Why the Big Deal about Supreme Court Nominations?

Welcome to the wacky world of abortion law: A young man (we'll call him Jack) allegedly commits statutory "criminal sexual abuse," impregnating a 14-year-old girl whom we'll call Ann. Jack has college plans and a baby would upset those plans. So Jack's mother poses as Ann's grandmother to get Ann out of school and into an abortion clinic in Illinois, without Ann's parents' knowledge.

Having been notified by the school that Ann is absent, Ann's mother goes to the clinic. Staffers tell her she can't prove her daughter is there, although she's already seen Ann's name and check-in time on the clinic's roster. The staff reportedly refuse to let her see her daughter; they remove Ann from the general pre-op waiting room and conceal her in a private area of the clinic. Mom refuses to budge until she's talked to her daughter. She begins calling Ann's name and begging "Don't do it!" Staff tell her, "It's your daughter's rights, it's her body" and "You have no rights" (quoted by Joyce Morrison, The Illinois Leader, March 22, 2005, available at http://www.illinoisleader.com/news/newsview.asp?c=23788, last viewed 7/18/05).

Ann tries to get a message to her mother, but is told she has left. The grandmother-impersonator is allowed to slip out the clinic's back door. Ann's child is aborted, and she is told, "No one will ever know you were here. We'll bury your records."

Guess who, in this whole tragic and sordid scenario, gets arrested? (a) Jack (b) Jack's mother (c) clinic staff (d) none of the above.

And the correct answer is (d) none of the above, because clinics are "sacred ground" in the bizarro world of abortion law. Abusers of under-age girls are welcome. Family-impersonators are welcome and aided by clinic personnel. Staff have one solemn duty: to let nothing and no one stand in the way of the abortion. So, of course, Ann's mom was arrested for trespass, handcuffed, and forcibly removed.

Not the college-bound boy who at a minimum may have violated Sec. 12-15 of the Illinois Criminal Code of 1961(720 ILCS 5/) punishing "criminal sexual abuse" (defined as "sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was less than 5 years older than the victim").

Not the "grandmother" who – to cover up her son's alleged crime and free him of responsibility for his child so he could go to college unencumbered by support obligations – reportedly helped to deprive her own grandchild of his or her life, expose her son's 14-year-old victim to the physical, psychological and spiritual consequences of abortion, deprive Ann's parents of their right and duty to be involved in such a significant decision affecting their daughter, and deceive the school into neglecting its custodial duty to Ann's parents.

Not the clinic personnel who reportedly did everything in their power to keep Ann's mother from seeing her – using lies, concealment and, finally, the police to prevent any interference with the scheduled abortion. Try to imagine a custodial parent being dragged away in handcuffs from a dentist's or family doctor's office because he or she has "no right" to be involved with a 14-year-old daughter's treatment. It's unthinkable.

But in the wacky world of abortion law and practice, this sort of travesty happens. At the Illinois clinic where Ann had the abortion. an estimated 45% of the clientele comes from Missouri, a state with a parental notice law. And the clinic's ads in Missouri phonebooks pointedly mention the lack of a parental notice law in Illinois. (The Illinois statute is currently unenforceable.)

Even living in a state with a strong parental consent law is no guarantee of respect for parents' rights. Marcia Carroll and Joyce Farley, for example, have described to Congress the ordeal they and their minor daughters experienced after the girls were taken to other states by members of their boyfriends' families for abortions, to circumvent Pennsylvania's parental notice law. (See http://commdocs.house.gov/ committees/judiciary/hju94919.000/hju94919_0.HTM and http://judiciary.house.gov/HearingTestimony.aspx ? ID=254.)

Some members of Congress have tried repeatedly to enact legislation that would prohibit third parties from deliberately taking minors across state lines for abortions in order to circumvent the home state's parental involvement law. The Child Custody Protection Act passed the House in 1998, 1999, and 2002, but stalled in the Senate. The 2003 bill never came to a vote. A revised bill (H.R. 748) called the Child Interstate Abortion Notification Act (CIANA) passed the House on April 27, 2005 on a vote of 270-157 (8 not voting). Sen. John Ensign (R-NV) has introduced a companion bill in the Senate, but no action has been taken on it.

