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July 21, 2005

Roberts: abortion is the issue

If Roberts is confirmed—and given how Democrats are rolling over, that seems inevitable—his stance on abortion will be tested pretty swiftly.

Back in May, the Supreme Court agreed to hear Ayotte v. Planned Parenthood, a critical New Hampshire case that explicitly challenges abortion rights:

The law in question would have required health care providers to notify a parent at least 48 hours before providing an abortion to a woman under the age of 18, or for young women to obtain a court waiver of this requirement. The law contained no exception for circumstances in which the delay would seriously threaten a young woman’s health. Instead the law would have forced physicians to wait to provide emergency medical care until the young woman was facing imminent death.
… The New Hampshire law […] was struck down by the Boston-based First Circuit Court of Appeals, which ruled the 2003 law unconstitutional for failing to provide an exception to protect the minor’s health in the event of a medical emergency.

As I pointed out in a previous post, it was never really clear why the Court decided to take Ayotte, particularly as it had recently turned down a similar case. There is, however, one possible explanation:

At the time cert. was granted, there was considerable speculation about which group of the nine Justices had agreed to hear it.
… One theory for the grant is that the more liberal Justices, concerned with the prospect of Justice O’Connor’s eventual retirement, had provided four votes to take the case before she left in order to solidify the holding of Stenberg v. Carhart that statutes substantially restricting the availability of abortion must have an exception for the health of the mother.
If that speculation is correct, then we now know that those Justices made a grave miscalculation. Ayotte, rather than a vehicle to reaffirm and potentially expand Stenberg, now stands as a ready-made vehicle to overrule or at least substantially limit it.

And that is exactly how Roberts—who has the support of hate groups such as Operation Rescue—will want to use it. As I wrote in my earlier post, it’s hard to imagine any conservative appointee reaffirming a precedent that restricts regulation of so-called partial-birth abortions (Stenberg struck down a Nebraska law banning the procedure). Particularly an appointee like Roberts, given his record on these issues.

Ayotte and its potential consequences mean that reproductive freedom must be at the heart of the Senate nomination hearings. Planned Parenthood nails it:

“All Supreme Court justices have a great impact on women’s health, but Justice O’Connor’s replacement will play a truly pivotal role,” [said Karen Pearl, interim president of PPFA]. “We expect Judge Roberts to state his position on reproductive freedom fully and completely and answer thoroughly any questions posed by the Senate on his commitment to upholding protections for women’s health and safety. Our own case, Ayotte v. Planned Parenthood, will determine whether the high court believes the Constitution protects the health and safety of women.”

This is a nominee in desperate need of borking. Not gonna succeed, of course, but I can dream (yet again).

Posted by Stephen at 12:41 AM in Legal issues | Permalink | TrackBack (0)

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