Endangering Roe

On November 30, the Supreme Court heard oral arguments in Ayotte v. Planned Parenthood, the most important abortion case it has heard since it struck down a law banning so-called partial-birth abortion in its 2000 decision Stenberg v. Carhart. While nominally about the constitutionality of a parental notification law, the current case has potentially far-reaching consequences because it presents the opportunity for the court to adopt the reasoning about notifying husbands about abortion that Supreme Court nominee Samuel Alito used in his dissent in Planned Parenthood v. Casey. Some analysts claim Alito's abortion jurisprudence would dramatically change the Supreme Court's approach to the issue. But Ayotte shows how much of an effect Alito could have on restrictions on reproductive freedom even if Roe v. Wade is formally upheld. Ayotte could make it almost impossible for many poor women in this country to obtain safe abortions.

Ayotte contains two potential land mines that would expand the ability of states (and the federal government) to regulate abortion. First, the New Hampshire statute at issue in Ayotte requires minors to notify their parents 48 hours prior to obtaining an abortion, except in cases where the life of a young woman is threatened. Clearly, this means that young women may be stopped from obtaining abortions even if they face serious health risks. The statute does contain a judicial bypass provision, which would allow patients to petition the courts for an exemption, but several medical organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, have argued as amici that potential exemptions aren't enough. Even if an exemption can be obtained (which is far from a given), the delays in the process could still have serious health consequences.

In addition, however, upholding the New Hampshire statute would result in overturning a major component of Roe. Roe's "trimester framework" holds that after viability, the state can "regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

This framework was largely thrown out in Planned Parenthood v. Casey, but the court has generally required that abortion regulations incorporate an exemption for abortions performed to preserve a woman's health. It was the failure to include a health exemption that five members of the court (including Justice O'Connor) cited in striking down Nebraska's partial-birth abortion statute in Carhart. The New Hampshire statute also fails to include a health exemption, an omission made in response to pro-life activists who feel the health standard leaves too much discretion to doctors. Upholding the New Hampshire law, which is, like Nebraska's partial-birth law, a clear statute that fails to include the exemption required by Roe, would overturn Carhart and ensure that the federal partial-birth law (which also does not include a health exemption) would also be upheld. New Hampshire has argued that despite the lack of an exemption, its statute does not threaten anyone's health because of the possibility of a judicial bypass, and because doctors would have a constitutional defense to prosecution if they performed an illegal abortion in a medical emergency. Adopting this new standard would also almost certainly allow states to pass other regulations that do not include health exemptions. This would have a potentially chilling effect on doctors, who would be much more likely face potential prosecution for exercising their medical judgment.

In addition, there could be an even more damaging aspect to the case. A legal issue known as “facial challenge,” which allows laws to be challenged without requiring proof that every application of the law would be unconstitutional, was vigorously debated in the oral arguments for Ayotte. Generally, the court has permitted facial challenges in areas including abortion and free speech. Alongside this branch of doctrine, however, is the so-called Salerno rule, which holds that a law can only be subject to a facial challenge if “no set of circumstances exists under which the act would be valid.” Otherwise, it requires that only parties already suffering under an illegal regulation may petition for relief, and this relief may be individual (rather than the collective remedy of striking down the statute).

The consequences of a decision concerning which standard is used can be seen in the disagreement between Alito and the Supreme Court's plurality in Casey. Alito, in voting to uphold the spousal-notification provision of the Pennsylvania law, argued that since few women seeking abortions are married and most married women will inform their husbands without state coercion if they plan to seek an abortion, then the law affected only a small number of women and was therefore not facially invalid. The Supreme Court rejected Alito's analysis. Both outcomes are extensions of a reasoning that demonstrates the potential effects of using the Salerno rule in abortion cases. If abortion regulations have to be unconstitutional in every instance, it is difficult to imagine a regulation short of a ban that could be struck down (Indeed, if Salerno is taken literally, even a ban might not be struck down, as a ban could be constitutionally applied to some post-viability abortions). Ayotte presents the possibility that the Salerno standard will be adopted, which would greatly expand the ability of states to restrict access to abortion.

Unless five justices -- other than O'Connor -- vote to strike down the New Hampshire law, the case will most likely be postponed until O'Connor's replacement is confirmed. If the court upholds the New Hampshire statute in spite of the lack of a health exemption and adopts the Salerno rule, it would overturn Roe in all but the most formal sense. States would be able to construct regulatory obstacle courses that would create burdens for many women seeking abortions and put the already small number of doctors willing to perform abortions at increased risk of prosecution. At the same time, attorneys would have to devote years to expensive, fact-intensive, litigation to protect the reproductive rights of American women.

What is particularly objectionable is the effect this method of regulating abortion would have on poor women and women in rural areas. American abortion law has always entailed hypocrisy and inequity; before Roe, even in states where abortion was formally banned, doctors performed a significant number of safe abortions in hospitals. Women from affluent families could get access to safe abortions, while less advantaged women were consigned to back-alley butchers. Most of the regulations currently permitted by Casey have the same effects. Regulations such as waiting periods and parental involvement requirements have far more restrictive effects on poor women and women in abusive families than on middle-class women in stable families. Perversely, adopting the Salerno standard would make these inequitable effects an argument in favor of the constitutionality of such regulations.

Scott Lemieux is Assistant Professor of Political Science at Hunter College, CUNY. He contributes to the group blog Lawyers, Guns and Money.

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