Posted on 11/30/2005 2:45:28 AM PST by Libloather
News Tip: Upcoming Supreme Court Case 'Huge' for Abortion Rights, Law Professor Says
“The question in this case isn’t whether Roe v. Wade is going to be overturned, but whether it is going to be severely undermined,’’ says Neil Siegel
Monday, November 28, 2005
Durham, N.C. -- On Nov. 30, the U.S. Supreme Court will consider a challenge to a New Hampshire law that could significantly affect abortion rights, a Duke University law professor says.
In Ayotte v. Planned Parenthood of Northern New England, the Court will consider, among other things, how courts should analyze abortion restrictions and whether a restriction that has no exception for risks to the life or health of the mother can ever be constitutional.
In its 1987 decision in United States v. Salerno, the Supreme Court said that, in general, a law should be completely invalidated only if there is no set of circumstances in which it can be constitutionally applied. This makes it very difficult to strike down statutes.
But in abortion cases, the Court in recent years has taken a different approach. It has said that a law regulating abortion should be declared unconstitutional if it creates an "undue burden" on a woman’s access to abortion. "The difference is enormous in terms of whether laws regulating abortion will be upheld or struck down," Siegel said.
The "undue burden" standard was adopted by the Court in the 1992 case of Planned Parenthood v. Casey, in a plurality opinion co-authored by retiring Justice Sandra Day O’Connor, Justice Anthony Kennedy and Justice David Souter. The "Casey" standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which the Casey plurality defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," Siegel explained.
In the Ayotte case, the Court is being asked to adopt the more stringent "Salerno" standard, which has never before been applied to abortion.
"Adoption of the ‘Salerno’ standard would have hugely important implications for the right to abortion," Siegel said. "You could not feasibly challenge an abortion restriction that lacked an exception for the life and health of the mother ahead of time, as you can now. Instead, you would have to wait until an individual woman wanted to challenge the law as it applied to her -- which could involve an actual emergency, when her life or health was in danger. By then, it would already be too late. So this is one way in which the Court could start restricting abortion rights through doctrinal maneuvers that would undermine, though not overrule, Roe and Casey."
A new justice could make a decisive difference, Siegel noted.
"I doubt that Chief Justice Roberts will be different from the late Chief Justice Rehnquist on this issue, and I think Justice Kennedy will be inclined to approve many restrictions on abortion. So the question may end up being what Justice O’Connor’s replacement will do. If Judge Alito is confirmed, there will be no mystery here waiting to be revealed."
I've always wondered - is the female healthier giving birth - or going through an abortion?
Good point.
Sending an extra prayer for our AG would be a good idea today.
Just as an aside: our Kelly has got to be the best looking state AG in the country.
I can't help but notice the word "woman" over and over again. Isn't this whole thing about parental notification for abortions performed on CHILDREN?!!!
Ayotte v. Planned ParenthoodBTW, the above is from DUKE LAW. You'd think these mopes would at least TALK to their Law School before writing such tripe.
"The Act provides exceptions for abortions necessary to prevent death and for minors who have received a judicial declaration that they are mature enough to make such a decision."
But it's not really about the LIFE or DEATH of the mother....it's about her HEALTH, including mental. Which is how they get around any abortion restrictions. If a woman decides the week before the baby's due date that, because of her mental or emotional health, she just cannot become a mother, she can legally allow her baby to be killed by the abortionist, and no one can stop her. So basically we have abortion for all 9 months of the pregnancy, which is what the left wants to continue.
As of last count, Ginsberg, Breyer, Souter, Kennedy, and Stevens still support Roe and at the very least the "undue burden" standard. Hopefully Stevens will retire soon, although my guess is he'll try to wait until after the next presidental election, in hopes a Democrat will take over.
No, it's not. Read the article. This is one of the few I've read that actually explains what the case is about, i.e., the *standard of review* that the Court will use in analyzing abortion restrictions from now on. The parental notification law is pretty much a side issue.
thanks
So does this mean that judges can now arbitrarily lower the Age of Consent in your state?
After all, if they are mature enough to have an abortion, then surely they must have been mature enough to have sex in the first place.
If we are going to address it in terms of "maturity" I guess that judges will have to rule FOR abortion more than AGAINST. How many children are mature enough to become mothers???
Don't let the left dictate the language and frame the arguments.
Child molesters are getting away with their crimes and Planned Parenthood is a partner in the abuse because they hide the evidence.
I say put it to a vote. Constitutional amendment to protect life since activist judges don't believe such protections are already present.
Such as it was in the 2004 elections.
While I am unaware of any major assassination attempts (I think there were some kooks arrested), there was wide scale election violence including assaults on Bush voters, assaults on Bush voters' kids, bricks thrown through the windows of Bush supporters' homes and GOP offices, sidewalks,signs, and cars of Bush supporters painted with swatikas and other evidences of what would normally fall under "hate speech", the election day slashing of tires of cars for a GOP get out the vote effort, and the election day pulling of power to GOP offices (isolated power outage).
Not to mention the media lies (National Guard Memos, "Bush's Draft" legislation, fake Abu Ghraib photos culled from porn sites and posed by agitators) and distortions (business as usual).
The despots are fearful their power structure is crumbling.
To get back to assassination attempts... John Kerry's Vietnam protest group plotted the assassination of congressmen who supported the war. Don't expect the same media that gave him a pass as he ran for President Of The United States to expose any such plans this time around.
Giving birth.
It depends on how far along she is. If she is only 10 weeks along, giving birth = abortion. As for partial-birth abortion, it doesn't make sense that having an abortion would be safer than giving birth. But this is too factual and makes too much sense for the murderers to acknowledge it.
Giving birth is healthier for both mother and child.
+
This is the straw man agruement for the pro-death crowd. I know of no statute which does not contain an exception when the life of the mother is at risk. What the death crowd wants to do is have "health" of the mother include mental health. Anyone can find a mental heath professional to testify that without an abortion the mental health of the mother is at risk. It's impossible to quantify though. Thus, the "health" exception would end up swallowing the entire rule.
later pingout.
PING...
LIVE Audio on C-span right now...
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