MATTERS OF LIFE AND DEATH Pro

MATTERS OF LIFE AND DEATH
Pro-lifers hail Supreme Court ruling
Decision 'lays the foundation to chip away at Roe'

Posted: January 19, 2006
1:00 a.m. Eastern

Pro-life groups claimed victory yesterday after the Supreme Court's unanimous decision to allow reconsideration of New Hampshire's abortion law requiring parental notification for minors.

"I believe this case lays the foundation to chip away at Roe v. Wade," said Mathew D. Staver, president and general counsel of Florida-based Liberty Counsel, referring to the 1973 decision that rescinded all state laws banning abortion.

The decision yesterday returns Ayotte v. Planned Parenthood to the 1st U.S. Circuit Court of Appeals in Boston where it was ruled unconstitutional.

The statute in question requires that a parent be informed 48 hours before a minor child has an abortion. Opponents – and the lower courts that struck it down – argue it makes no exception for a medical emergency that might threaten a youth's health. But the Supreme Court ruled "the lower courts need not have invalidated the law wholesale."

Explaining its decision to vacate the case, retiring Justice Sandra Day O'Connor wrote for the court, "making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a far more serious invasion of the legislative domain than we ought to undertake."

Staver contended the decision clearly will make striking down abortion legislation in its entirety much more difficult.

While the high court began its decision by stating it was not "revisiting our abortion precedents today," justices clearly stated parental involvement laws are permissible, he pointed out.

"Courts have frustrated legislators by striking down abortion laws when only a narrow portion of the law could have been stricken," Staver said. "… Untold numbers of babies have lost their lives as a result of courts broadly striking down laws based upon rare applications to unusual circumstances."

In the future, he said, most of these laws will be allowed to operate to protect life in 99 percent of the cases, while the 1 percent of questionable applications will be stricken.

David Garrow, a Supreme Court historian at Cambridge University, however, insisted the decision "can be read as another step toward a long-term middle-ground truce, or at least stalemate," according to the Associated Press.

In contrast, Steven H. Aden, chief litigation counsel of the Christian Legal Society's Center for Law and Religious Freedom, called the decision a "stumbling block to the pro-abortion movement."

"No longer will abortionists be able to have statutory restrictions on abortion struck down completely simply because a judge believes that they could pose constitutional problems in unusual, hypothetical cases," he said.

Alliance Defense Fund Senior Counsel Jordan Lorence said the Supreme Court rejected the extreme legal standards demanded by abortionists challenging laws regulating abortion."

ADF and CLS filed a friend-of-the-court brief in the case, presenting medical evidence that disputes Planned Parenthood's contention that young girls must obtain immediate abortions whenever acute medical complications occur during pregnancy.

"New Hampshire's statute properly recognizes the role of parents in serving the best interests of their children with regard to important medical decisions," said Aden.

ADF noted O'Connor suggested in her opinion that the court might have ruled differently in its 2000 partial-birth abortion case, Stenberg v. Carhart, if it had been asked to merely limit the reach of the Nebraska statute rather than strike it down completely.

Dr. David Stevens, executive director of the 17,000-member Christian Medical Association welcomed the decision, saying the case "raises the fundamental question of whether parents have a right to guide their own child's healthcare."

"Polls suggest that the American people have resoundingly embraced this basic principle as it relates to notification on abortion," Stevens said. "Any good doctor realizes that the input of parents remains one of his or her most important assets in understanding children patients and providing appropriate care."

CMA Associate Executive Director Dr. Gene Rudd, an obstetrician, asked, "How many women today are still dealing with the aftermath of an abortion they were pressured into as teenagers? How might their lives have been different if their parents had been made aware and provided them with the kind of counsel that only a parent can provide?"

Nikolas T. Nikas, president and general counsel of the Bioethics Defense Fund, said the decision "rejects the old 'abortion distortion' double standard that was prevalent in federal court review of state pro-life statutes."

"The abortion distortion is when federal courts allowed abortion proponents such as Planned Parenthood to facially challenge and strike down the entire abortion regulation if they could come up with even one possible scenario where the law could be applied in an unconstitutional manner," explained Nikas, who participated in the legal team that prepared New Hampshire Attorney General Kelly Ayotte for Supreme Court oral argument.

James L. Hirsen, adjunct professor of law at California's Trinity Law School praised the decision as "a return to common sense and justice at the U.S. Supreme Court."

Roberts makes a difference

Kelly Shackelford, chief counsel for the Texas-based Liberty Legal Institute, called the decision a "great victory for judicial restraint."

Shackelford said newly confirmed Chief Justice Roberts is "truly making an impact."

"This signals an important shift in the U.S. Supreme Court to turn from its practices of judicial activism," Shackelford said. "The court's decision showed that they will now exercise restraint and refuse to strike down an entire statute based on broad, hypothetical situations introduced by opposing counsel. This skepticism is widely applauded."

Cathy Cleaver Ruse, senior legal fellow at the Family Research Council, says the ruling "is a win for the pro-life movement."

"This is a great victory for the future of parental notification laws," she said. "This ruling is encouraging and gives great momentum to other states looking to protect parental rights and safeguard the health of underage girls."

FRC President Tony Perkins said the decision also will provide fresh momentum for passage of the Child Interstate Abortion Notification Act, which Planned Parenthood and its allies have blocked in Congress.

Troy Newman, president of Operation Rescue, called the ruling "good news and bad news for us."

"We are glad that the court has indicated that parental notification laws are indeed constitutional, but we have found that the 'life and health' exceptions to these kinds of laws are loopholes that end up unnecessarily costing the innocent lives of pre-born babies," he said. "In that respect we are disappointed that O'Connor has encouraged loopholes that could make a life-saving law that protects parental rights nearly meaningless."

Newman said the decision "emphasized the fact that we need a rapid vote on Judge Samuel Alito," whose nomination awaits approval by the Senate Judiciary Committee before a final vote in the full Senate.

"We look forward to the day when both pro-abortion O'Connor and her 'undue burden' standard are gone," Newman said.