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Slate's Jurisprudence: High Court's Abortion Ruling


From the studies of NPR West, this is DAY TO DAY. I'm Madeleine Brand.


And I'm Alex Chadwick. Coming up, a conversation with Senator Joseph Lieberman about Democrats' proposals to end corruption on Capitol Hill.

BRAND: But first, the Supreme Court today issued a ruling on a closely watched abortion case. But the court sidestepped a direct decision on abortion, and instead sent the matter back to the lower court. The case involves a New Hampshire law that requires parental notification when a minor seeks an abortion.

Joining us to explain what's going on here is Dahlia Lithwick. She's a Legal Analyst for the online magazine Slate, and for us here at DAY TO DAY. And Dahlia, first of all, welcome back. It's been such a short time since we last heard from you. Remind us what the New Hampshire law requires and why the lower court struck it down.

Ms. DAHLIA LITHWICK (Legal Analyst): Sure, Madeleine. This is about a parental notification law, which the courts have said traditionally are OK. New Hampshire's law requires a doctor to notify a minor's parents in writing 48 hours before performing an abortion on her.

The law has a couple of exceptions. It says, one, she has an option for a judicial bypass. In other words, she can go to a court and get a judge to say no, her parents don't need to know. Or, if her life is in danger, the doctor can go ahead and perform the abortion immediately.

The thing that is tricky about the New Hampshire law, is there is no exception if only her health, not her life, are in danger. And previously, the Supreme Court has said no, that health exception is necessary. That's why the lower court, in this case, and then the 1st Circuit Court of Appeals said, hey, if the court says a health exception is necessary, the whole statute is unconstitutional, and they struck it down.

BRAND: And the Supreme Court disagreed in a unanimous decision written by Sandra Day O'Connor. What did she write?

Ms. LITHWICK: Well, she essentially said, you know, going around willy-nilly, striking down entire statutes, because it's got one teeny, tiny little flaw, is just not going to work anymore. And it's almost that simple. It was a very brief, 10-page opinion. And she had a lot of language that said things like, when confronting a constitutional flaw, we try to limit the solution to the problem, all of which makes really good sense, except, let's remember, it was the Supreme Court who historically has been striking down entire statutes because they don't contain a health exception.

So, essentially, they are saying, don't listen to what we told you to do. Go back and find some different way to narrowly address this problem, to find a remedy that doesn't, you know, essentially eviscerate an entire statute, because it has one teeny, tiny constitutional flaw.

BRAND: So, what does it mean that this decision was unanimous? Is that surprising?

Ms. LITHWICK: Well, it is in that it's an abortion case, but it's not if you look at what the court was really doing. O'Connor's opinion expressly says, her first sentence says, quote, "We do not revisit our abortion precedence today."

She's making it very clear, this is not a discussion about the merits or the, you know, tragedy that is abortion. This is about what the remedy is when there's a flaw in a statute. And so, in some sense, it's a very, very narrow question about, does the court agree that there should be a different standard when looking at abortion regulations, as opposed to other regulations.

When we look at other kinds of laws, the courts strike them down very narrowly. Essentially, they're trying to say, I think, we've got to bring the abortion cases in line with those other statutes, and strike them down, only the parts that are unconstitutional, craft narrow remedies. Now, obviously, this is a very, very big shift. And the court doesn't expressly say what the new standard will be.

But it is, I think, a real narrowing of what was once a very, very generous deference in abortion cases, to both doctors and courts, to say hey, whole thing's unconstitutional. That doesn't seem like it's going to be allowed to happen anymore.

BRAND: So, what does this mean for the subtext that everyone's concerned about, whether or not Roe v. Wade will stand?

Ms. LITHWICK: Well, again, I think it's not really about the merits of Roe v. Wade. Although, like I say, it does signal a sort of much more rigid, much narrower, much less deferential view of abortion regulations. It says, it's no longer good enough to say, oh, there's no health exception, the whole thing comes down.

She expressly sends it back to the lower courts and says, figure out some way to salvage the intent of the legislature here. Figure out some way to save this statute. And I think that the big picture is going to be that, for all the states that are thinking about parental notification laws, and more pointedly, for states that are looking at the question of the partial birth/abortion statutes, where previously, they had been entirely struck down because of a lack of health exception, it looks like now there's an awful lot of wiggle room for legislatures to maneuver where there wasn't that kind of wiggle room before.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the Supreme Court for the online magazine Slate, and for us here at DAY TO DAY. Thanks, Dahlia.

Ms. LITHWICK: Always a pleasure, Madeleine. Transcript provided by NPR, Copyright NPR.