referred to the Supreme Court�s most recent abortion ruling, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, issued Jan. 18.
In Ayotte, the court said an unconstitutional parental notification law need not be struck down in its entirety and remanded the case for consideration of the proper remedy. The court stressed the importance of legislative intent when deciding the remedy.
Justice Sandra Day O�Connor, now retired, wrote Ayotte and has supplied a crucial swing vote generally in favor of abortion rights. Her replacement is Justice Samuel A. Alito, whom abortion rights advocates fear and who abortion opponents hope will favor more restrictions.
The first test will likely come when the court decides whether to take Carhart, a challenge to the 2003 Partial Birth Abortion Ban Act. Observers say the two recent appellate rulings on the law and Ayotte may pressure the court to grant cert.
The 9th Circuit panel was guided by Ayotte and unanimously struck down the entire law in Planned Parenthood v. Gonzales, No. 04-16621. The 2nd Circuit took a more measured approach. Voting 2-1, it has asked the parties, in light of Ayotte, to brief the court on the issue of a possible remedy within 30 days. National Abortion Federation v. Gonzales, No. 04-5201-cv.
"Between those two cases, you�ve seen radically different approaches to both the federal ban and the effect of the Ayotte decision in the consideration of the matter," says Terre Haute, Ind., lawyer James Bopp Jr. He represents the Horatio R. Storer Foundation, which has consistently supported the federal ban and the ability of states to limit abortion rights.
Ayotte involved the constitutionality of New Hampshire�s parental notification act, which placed limits on doctors performing abortions on pregnant minors, and which lacked an exception for the health of the mother.
In the past, a law without a health exception would likely be declared unconstitutional because it would impose an undue burden on the mother, a guideline that O�Connor formulated.
But this time, O�Connor, joined by a unanimous court, sent the case back to a lower court to find a narrower remedy. O�Connor said that when confronting a constitutional flaw in a statute, the court prefers to "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 � or to sever its problematic portions while leaving the remainder intact," O�Connor wrote.
But O�Connor cautioned that injunctive relief may not be appropriate in some cases and in Ayotte in particular if the New Hampshire legislature would prefer to have the entire act struck down rather than accept a court-ordered remedy.
That�s largely why the 9th Circuit said it could not salvage even a portion of the federal statute. Discussing legislative intent, the opinion concludes, "Enacting a �partial-birth abortion ban� with no health exception was clearly one of Congress� primary motivations in passing the act."
The appeals court further concluded: "When Congress deliberately makes a decision to omit a particular provision from a statute�a decision that it is aware may well result in the statute�s wholesale invalidation�and when it defeats multiple amendments that would have added that provision to the statute, we would not be faithful to its legislative intent were we to devise a remedy that in effect inserts the provision into the statute contrary to its wishes. Such an action would be inconsistent with our proper judicial role."
The 2nd Circuit took a different approach. Judge Jon O. Newman also ruled the statute unconstitutional and asked for briefings on the remedy in light of Ayotte.
However, in his concurrence, Chief Judge John M. Walker offered a criticism of the Supreme Court�s abortion jurisprudence.
"I can think of no other field of law that has been subject to such sweeping constitutionalization as the field of abortion," Walker wrote. "Under the Supreme Court�s current jurisprudence, the legislature is all but foreclosed from setting policy regulating the practice; instead federal courts must give their constitutional blessing to nearly every increment of social regulation that touches upon abortion."
Walker homed in on the Supreme Court�s 5-4 decision six years ago in Stenberg v. Carhart, 530 U.S. 914, which struck down Nebraska�s partial-birth abortion law because it placed an undue burden on a woman�s right to an abortion and because it did not include a health exception.
"Faced with a statute that sought to ban a single method of abortion that many Americans�probably most Americans�find exceedingly offensive on moral grounds, the court determined that even though other methods of abortion are safe, a state cannot ban the procedure as long as it might be significantly safer for some unproven number of women," Walker complained.
Bopp and other partial-birth abortion law proponents say Ayotte may pave the way for the court to follow Walker�s path.
"My view of Ayotte is that it clearly pointed the way to upholding the partial-birth abortion statute because the court has clarified that the Stenberg decision should not be viewed as requiring a general health exception," Bopp says.
The simultaneous opinions, paired with Ayotte, have observers and parties from both sides preparing for a Supreme Court battle and a possible challenge to O�Connor�s undue burden analysis.
"One or all three are going to be granted review," predicts Jay Alan Sekulow, who represents the conservative American Center for Law and Justice, which as an amicus has supported the federal and state partial-birth abortion bans as well as New Hampshire�s parental notification law at the center of Ayotte.
Whether the Supreme Court consolidates the cases remains to be seen, Sekulow says. Either way, Sekulow is hoping for a completely fresh approach to abortion law, especially with Chief Justice John G. Roberts Jr. and Alito on the court.
"I think the whole undue-burden analysis may go by the wayside here," he says.
Indiana University constitutional law professor Dawn Johnsen, a former legal director for NARAL Pro-Choice America, says there is now a "good chance [the U.S. Supreme Court] will overrule Stenberg and uphold this law."
"Judge Walker sees what we all see, which is a very changed Supreme Court and the likelihood that the doctrine is going to change very substantially," she says.
Jennifer E. Dalven, deputy director of the ACLU Reproductive Freedom Project, has a different read on the developments.
"I think that the 9th Circuit got it right," she says. The panel "said very clearly that Congress was very clear that they did not want this law with a health exception. I�m hopeful that the 2nd Circuit will do the same thing."
Dalven, who asked the Supreme Court to strike down New Hampshire�s parental notification law in Ayotte, notes that despite Judge Walker�s complaints, the bottom line was that he found the federal ban unconstitutional because it lacks a health exception.
"We are feeling that this doesn�t change anything because every court has held that there must be an exception for a woman�s health," Dalven says.
�2006 ABA Journal
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