High Court Case Takes Aim at Heart of Roe

(WOMENSENEWS)–Don’t mistake Ayotte v. Planned Parenthood of Northern New England–the abortion case now before the Supreme Court–for a run-of-the-mill case about minors’ access to abortion.

Think of it as two poisonous arrows aiming straight for the heart of Roe v. Wade.

Yes, the New Hampshire statute in question does require that either a parent be notified at least 48 hours before a pregnant minor has an abortion or that the minor petition a court for permission to have an abortion if she is unable or unwilling to tell her parents.

But it is sadly symbolic of how far back women’s right to choose has already been rolled that the pro-choice challengers are not even targeting those aspects of the law.

Instead, they are challenging two toxic provisions hidden in the law that are dangerous to the lives and health of women of childbearing age.

The questions the sections in the law put before the court are whether protection of women’s health–the so-called health exception–can be absent from laws that restrict abortion, and whether the standard for challenging laws restricting abortion will be lowered to the point that a woman would have to actually be harmed before the law could be challenged.

If the high court upholds the New Hampshire law, poof, there goes Roe’s health standard that has continued to protect women even as states and Congress have chipped away at access to abortion. And poof, there goes the legal standard allowing us to immediately prevent these laws from being enforced when a court deems they are likely to cause harm to women.

Health Exceptions Are Real

The health exception isn’t abstract. Here’s a real example.

Christy (not her real name of course), a 17-year-old, has kidney disease. She is pregnant. She has been to her doctor who told her that continuing her pregnancy could kill her. Christy’s parents are ardently anti-choice and, in fact, she has picketed Planned Parenthood with them. They have threatened that she will be kicked out of the house if she comes home pregnant.

She does not know where to turn and she has no money, so she delays a few weeks. By the time she seeks an abortion, she is experiencing signs of renal failure and the doctor feels she needs to terminate the pregnancy immediately to avoid permanent disability or death.

Most of us would say, first of all, let’s protect Christy’s health. But even though the primacy of protecting a woman’s health as well as her life has been upheld many times as a fundamental principle of Roe, the New Hampshire law would not offer that option. Its intent is to push back if not to eliminate Roe’s protection of a woman’s health and to set a dangerous legal precedent for doing so.

Actual Harm Before Court Decision

Currently, when there is reason to believe a law will be found unconstitutional or its enforcement could cause significant harm, it can be challenged even before it goes into effect in order to prevent the harm from occurring while the court deliberates.

If the New Hampshire law is upheld, it would effectively require a woman like Christy to die or experience dire health consequences before a future law could be challenged in court.

The new standard would be that only if your daughter dies, or her health is otherwise irreparably damaged and she is at risk, then you can sue. What kind of justice is that?

Almost 33 years ago, Roe v. Wade struck down laws criminalizing abortion and established women’s civil rights to make their own childbearing decisions during the early stages of pregnancy.

The Ayotte case challenges Roe by raising the fundamental question of whether there is respect for a woman’s personhood and equality under the law. During oral arguments before the Supreme Court on Nov. 30 it would have been quite easy to miss all of this.

Slicing and Dicing Women’s Health

Instead of grappling with these real issues, lawyers from both sides and the justices through their questions verbally danced on the head of a pin, parsing what constitutes an emergency health exception. They sliced and diced real live women’s health into the smallest of particles to ascertain how the tiniest possible portion of justice might be served up before violating the Constitution. Justice Stephen Breyer even drew laughter in the usually somber courtroom by suggesting that the doctor would of course have his attorney by his side in the hospital.

Let’s face it: No abortion case is ever just about abortion.

It is about women and our place in U.S. society. It’s about the nature and purpose of human sexuality and the level of trust our society is willing to place in individuals’ moral capacity to make their own decisions about childbearing.

It is also about two social choices. One says women have the human right to make our own childbearing decisions without coercion and without political intrusion. The other devalues women and places the fetus higher in the law and in the culture.

O’Connor Wanted by Both Sides

Both sides of this case, for different reasons, desperately want it decided while Justice Sandra Day O’Connor, who has consistently been the pivotal fifth vote to uphold Roe’s protections, remains on the court.

The pro-choice side wants one more affirmation of Roe to bolster its strength as a precedent before the court changes composition.

The anti-choice side is willing to tolerate another affirmation of Roe to avoid stirring up pro-choice consternation at an inopportune time. They would rather hold their poison arrows in their quiver until after Judge Samuel Alito is confirmed to the Supreme Court.

As a justice department attorney in the Reagan administration, Alito proposed the incremental road map to overturn Roe that is now coming to fruition. Later, as a federal judge, he wrote opinions supporting many restrictions on abortion. For the anti-choice side trading an Ayotte loss for an Alito confirmation is like losing a battle to win the war on women’s reproductive freedom.

Yet, the anti-choice forces may not have to console themselves with such a trade-off. Confirmation hearings begin Jan. 9, but this story will not be over by then. From the Supreme Court justices’ questioning, it appears they may send Ayotte back to the lower court for reconsideration. So this very case could conceivably be back on the Supreme Court docket after Alito–if he is confirmed–joins the court.

More alarming, three abortion ban cases are on their way to the court. They will likely be consolidated and heard in the next year or so. Again, if Alito is confirmed, he may well be the fifth and deciding vote to overturn Roe, either though the back door as in the New Hampshire case or through other laws that eviscerate the meaning of Roe.

Keep your eye on the trajectory of those poison arrows and think about what will happen to the next Christies in the post-Alito era.

Gloria Feldt is the author of "The War on Choice: The Right-Wing Attack on Women’s Rights and How to Fight Back" (Bantam, 2004). She was president of Planned Parenthood Federation of America Inc. when the decision was made to challenge the New Hampshire law in what is now known as Ayotte v. Planned Parenthood of Northern New England et al. She can be reached through http://www.gloriafeldt.com