Precedent at Stake in Supreme Court Abortion Case

The Supreme Court on Wednesday will hear its first major abortion case in five years, but what justices will ultimately decide is far from clear.

Ayotte v. Planned Parenthood of Northern New England concerns a New Hampshire parental notification law that the First Circuit Court of Appeals found unconstitutional because it did not contain an exception for the mother's health and contained insufficient provisions to save the mother's life.

The case has the potential to leave a huge footprint on abortion law across the country and is being argued less than seven weeks before Senate confirmation hearings are held for Samuel Alito, President Bush's nominee to replace retiring Justice Sandra Day O'Connor.

The New Hampshire attorney general, Kelly Ayotte, argues that no higher law mandates inclusion of the health exception, and that the law's judicial bypass provision allows a judge to authorize an abortion in an emergency if the minor does not want to notify her parents.

More interestingly, Ayotte insists that the act cannot be deemed unconstitutional unless it is "unconstitutional in every conceivable application." She cites a 1987 opinion that laid out standards for which facial challenges — or challenges to laws as they are written, rather than applied — are ruled unconstitutional.

The court acknowledged in United States v. Salerno, which addressed pretrial detention, that the bar it was setting for facial challenges was very high. But the late Chief Justice William H. Rehnquist wrote that the fact that the act in question "might operate unconstitutionally in some conceivable set of circumstances is insufficient to render it wholly invalid."

Since Salerno, legal scholars and even some justices have said the standard set for facial challenges is extreme and often not followed by the court itself.

"If the court concludes a health exception is required, is that something that the court should add into the statute?" asked Gillian Metzger of Columbia University Law School in an interview with

"Or should the court conclude the statute is non-severable — for example, they can't figure out what the right health exception would be — and the whole statute falls. That makes it a facial invalidation," Metzger said.

In theory, Metzger and others have argued, many challenges before the court are in some sense facial challenges. And most abortion cases that have been decided by the court were brought by third parties, rather than a plaintiff alleging actual harm. But Justice Antonin Scalia, for instance, has frequently dissented in those cases, having adopted the standard set by Salerno.

"The court uses the term facial challenge without defining what it means," said Metzger, a former law clerk for Justice Ruth Bader Ginsburg.

Planned Parenthood and its fellow respondents argue that court precedent dictates the statute is unconstitutional, because the lack of a health exception clearly is. The court has repeatedly said that laws restricting abortion must include exceptions in cases where the life or health of the mother is imperiled.

The respondents are arguing that "a long line of precedent [makes] clear you have to have a health exception — the lack of a health exception is not severable. Therefore, the statute should be facially invalidated," Metzger said.

The Roe v. Wade decision that legalized abortion in 1973 directed legislatures that seek to limit abortions to provide exceptions "for the preservation of the life or health of the mother." Later, Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed life and health exceptions, and consequently the majority of U.S. abortion laws include them.

But while the 1992 Casey decision affirmed the central holdings of Roe, it also recognized the state's interest in protecting unborn life so long as an "undue burden" was not placed on the mother. In other words, Casey — widely seen as a victory for the pro-choice movement — allowed lawmakers to chip away at access to abortion across the country.

Asked why lawmakers didn't simply include a health exception in the statute, the New Hampshire attorney general's office told that the legislature's ability to regulate abortion is at stake.

"Because we feel there was a good-faith argument to make that the statute as written was constitutional, we feel we have an obligation to make that argument if at all possible," said Dan Mullen, associate attorney general.

"Planned Parenthood readily concedes that in almost every single application, with the possible exception of a medical emergency situation, the act operates constitutionally," Mullen said. "New Hampshire is within its rights to make the policy call to have a judge look at [a possible emergency] as opposed to a doctor making the call himself. We have approached this all along as defending the ability of the legislature to enact the statute."

But hanging in the balance is a great deal more than the legislature's autonomy. Should the court agree that challenges to abortion statutes must pass the Salerno test, pregnant girls and women will have to bring suits alleging they are being harmed by a law. The time and cost involved in such legal challenges could be discouraging to many potential plaintiffs, and may thus embolden pro-life lawmakers, critics say.

