From the New York Times:
Well before the argument in a New Hampshire abortion case was over, the question that had drawn the crowds to the Supreme Court on a crisp Wednesday morning had an answer. No, abortion law was not about to undergo a major change in the hands of the new Roberts court, at least not yet.
The justices appeared to be in broad agreement on two propositions: that laws regulating teenagers' access to abortion must make allowances for medical emergencies; and that the New Hampshire law, requiring notice to one parent and a 48-hour waiting period, failed to do so.
The only dispute was over how to fix the problem, and even as to that question, there was some evidence of a consensus in the making.
Justices across the ideological spectrum appeared inclined to send the case back to the federal appeals court that had declared the law unenforceable in all respects, and to instruct that court to render a narrower ruling. Such a ruling would permit the law to take effect except when a doctor had certified that an immediate abortion - without either notifying a parent or seeking approval from a judge, an option known as a judicial bypass - was necessary to preserve a girl's health.
I see no problem with this, but the ideologically driven lawyer for the American Criminal Liars Union, Ms. Dalven, didn't like the idea:
Ms. Dalven replied, "That would solve the constitutional problem here," but she also contended that the United States Court of Appeals for the First Circuit had taken the preferable course in blocking enforcement of the law in all possible applications.
Preferable to whom? Those who make money off of abortions? Certainly not to parents of children.
In a shocking display of common sense, Justice Ginsburg chimed in:
Why wouldn't it be entirely adequate to protect what you're concerned about to say this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there's imminent danger to health? And then all those imminent danger to health situations would be left unregulated, the statute doesn't reach them, but nonemergency cases would continue to be governed by the statute. In other words, why wasn't that the appropriate judgment for the First Circuit to have entered in this case, to say the statute's fine for nonemergency cases, but for emergency cases there is effectively no law?"
Scalia and Thomas must have poisoned her Kool-Aid. Maybe her lifetime membership to the ACLU will be revoked...
Chief Justice Roberts asked why this litigation was so broadly focused when the reason why the lawsuit was brought was so narrow. Good question:
What is wrong with a pre-enforcement challenge by physicians?" the chief justice asked Ms. Dalven. "Why should you be able to challenge the act as a whole if your objection is so narrowly focused?"
Later, he elaborated: "Presumably the litigation would be very similar to what we've seen in this case, in which a doctor is saying well, you do need an immediate medical exception; others saying that the judicial bypass adequately addresses the concerns. But it would be focused on the provision that is causing you concern, rather than the statute as a whole."
Sounds reasonable, but look for the Anti-Child Life Union to continue to wail about Right Wing judges.