Among those who believe parents should be involved in pregnancy-related medical care decisions of a minor daughter (including decisions to take a baby's life) is Dr. Bruce A. Lucero. In an op-ed in The New York Times, Dr. Lucero expressed support for the 1998 Child Custody Protection Act. He stated that he has performed about 45,000 abortions in his 15 years of practice. Describing his personal experience with young girls seeking abortions, he wrote: "In almost all cases, the only reason that a teen-age girl doesn't want to tell her parents about her pregnancy is that she feels ashamed and doesn't want to let her parents down." He points out nevertheless that "parents are usually the ones who can best help their teen-ager consider her options. And whatever the girl's decision, parents can provide the necessary emotional support and financial assistance." There are also sound medical reasons for supporting the Child Custody Protection Act: "[P]atients who receive abortions at out-of-state clinics frequently do not return for follow-up care, which can lead to dangerous complications. And a teen-ager who has an abortion across state lines without her parents' knowledge is even more unlikely to tell them that she is having complications" (Bruce A. Lucero, M.D., "Parental Guidance Needed," The New York Times, July 12, 1998).

Have you ever wondered why it is so difficult for parents to protect their minor daughter from exploitation at the hands of a boyfriend's family? One reason, of course, is that the well-funded abortion industry and groups like the American Civil Liberties Union fight lawmakers' efforts to protect parents' rights. When states succeed in enacting parental involvement laws, they are challenged in court, even before the laws take effect. Some laws have been tied up in the judicial system a decade or longer.

Compounding the difficulty is the U.S. Supreme Court's habit of continually changing the rules of the game in cases involving abortion. Doctrines and principles of interpretation that the Supreme Court applies in every other context are cast aside to achieve abortion-favorable results.

Retiring Justice Sandra Day O'Connor criticized the Court's tendency to move the goalposts:

"The Court's abortion decisions have already worked a major distortion in the Court's constitutional jurisprudence. ... Today's decision ... makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion" (dissent in Thornburgh v. American Coll. of Obst. & Gyn., 1986).

Another obvious example is the 2000 decision Hill v. Colorado. Normally, the Court reads the First Amendment very broadly to protect free speech, no matter how offensive (protecting KKK marches, flag burning, pornography). But when it involves free speech to educate or counsel someone on public property within a 100-foot perimeter of an abortion clinic, look out! You may get jailed if you walk within eight feet of such a person.

Dissenting in Roper v. Simmons (where the Court invalidated state statutes permitting the execution of anyone who committed a capital offense before age18), Justice Antonin Scalia noted the differing standards used to assess maturity/ responsibility in different contexts. States are allowed to prohibit those under 18 from drinking, voting, serving on juries, and marrying without parental consent, he said. Yet girls as young as thirteen have been found sufficiently mature to reach a decision to have an abortion without any parental involvement.

The majority in Roper concluded that minors are generally less mature than adults and, for that and other reasons, categorically exempt from being sentenced to death for taking a human life.

Justice Kennedy, author of the majority opinion, cited three reasons why minors should never be subjected to the death penalty:

"First, as any parent knows and as the scientific and sociological studies ... tend to confirm, '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.' ...

"The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. ...

"The third broad difference is that the character of a juvenile is not as well formed as that of an adult" (Roper v. Simmons).

Precisely! And that's why it is imperative that parents be allowed to discuss a minor daughter's unexpected pregnancy with her and together examine the available options.

This fall the Supreme Court will hear a challenge to New Hampshire's parental notice law in Ayotte v. Planned Parenthood of Northern New England. The case presents another serious deviation from standard jurisprudence – ironically, one introduced by Justice O'Connor. For years, courts have been striking down abortion regulations even before they go into effect on the basis of preemptive "facial challenges." Such laws are found invalid if they "impose an undue burden" on the right to abortion of a significant number of women, applying the malleable standard devised by Justices O'Connor, Souter and Kennedy in Planned Parenthood v. Casey (1992).

