For the Record

Roe or No Roe, Right to Abortion Seen Eroding Under Newly Constituted Supreme Court

Susan A. Cohen
Reproductive rights are under attack. Will you help us fight back with facts?

First published online:

The U.S. Supreme Court is virtually certain to list rightward, including on abortion rights, now that John G. Roberts Jr. and Samuel A. Alito Jr. have joined the bench and Sandra Day O’Connor has retired. Whether the newly constituted Court eventually will overturn Roe v. Wade has dominated the national debate. Already, however, a subtle incursion appears to have begun that could lay the groundwork for a transformed national landscape affecting the right to abortion in practice.

On January 18, in her final opinion before retiring, O’Connor delivered the Court’s first ever unanimous decision relating to abortion. In Ayotte v. Planned Parenthood of Northern New England, the Court held that a New Hampshire parental notification law is unconstitutional because it does not allow physicians to waive the notice requirement in situations where teenagers need an immediate abortion for medical reasons. However, the Court also held that the lower court may have overreached in striking down the entire law, rather than simply blocking the law’s enforcement in those few cases where medical emergencies might exist.

The justices sent the case back to the lower court to reconsider the appropriate remedy. "We try to limit the solution to the problem," O’Connor wrote. At the same time, she stressed, the solution must be consistent with what the legislature intended. The challenge now facing the lower court is to determine whether by crafting the law as it did, the state legislature meant that it would prefer to have no law rather than one with a medical emergency exception. Depending on the answer, the court should either invalidate the whole law or leave it intact except as it would apply in those emergency situations.

Because New Hampshire’s underlying parental notification requirement was not in dispute, and there appears to be consensus—for now—on the necessity of at least some form of a health exception, the popular media largely described the Ayotte decision as a nonevent. Yet, the move toward considering only an abortion law’s potentially unconstitutional applications, rather than its unconstitutional provisions, represents a distinct new direction in abortion jurisprudence. Up to now, the courts have enjoined laws restricting access to abortion in their entirety if they contain any provisions that are unconstitutional on their face. The ruling in Ayotte could be seen as an open invitation to antiabortion legislators to enact ever more novel restrictions, relying on the courts to tailor those aspects of the law they might find unconstitutional as applied in certain circumstances. The impact could be considerable. Whereas in most areas of law legislators try to take into account the constitutional implications of the statutes they are considering, antiabortion legislators are deliberately promoting increasingly far reaching laws for the express purpose of pushing the constitutional envelope ever further toward eviscerating Roe.

Although O’Connor asserted in her Ayotte opinion that "we do not revisit our abortion precedents today," within a month of her departure the Court announced that it will revisit its abortion precedents this fall. In Gonzales v. Carhart, the Supreme Court will consider the constitutionality of the federal Partial-Birth Abortion Ban Act, which will give the Court an opportunity to revisit at least two of its most important past precedents: that abortions must always be available when necessary to protect a woman’s health and that determinations regarding health are to be made not by lawmakers but by individual doctors assessing the needs of specific women. Under these precedents, three different federal appeals courts have ruled that the law—which contains no health exception, based on a "finding" by Congress that the banned procedure is never necessary to protect a woman’s health—is unconstitutional. Congress defied those precedents in the apparent expectation that by the time its law was finally adjudicated, the Supreme Court’s membership would be different and the new lineup would yield a different result. The betting was right on the former; the signs are ominous for the latter.

—Susan A. Cohen