A dodge on abortion
THE SUPREME COURT justices are taking no chances while the makeup of the court is still in flux. That seems obvious from the unanimous ruling yesterday that returned a New Hampshire abortion law to a lower court for correction, neatly sidestepping any need to address Roe v. Wade head-on.
The New Hampshire law, which passed the Legislature by a single vote in 2003, requires minors to notify their parents 48 hours before obtaining an abortion. At least 40 states have such laws. What made New Hampshire's statute so controversial -- and what propelled it to the high court -- is that it explicitly lacks an exemption for the health of the mother, as required under the 1973 Roe v. Wade decision. A district court and a federal appeals court had both invalidated the law on these grounds, but the sponsors appealed.
While making it clear that including a health exemption in any state abortion law is still necessary to pass constitutional muster, Justice Sandra Day O'Connor wrote that the lower courts had gone too far by declaring the entire New Hampshire law unconstitutional, when only the provisions that failed to protect the health of the mother were at issue. ''Generally speaking . . . the Court tries not to nullify more of a legislature's work than is necessary," she wrote.
O'Connor complained that the US Court of Appeals had used ''the most blunt instrument" when more precise solutions were available. The justices returned the case to the lower federal courts, asking them to find a better way to satisfy the Constitution without trampling the Legislature's intent.
In many ways this decision is the crystallization of where abortion rights stand in the country today, as the Supreme Court is expected to replace the consensus-building O'Connor with a far more conservative member, Judge Samuel Alito. In memos to the Reagan administration, Alito famously advised a state-by-state strategy of chipping away at access to abortion until the time seemed ripe to mount a direct attack to Roe, which legalized the procedure in most cases. Whether following Alito or not, this is precisely the strategy that abortion opponents have used, passing hundreds of restrictions in individual states regarding minors, waiting periods, state funding, health facilities, federal insurance plans, and licensing requirements, until in some rural counties women have no access to abortion at all.
Yesterday the abortion rights group NARAL Pro-Choice America released its 15th annual report card on reproductive rights in the states (Massachusetts received a grade of C-plus). By allowing most of the New Hampshire law to stand, the Supreme Court missed a chance to reaffirm Roe as settled law, ceding the field to the new and more hostile court majority to come.
