Will the Court Move the Goalposts Again?

By Susan E. Wills
Special to the Herald
(From the issue of 7/28/05)

Ever since Roe v. Wade, the U.S. Supreme Court has constantly changed the rules of the game in cases involving abortion. Doctrines and principles of interpretation that the Supreme Court applies in every other context are cast aside to achieve abortion-favorable results.

Retiring Justice Sandra Day O’Connor condemned the Court’s tendency to move the goalposts:

"The Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. … Today’s decision … makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion" (dissent in Thornburgh v. American Coll. of Obst. & Gyn., 1986).

Another obvious example is the 2000 decision Hill v. Colorado. Normally, the Court reads the First Amendment very broadly to protect free speech, no matter how offensive (protecting KKK marches, flag burning, pornography). But when it involves free speech to educate or counsel someone on public property within 100 feet of an abortion clinic, look out. You may get jailed if you walk within eight feet of such person.

Dissenting in Roper v. Simmons (in which the Court invalidated state statutes permitting the execution of anyone who committed a capital offense before age18), Justice Antonin Scalia noted the differing standards used to assess maturity/responsibility in different contexts. States are allowed to prohibit those under 18 from drinking, voting, serving on juries and marrying without parental consent, he said. Yet girls as young as 13 have been found sufficiently mature to reach a decision to have an abortion without any parental involvement.

This fall the Supreme Court will hear Ayotte v. Planned Parenthood of Northern New England, a challenge to New Hampshire’s parental notice law. This case presents another serious deviation from standard jurisprudence — ironically, one introduced by Justice O’Connor. For years, courts have been striking down abortion regulations even before they go into effect on the basis of preemptive "facial challenges." Such laws are found invalid if they "impose an undue burden" on the "right to abortion of a significant number of women," applying the malleable standard invented by Justice O’Connor in Planned Parenthood v. Casey (1992).

But in every other area of law, determining constitutionality in a facial challenge is "the most difficult challenge to mount successfully since the challenger must establish that no set of circumstances exists under which the Act would be valid" (United States v. Salerno, 1987). This normally guarantees a full trial on the merits.

Ayotte may also resolve confusion over the Doe v. Bolton "health" exception, which allows circumventing any abortion regulation by claiming the mother’s health necessitates taking her child’s life (even a child who is almost completely born). In the past, a "health" exception was understood to be required only if "continuing her pregnancy would constitute a threat" to her health. (Justice Thomas, dissenting in Stenberg v. Carhart.) But in Ayotte, federal judges are claiming that a pregnant minor’s "health" can be threatened by a delay of 48 hours to notify a parent and by a delay of seven days for a judicial bypass proceeding in lieu of parental notice (or 14 days should an appeal be necessary).

Will the Court in Ayotte go back to the official rule book on constitutional interpretation, or continue making up rules to fit the outcome? It’s anyone’s guess. Stay attuned.

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