But in every other area of law, determining constitutionality in a facial challenge is "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid" (United States v. Salerno, 1987). Using the "undue burden" standard to measure constitutionality, judges can prevent abortion regulations from taking effect for years. Justice Scalia has explained:

"[W]hat I consider to be an 'undue burden' is different from what the majority considers to be an 'undue burden' – a conclusion that cannot be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it" (dissent, Stenberg v. Carhart).

Ayotte may also resolve confusion over the "health" exception. In the past, the Supreme Court has required a "health" exception to any law banning abortion. The abortion industry in Ayotte claims that such an exception is necessary in a parental notice statute. In Ayotte, federal judges claimed that a pregnant minor's "health" can be threatened by a delay of 48 hours to notify a parent, and by a delay of 7 days for a judicial bypass proceeding in lieu of parental notice (or 14 days should an appeal be necessary).

Today any law regulating abortion can be effectively gutted by adding a "health" exception to it. In Doe v. Bolton, the Supreme Court broadly defined the Roe-mandated health exception to include "all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient." A ban on abortion is unconstitutional unless it permits abortion "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" ... (Planned Parenthood v. Casey).

In Stenberg v. Carhart, the Court extended this holding to strike down Nebraska's partial-birth abortion ban: "where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is ' "necessary in appropriate medical judgment, for the preservation of the life or health of the mother."' ... Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding."

Unfortunately, many federal courts (including the First Circuit Court of Appeals in Ayotte) have read Carhart as meaning that every regulation of abortion, including parental involvement laws, must contain a health exception. Thus an abortion provider can avoid prosecution under a parental involvement law merely by stating that, in his judgment, the minor's mental health would be adversely affected by the brief delay to notify her parents or conduct the judicial bypass proceeding. The health exception is, in essence, a leviathan-sized loophole that swallows up the law.

The sheer looniness of this assertion is evident when we look at the purpose of parental consent laws. They are designed not to give parents veto power, but to further their daughter's health by ensuring that – whether the ultimate decision is abortion or continuing the pregnancy to term – the best medical care is available, the girl's medical history is accurate, follow-up appointments are kept, and an adult familiar with the girl's health is present to spot symptoms of complications and provide her with emotional support, etc.

Requiring a health exception to a statute whose purpose is furthering health makes no sense this side of Wonderland. And if a pregnant minor were really faced with a health crisis, wouldn't that be all the more reason to notify her parents at once rather than performing a significant surgical procedure behind their backs?

One can only hope that the Supreme Court will correct the misreading of law that 1) has allowed abortion regulations to be enjoined for years by facial challenges that should never have succeeded, and 2) has extended the application of the health exception beyond anything envisioned in Roe, Doe and Casey.

The health exception is also involved in three pending challenges to the federal Partial-Birth Abortion Ban Act. Three federal district courts already have found the Act unconstitutional for lack of a health exception, and the three federal appellate courts are expected to agree (the 8th Circuit has already so ruled). The Supreme Court is by no means required to review the Circuit Court judgments. Supreme Court review would occur, however, if at least four justices voted in favor of it.

The likelihood of the Supreme Court reviewing the federal partial-birth abortion ban may depend in part on who replaces Justice Sandra Day O'Connor. If a jurist who interprets the Constitution moderately (defined by Justice Scalia as "[h]alfway between what it really means and what you'd like it to mean"), the Court will probably be no more or less likely to hear the appeal than it would now. If she is replaced by a jurist in the mold of Justices Scalia and Thomas, the likelihood of review can be expected to increase.

With stakes as high as these, with an opportunity to correct the course of abortion jurisprudence and, eventually, to see Roe v. Wade overturned, Senate confirmation proceedings are sure to be heated. All eyes are on the Court.