Supreme Court Justices Reveal Clear Abortion Views in Notification Case

National   |   Steven Ertelt   |   Nov 30, 2005   |   9:00AM   |   WASHINGTON, DC

Supreme Court Justices Reveal Clear Abortion Views in Notification Case Email this article
Printer friendly page

by Steven Ertelt Editor
November 30, 2005

Washington, DC ( — Eight members of the Supreme Court have participated in decisions about abortion before and the audio tapes of today’s hearing on a New Hampshire parental notification law show they haven’t changed their views.

During questioning of both sides, both pro-abortion and pro-life Justices made it clear they still hold the same views they did when the high court overturned a Nebraska partial-birth abortion ban in 2000 because it didn’t have a health exception.

Justices David Souter, John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg, who make up the pro-abortion side of the court, were very deferential in their questioning of Planned Parenthood attorney Jennifer Dalven.

They often allowed her to repeat the same concerns and statements and, at times, threw her softball questions that played into her argument that the law is unconstitutional because it lacks a health exception.

Joined by retiring pro-abortion Justice Sandra Day O’Connor, abortion advocates on the high court appeared ready to strike the pro-life law as unconstitutional entirely or at least when abortion practitioners say a health emergency exists.

Pro-life members of the high court took a different approach.

After Dalven claimed a teenager may possibly need an abortion to protect her eyesight, Justice Antonin Scalia said there’s a significant concern about placing too much trust in abortion practitioners, who may be negligent or engage in malpractice.

Meanwhile, newly minted Chief Justice John Roberts seemed to follow the pro-life pattern of his predecessor, Chief Justice Rehnquist, and said he had a problem with Planned Parenthood’s desire to declare the law unconstitutional without presenting anyone who had been adversely affected by it.

At issue is how the high court handles abortion laws.

In a 1992 abortion decision, Justice O’Connor set forward a pattern of deciding abortion cases based on whether the law presents an "undue burden" for women. That allows the law to be struck before its enforced even though no one has been hurt by it.

Typically, the high court uses the "Salerno standard" to decide cases — meaning someone must have been negatively impacted by the law before they can bring a case saying it should be overturned.

Roberts said New Hampshire lawmakers probably thought the Salerno standard should be used, but Dalven said the 1992 undue burden precedent should be used instead.

The outcome of the case will likely depend on whether Justice Anthony Kennedy, who voted to uphold the partial-birth abortion ban in 2000, sticks with his position that a health exception is unnecessary.

It will also depend on whether the Senate votes to confirm Samuel Alito, who observers say would be likely to uphold the law, to replace Justice O’Connor, who will likely vote to overturn it.