Supreme Court rules in Ayotte.

January 18, 2006 10:06 AM

The Supreme Court decided Ayotte v. Planned Parenthood today, vacating the lower court's ruling that the parental notification statute was unconstitional. Instead, the Court instructed the lower court to consider narrower relief. The Court, in an opinion [pdf] written by Justice O'Connor, held that if enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. [more inside]
posted by monju_bosatsu (33 comments total)

While the NYTimes characterizes this opinion as the Supreme Court steering clear of the controversy, the opinion may still have an affect on abortion rights. Lyle Denniston at SCOTUSblog writes:

In some ways, the opinion seemed to reveal a collective decision by Justices with far different views on abortion to suspend their disagreement until some future occasion, in order to deal with a case that had come increasingly to look as if it were confined to the law for clearcut medical emergencies, instead of being a major test case on the underlying constitutional controversy. By no means, however, did it bridge the existing fundamental disagreements among the Court's members in this field of law.

Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges' authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.

If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor's professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.

Lyle also speculates on what this might mean for the abortion cases remaining on the Court's docket.
posted by monju_bosatsu at 10:06 AM on January 18, 2006

Okay, in English.
posted by basilwhite at 10:24 AM on January 18, 2006

Jack Balkin discusses the opinion, and in the end seems more optimistic about abortion rights than Denniston. He writes:

And this brings me to my final point about winners and losers. Under the guise of respecting legislatures, O'Connor has given the federal courts new powers to rewrite abortion statutes based on existing doctrinal categories. This is consistent with O'Connor's general tendency throughout her career to use seemingly narrow holdings to maximize future judicial discretion.

So if you want to know who really was the big winner in Ayotte, the answer is simple: It was the federal courts. They are now freed up to selectively rewrite new abortion statutes in the asserted name of respecting legislative intention and democracy.

posted by monju_bosatsu at 10:25 AM on January 18, 2006

Whoops. Link to Balkin's post.
posted by monju_bosatsu at 10:28 AM on January 18, 2006

And again, the oral argument (PDF) is worth a read.
posted by Gator at 10:34 AM on January 18, 2006

Wait...this is the United States Supreme Court, right? I mean, you can understand where I might be confused.
posted by thanotopsis at 10:36 AM on January 18, 2006

So, the question is, could O'Connor's opinion be cited as precedent by future federal courts seeking to narrow (or even broaden) other abortion laws? If so, it's actually a pretty important decision, is it not?
posted by JeffK at 10:42 AM on January 18, 2006

The decisions this year are really nuanced, minor sorts of things. Like counting-the-number-of-angels-on-the-head-of-a-pin nuance. I understand all the obvious laws have been defended and lower courts are doing a pretty good job, but it still feels like nothing major has come down since Roberts joined. I wonder if the whole attack on the judical branch of the last year ("activist judges" crap) has influenced their choices of what to rule on.

Where are the big, fat, obvious gay marriage decisions?
posted by mathowie at 10:45 AM on January 18, 2006

I think that's right, JeffK. Even though Ayotte doesn't announce any new substantive principles governing abortion rights, it does appear to change the way lower courts should review challenges to these laws. Again, from Jack Balkin:

On the other hand, New Hampshire and abortion opponents lose to the extent that the new rule the Court adopts is not exactly identical to an as-applied challenge. First, it does not necessarily require the development of a record after a full trial, although the court may of course demand one. Second, courts are allowed to hold unconstitutional applications invalid immediately as to everyone, and not just as applied to the parties before the court. Third, the courts can hold multiple features of the statute unconstitutional immediately. This last point becomes clear in the instructions on remand: O'Connor says that the lower court should consider the other constitutional objections that the plaintiffs raise. Thus, legislatures and abortion opponents lose to the extent that courts are given greater leeway to cut up their abortion statutes.

posted by monju_bosatsu at 10:46 AM on January 18, 2006

i think all they're saying is that courts shouldn't enjoin an entire law because parts of it are constitutionally questionable ... that the parts that are questionable can be halted and the other parts can go on until a decision is made

i think it's more about process than it is anything else
posted by pyramid termite at 10:49 AM on January 18, 2006

thanotopsis: "Wait...this is the United States Supreme Court, right? I mean, you can understand where I might be confused."

I think it's pretty clear. MeFi has always been US-centric, since the userbase is vastly US-majority.
posted by Plutor at 10:51 AM on January 18, 2006

The decisions this year are really nuanced, minor sorts of things[...]

Where are the big, fat, obvious gay marriage decisions?

They generally wait until all the seats are filled to make landmark rulings. Handing down a huge decision on gay marriage, abortion, etc. while there were empty seats would only invite the issue to be readdressed.

Also, bear in mind that such big decisions don't just happen. They generally rest upon decisions in dozens of other cases, and the court generally likes to address as many of the individual issues involved in a particular matter of law in seperate cases as it can before it hands down an all-encompassing "scripture" ruling like Roe or Brown. Roe itself only happened after many other smaller decisions were handed down over the course of a number of years.
posted by ChasFile at 10:57 AM on January 18, 2006

This was a unanimous decision, which suggests that no member of the Court thinks it will have a significant impact on the abortion issue one way or the other.
posted by brain_drain at 10:59 AM on January 18, 2006

They generally wait until all the seats are filled to make landmark rulings.

All the seats are filled. O'Connor doesn't retire until her successor is confirmed by the Senate. I'm convinced this was to make sure that Bush couldn't recess appoint someone to the court.