"It is a way to win this case without having the court address the constitutionality of the parental notification provision and to ward off many otherwise effective future legal challenges, so restrictions can only be challenged as applied in a particular case," said Neil Siegel of Duke University School of Law. "It's a way to not only win, but to win big."

Ayotte also argues that the First Circuit veered from Supreme Court tradition by ignoring the "practice of adjudicating constitutional questions only in concrete cases and controversies."

Planned Parenthood, which was joined in its challenge by two health clinics and a physician, counters that the "concrete case" Ayotte is advocating would be a pregnant girl experiencing serious complications that are not immediately life-threatening.

According to Ayotte, "you have to have somebody with the medical emergency before you go to court," said Priscilla Smith, an attorney for the pro-choice organization Center for Reproductive Rights. "The point is, a medical emergency means now," she said.

Smith, who was lead counsel on one of three challenges to the federal Partial Birth Abortion Act, agreed that a ruling for Ayotte would open the door to "egregious" restrictions on abortion.

"The court has a duty not to strike down statutes based on worst-case analyses, but the court also has a duty to prevent infringement of constitutional rights, especially ones that will result in bodily injury," Smith said.

All three challenges to the partial birth law were upheld by circuit courts because of the lack of a health exception. If the Supreme Court drops the health exception and adopts the Salerno test, then the precedent set by Roe, Casey and 2000's Stenberg v. Carhart — which struck a state ban on partial birth abortion — would be rendered flimsy. Overturning Roe would in effect not be the battle cry it is today because doing so would be redundant.

"Individual plaintiffs would have to go into court and show the regulation was unconstitutional as applied to them, and over time different plaintiffs would chip away at the unconstitutional features of a new abortion regulation. It would be time consuming and expensive," said Jack Balkin, editor of "What Roe v. Wade Should Have Said."

And in a blow to Justice O'Connor, who has been a key swing vote in abortion cases, a decision for Ayotte would render meaningless the "undue burden" test, which she proposed more than two decades ago. The court later adopted that yardstick in determining whether statutes went too far in inhibiting a woman's access to abortion.

Anti-abortion activists are hoping Alito, a conservative 3rd Circuit of Appeals judge who opposes abortion, will be confirmed to the court before the case is decided. In that event, O'Connor's vote will not count, and the case may have to be argued again before a court that includes Alito.

While Alito has deferred to the precedent set in Casey as a lower-court judge, he could choose to abandon it as a high court justice. Alito has also been less inclined than his 3rd Circuit colleagues to overturn restrictions, so he may be more willing to accept Ayotte's argument that the act sufficiently protects minors' health without an explicit exception.

According to Balkin and Siegel, the vote to watch belongs to Justice Anthony Kennedy, who has opposed overturning Roe but been more willing to uphold restrictions on abortion than O'Connor.

"If he sides with the liberals then it doesn't matter what O'Connor does" because there would be a five-vote majority, Balkin said, based on the assumption that Chief Justice John Roberts would join fellow conservatives Scalia and Clarence Thomas.

"My suspicion is Kennedy probably will not want to adopt a rule that would gut the practical effect of Casey, which is a decision he wrote," Balkin added. "On the other hand, he might choose a narrower way of upholding the New Hampshire law. He might remand to see if the health exception can be applied in the language."

Siegel noted that because Kennedy dissented in Stenberg, which invalidated a restriction because it lacked a health exception, he could just as easily join the conservatives.

"I don't think it's clear at all the court will go with the health exception. He's the swing vote now — he will be the new center of gravity going forward," Siegel said.

The court on Wednesday will also hear arguments in a second case that involves abortion activists but actually concerns two laws more commonly associated with organized crime: the Racketeer Influenced and Corrupt Organizations (RICO) Act and the Hobbs Act.

Among the issues before the court are whether private equity relief can be sought under RICO, and whether the Hobbs Act can be extended to cover acts or threats of violence regardless of whether extortion is involved.