Justices Hear Oral Arguments in Ayotte v. Planned Parenthood
By Dave Andrusko

WASHINGTON (November 30)--Minutes after the Supreme Court finished hearing oral arguments in Ayotte v. Planned Parenthood of Northern New England, advocates for both sides were outside giving their take on what the Justices heard in an hour of back and forth and speculating about how the Court might rule on a facial challenge to the state's 2003 parental notice law.

"You never put too much stock into the justices' questions, or get hung up on what you think their 'body language' is revealing," said NRLC State Legislation Director Mary Balch. "These are very intelligent people who are probing your argument, sometimes to solidify a position they have already tentatively reached, sometimes to lobby their fellow justices, and sometimes because they genuinely don't know how this case will come out."

The Court, as it has more of late, allowed the public to hear the entire exchange just a little over an hour after the hearings concluded. C-SPAN television and radio carried the 60-minute-long discussion in its entirety. Several considerations stand out.

First, there was the presence of the new Chief Justice, John Roberts. He asked particularly probing questions, on occasion formulating the arguments more clearly than the attorneys arguing for and against the law, who are under enormous pressure. Roberts is clearly every bit as bright as he appeared to be in his confirmation hearings.

Second, there was Justice Sandra Day O'Connor, still on the bench months after announcing her retirement. Should her successor be confirmed before a decision on Ayotte is announced--and her absence means there is a 4–4 tie--the Court has the option of re-hearing the case.

Many observers predicted the justices would spend considerable time on question of "standard of review." By this they mean just how high--or low--the bar is set to determine whether a law can be stopped even before it goes into effect.

Such "facial" challenges have been a principal weapon in the pro-abortion community's legal arsenal. If all they have to do is trot out a speculative "parade of horribles" should the law go into effect--and the Court says "okay"--they can keep protective abortion statutes bottled up almost indefinitely.

In fact, the justices did not talk a lot about the standard of review. Most of the queries were addressed to the pro-abortion assertion that the law did not provide for "medical emergencies."

As Balch pointed out in an interview with NRL News, the attorney representing Planned Parenthood, Jennifer Dalven of the American Civil Liberties Union, was very clever. "Pro-abortionists know they are in a predicament on parental notice laws," she said. "There is overwhelming support for them, which means Dalven has to appeal to parents' worst fears."

Dalven and like-minded advocates who congregated on the steps of the Court afterwards painted a picture of a young pregnant woman in a dire condition, who, while she won't die, might lose function in a major bodily organ if physicians do not immediately abort.

"But surely the justices have read all the briefs," she said. "Based on what Dalven said, I would guess she had."

Balch was alluding to a medical brief that debunked the heart of the pro-abortion "medical emergency" argument. Filed by a number of Christian medical and legal groups, and conservative women's organizations, the brief demolished the specific examples pro-abortionists cited in their pleadings in lower courts as medical conditions that would warrant an immediate abortion.

"The truth is, that in those rare, rare cases approaching a medical emergency, the first thing sound medical practice demands is that you stabilize the girl's condition," Balch said. "The lethal irony is, were a physician to immediate abort a young girl before addressing, say, her high blood pressure, he could well put her life very much at risk."

As NRLC General Counsel James Bopp, Jr., explained, the pro-abortion side was unable to cite a single specific example of where the "solution" to a medical emergency had demanded an immediate abortion on a minor girl. "That's why they dealt almost entirely with hypotheticals," he said.

Dalven wants the entire law stricken. What the Court will do is, of course, uncertain.

"The Court knows that this law is virtually identical to a Minnesota parental notice law which the justices upheld in 1990," Balch explained. "As it subsequently said in Casey, the justices have upheld parental involvements statutes because they are 'based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart.'"