Kelly Ayotte

WASHINGTON, D.C. (WOMENSENEWS)–All eyes were on new Chief Justice John Roberts yesterday as he presided over the oral arguments for two far-reaching challenges to abortion laws.

Roberts, a conservative who deflected most questions about abortion at Senate hearings in September during his nomination to the high court, revealed little on questions over whether parental notification laws must require an exception for the health of the mother and whether federal laws against racketeering and extortion can be used against protesters who block access to abortion clinics.

But observers had their first insight into the disposition of the new court on the explosive issue of reproductive rights when a crucial question arose: whether abortion laws can take effect while they are being challenged as unconstitutional.

On several occasions in the hearing of Ayotte v. Planned Parenthood of Northern New England, Roberts questioned the need to strike down an entire abortion statute based on a single sticking point–in this case, the lack of an exception for the health of the mother.

In arguments before the justices, Kelly A. Ayotte, the attorney general of New Hampshire, rejected the notion that the lack of the health exception posed a problem, arguing that a “judicial bypass” provision would cover medical emergencies by enabling doctors to get quick permission from a judge to circumvent the law’s requirement that physicians notify a parent of a pregnant teen at least 48 hours before performing an abortion.

Several of the justices seemed unsatisfied with that explanation.

But Roberts seemed to suggest that even if the judicial bypass provision is deemed problematic, it should not necessarily invalidate the entire statute.

Justice Weighs Law against Rare Cases

“It’s a problem that arises only in emergency situations,” Roberts said. He then questioned whether those rare cases should “implicate the vast majority” of cases in which the pregnant teen’s health is not at risk.

That statement, along with other comments, suggested he was searching for a way to change the current standard of jurisprudence, which permits courts to stop abortion laws from taking effect while the courts decide if the laws pass constitutional muster.

Jennifer Dalven

Challengers to the law, represented by Jennifer Dalven–deputy director of the New York-based Reproductive Freedom Project of the American Civil Liberties Union–argued that the law is unconstitutional on its face, regardless of the frequency of health emergencies.

Reproductive health advocates have argued that changing the standard of jurisprudence so that abortion-related laws would be in force until they are ruled unconstitutional would compel women to obey them even as the laws are being challenged.

Meanwhile, several justices raised questions about the central element of the case–whether parental notification laws must provide an exception for the health of the mother–as Supreme Court precedent has held. Many questioned why the New Hampshire law makes an exception for the mother’s life but not her health and expressed concern about pregnant minors who may need immediate medical attention.

Justice Antonin Scalia brushed aside those fears, arguing that a doctor could quickly get around the 48-hour notification requirement with a judge’s permission.

It only takes 30 seconds to place a phone call to a judge, Scalia said. If a doctor can’t wait that long, he or she “better not put on his gloves” before performing an abortion, he quipped.

But Dalven responded that the judicial bypass provision is unconstitutional because it would necessarily delay medical attention, a potentially “catastrophic” situation for a pregnant teen whose health is at risk.

Observers also paid close attention to Sandra Day O’Connor, a supporter of abortion rights who has cast the swing vote on several key abortion cases and seemed to be searching for a compromise in the Ayotte case.

But O’Connor may not be able to influence the outcome this time.

She has said she plans to step down from the bench immediately after her successor wins confirmation. Samuel Alito, the conservative appellate judge nominated to replace her, has not yet run into significant resistance on Capitol Hill. If he takes his seat before the court delivers a ruling on the Ayotte case–and the eight remaining justices are evenly divided–Roberts could order a rehearing of the oral arguments.

Making the Media Case

After the oral arguments, activists and protestors on both sides of the case gathered on the front steps of the Supreme Court to make their case to the media.

Both expressed mixed reactions.

Karen Pearl, interim president of New York-based Planned Parenthood Federation of America Inc., said she was “gratified” to hear that “the court cared very deeply” that women’s health should be protected. “In general, the justices really did seem to understand the importance of protecting women’s health,” she said. “The arguments seemed to go very, very well on that issue.”

But Kim Gandy, president of the National Organization for Women in Washington, D.C., and Eleanor Smeal, president of the Feminist Majority Foundation in Arlington, Va., said they were concerned that some of the justices appeared eager to narrow the standard of review as it applies to abortion laws.

Roberts “seemed to imply that because medical emergencies are not a large fraction of abortions, (the New Hampshire law) could be upheld,” Gandy said.

Supporters of the law agreed. “From our perspective, that would be a possible very good development in abortion jurisprudence,” said Cathy Cleaver Ruse, senior fellow for legal studies at the Family Research Council in Washington, D.C. “The result will be that an abortion law that is passed will actually be allowed to be enforced.”

On the other hand, she said “a negative development out of this would be that the court could decide parental involvement laws have to have a broad health exception.”

Gandy said that was her hope, adding that a “bare majority” of judges seemed to favor the case made by Planned Parenthood, an impression shared by Smeal.

Campaign Against Abortion Clinics

The court also heard oral arguments in two other abortion-related cases, Scheidler v. National Organization for Women and Operation Rescue v. National Organization for Women.

In both cases, Joseph Scheidler, through the Pro-Life Action Network and Operation Rescue, an anti-abortion rights group, was accused of orchestrating a nationwide criminal campaign against abortion clinics in an effort to drive them out of business, thereby violating federal anti-racketeering laws.

Smeal was also concerned about “harsh questioning” of the women’s rights lawyers in the racketeering cases. A defeat would lift a federal injunction prohibiting demonstrators at abortion clinics from conducting blockades, trespassing, damaging property or committing acts of violence. The lack of an injunction, Smeal said, could lead to a resurgence in violence against abortion providers and their patients and ultimately the shuttering of more abortion clinics.

“If we lose this, it could be a signal to the extremists to do more,” Smeal said. “They’re still trying to drive out abortion clinics now. We need every law we can to protect them.”

Troy Newman, president of Operation Rescue West, an outgrowth of Operation Rescue, echoed that sentiment, saying a defeat for women’s rights groups would help anti-choice activists “make inroads” in their goal to shut down abortion clinics. “That would make it harder and harder and harder to obtain someone to kill your baby,” he said.

A victory for the anti-choice groups would give “a whole shot in the arm to the pro-life movement,” said Scheidler. “It would give a lot of people the assurance that they can go out to abortion clinics and counsel women in front of clinics and have prayer vigils without lingering fear that you might be breaking federal law or an injunction. It would give us more freedom.”

Allison Stevens is Washington bureau chief at Women’s eNews.

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For more information:

“Ayotte Case Could Dramatically Weaken Roe”:

“Alito Nomination Spurs Prayers, Protest Over Roe”: