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July 5, 2005

The Supreme Court and abortion rights

The Supreme Court Nomination Blog highlights an unintended—and unwelcome—consequence of O’Connor’s retirement:

Justice O’Connor’s retirement greatly enhances the importance of Ayotte v. Planned Parenthood, the New Hampshire abortion parental consent case. At the time cert. was granted, there was considerable speculation about which group of the nine Justices had agreed to hear it. The Court had recently turned down a case presenting similar issues, and there certainly was no obligation to hear Ayotte.
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.

Since no conservative appointee will willingly reaffirm a precedent that restricts regulation of so-called partial-birth abortions—Stenberg struck down a Nebraska law banning the procedure—Ayotte will be a key early indicator of the future of abortion rights after O’Connor.

Posted by Stephen at 12:08 AM in Legal issues | Permalink | TrackBack (0)

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