Flashback: Here Comes John Roberts, There Goes Roe v. Wade

Ayotte v. Planned Parenthood is only the start

Editor's note:

The first major test of abortion rights for the Supreme Court and its new leader, Chief Justice John Roberts, appears to be turning into a congeniality contest.

During arguments yesterday in Ayotte v. Planned Parenthood of Northern New England, reports the San Francisco Chronicle, Roberts looked for a way to preserve New Hampshire's right to require the notifying of parents at least 48 hours in advance if their daughter seeks to end an unwanted pregnancy:

Roberts focused on the tiny number of cases that might arise where a teenage girl's health might be at risk without immediate access to an abortion.
"The problem arises only in an emergency situation," Roberts said. "The vast majority of cases don't involve an emergency situation." He asked the lawyer representing Planned Parenthood, "Why challenge the act as a whole when the objection is so narrow?"

Oh, why indeed? Because a female's basic right to choose what happens with her own body is at stake, maybe?

But as the Los Angeles Times reported, the opposing sides quickly found what Hillary Clinton might call “common ground.”

Lawyers on both sides agreed with the idea of carving out an exception for "medical emergencies." By the end of the hourlong argument, most of the justices sounded as though they agreed as well,” the paper wrote.
"Why wouldn't [that solution] be entirely adequate to protect what you're concerned about?" Justice Ruth Bader Ginsburg asked of ACLU lawyer Jennifer Dalven.
"That would solve the constitutional problem in this case," Dalven replied.

Would that Ayotte v. Planned Parenthood would be the end of the matter. As Sharon Lerner wrote on the eve of Roberts's confirmation, the assault on Roe v. Wade has only begun.

Here Comes John Roberts, There Goes Roe v. Wade
Supporters of abortion rights prepare for the worst as chief justice wins confirmation
by Sharon Lerner
September 29th, 2005 11:58 AM

If you believe in reproductive choice, you might be crying yourself to sleep these days, as you've watched the conservative Ken doll also known as John Roberts sail toward appointment as our country's most powerful judge. Or perhaps you've been pulling your hair out as you've heard pundit after pundit try to fill in the big blanks in what Roberts has said about how he'd rule as chief justice on the country's most pressing issues. But maybe, just maybe, you're doing what some of the most diligent women's groups in this country are now doing: dispensing with the tears and angst, rolling up your sleeves, and trying to figure out what to do after Roberts takes the helm of the Supreme Court-courtesy of a 78-22 vote on Thursday that included the support of 22 Democrats.

Practical types probably don't harbor many illusions about Roberts. This is a man, after all, who supported a memorial service for aborted fetuses as “an entirely appropriate means of calling attention to the abortion tragedy.” He's married to a woman who serves as the lawyer for and is a major donor to an anti-abortion activist group. And he's referred to Roe v. Wade, the ruling that established the right to abortion back in 1973, as “wrongly decided” and based on “the so-called right to privacy.” So even if they're hoping for the best, pro-choice court watchers are no doubt assuming the worst.

Which is not to say anyone has given up the fight. NARAL, Planned Parenthood, and the National Organization for Women are just some of the groups that vehemently opposed Roberts, trying to call attention to his evasiveness when it comes to his real feelings about several established laws of the land, including the right to abortion. Several activists have pointed out the eerie similarity between Roberts's evasive answers to questions about Roe at his Senate hearing and those of Clarence Thomas, who voted to overturn the decision a year after he joined the court.

The first tests of how unfriendly a new court might be to reproductive rights are just around the corner. On Monday, Bush administration lawyers asked the Supreme Court to reinstate a federal law banning some abortionseven though several courts have already ruled the bans unconstitutional. And on November 30, the Supreme Court is scheduled to hear arguments in a case called Ayotte v. Planned Parenthood of Northern New England, its first abortion-related case in five years.

Ayotte wouldn't overturn Roe, but it could gut it. One of the biggest issues at stake in the case is whether laws requiring minors to notify their parents before having abortions must contain exceptions for the health of the young woman. According to Nicole Berner, a staff attorney at the Planned Parenthood Federation of America, if the majority of justices side with Kelly Ayotte, the attorney general of New Hampshire, the health exception ruling could severely limit doctors and teens seeking abortions. “Even if she's bleeding profusely and she could lose her kidney or liver function or fertility, the physician cannot go forward” with an abortion, says Berner. If they do defy parental notification laws and perform an abortion for health reasons, she adds, “providers would be at risk of losing their medical license, and criminal prosecution.”

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