As to O'Connor being a dead duck, there is no such thing on the US Supreme court. She could, if she chose, revoke her resignation -- indeed, she wrote the opinion in this case, speaking for the entire court.
posted by eriko at 11:04 AM on January 18, 2006

what does the bob loblaw law blog have to say about this?
posted by wakko at 11:10 AM on January 18, 2006

Loblaw writes primarily about intermediate appellate decisions, so he probably won't comment on this one. ;)
posted by monju_bosatsu at 11:12 AM on January 18, 2006

I think it's pretty clear. MeFi has always been US-centric, since the userbase is vastly US-majority.

i think it's pretty clear thantopsis was questioning whether it was one of the state supreme courts hearing the case.
posted by quonsar at 11:18 AM on January 18, 2006

Technically, Alito could be confirmed while O'Connor is still on the court, even if she revoked her resignation, because there is no set limit on the number of justices.

FDR tried to simply add more judges to the court when he couldn't get rulings his way, and people flipped. So it's very unlikely that O'Connor and Alito would serve at the same time, but I guess in some theoretical sense there would be a little overlap.
posted by delmoi at 11:19 AM on January 18, 2006

Technically, Alito could be confirmed while O'Connor is still on the court, even if she revoked her resignation, because there is no set limit on the number of justices.

There's no set constitutional limit on the number of Justices, but it is governed by statute. The Circuit Judges Act of 1869 sets the number of Justices at nine.
posted by monju_bosatsu at 11:26 AM on January 18, 2006

Where are the big, fat, obvious gay marriage decisions?
posted by mathowie

I don't know how many times I need to tell you, we don't need a piece of paper for our love to be real!

And I hate when you call me fat and obvious.
posted by phearlez at 11:55 AM on January 18, 2006

big, fat, obvious gay marriage?

Shh, don't give hollywood any ideas.
posted by allen.spaulding at 12:03 PM on January 18, 2006

Heh. The joke writes itself: "My Big Fat Gay Wedding."

And after some checking, I can't believe that isn't the title for a porn flick. Somebody's slacking.
posted by Ryvar at 12:09 PM on January 18, 2006

Is anybody buying the theory that Roberts will be an ideological replacment for O'Connor and Alito will be an ideological replacment from Renquist, so the actual makeup of the Supreme Court won't change that much? Isn't it pretty to think so?
posted by kirkaracha at 1:09 PM on January 18, 2006

The decisions this year are really nuanced, minor sorts of things. Like counting-the-number-of-angels-on-the-head-of-a-pin nuance.

The law is made of a million little nuances. They're much more important (and make up a much bigger chunk of the Supreme Court docket) than you would gather by just reading the New York Times.

For example, recent decisions include: a holding that an appeals court impermissibly stepped into the trial court's shoes when evaluating the the facts (Rice v. Collins); a unanimous reversal of a case because the lower court's decision wasn't actually appeallable (Will v. Hallock); and a decision that the Fair Labor Standards Act covers time spent walking to the factory floor after donning and before doffing protective gear – but not before donning protective gear at the beginning of the work day (IBP v. Alvarez).

Those are all cases with really compelling facts and stories and interests at stake in the background, but when it comes down to it, the law deciding them is just...really, really nuanced.
posted by footnote at 1:17 PM on January 18, 2006

Is anybody buying the theory that Roberts will be an ideological replacment for O'Connor

If so, Roberts would have ruled like O'Connor instead of along the ideological lines of his boss in the White House.
posted by Rothko at 1:26 PM on January 18, 2006

I wonder if the whole attack on the judical branch of the last year ("activist judges" crap) has influenced their choices of what to rule on.

Well, they've decided not to decide whether free speech actually exists in the U.S..
posted by If I Had An Anus at 1:29 PM on January 18, 2006

Well, they've decided not to decide whether free speech actually exists in the U.S..

And by doing so, letting the existing ruling against free speech hold...
posted by Rothko at 1:33 PM on January 18, 2006

monju_bosatsu, I can't say I really agree with Denniston's assessment there. I have a few issues with his reasoning, but two in the portion that you quoted.

Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges' authority to issue sweeping decisions that nullify new abortion laws, end to end.

While I agree with the sentiment, I disagree with the scope. I think it would be more reasonable to think of this as an interpretive limit on lower court judges' authority to broadly nullify any new laws based on an issue with a specific (and statistically narrow) example of enforcement. I don't read it as specific to abortion laws in any way. This may lend support to the idea that this is good-to-the-last-drop (Burke-style) judicial conservatism, as well as the idea that people who write law blogs like to make everything into a tempest. Isn't it good for the Supreme Court to check the excesses of lower courts?

If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights.

I don't think this is exactly fair, either. Again, perhaps Denniston is reading a bit too deeply into this one, in search of something salacious. If the court is recommending narrower relief when addressing the constitutionality of laws, they are simply recommending that lower courts try to avoid using a sledgehammer to fine tune the law, when a Ball Pein is available, and does the job so much more neatly. To state that this amounts to a narrowing of abortion rights is to presuppose that those rights are solely granted and protected by declaring abortion legislation unconstitutional. If Denniston believes this, his bias is showing. I'm glad it's not so easily identified in the opinion of the Court.

Also, btw, I'm back. It's nice to bathe in the blue again.
posted by rush at 2:04 PM on January 18, 2006

I read this earlier today, but go too busy to say what I wanted to:

monju, thinks for pointing this out and providing a link to the actual opinion. I always appreciate it when that is done instead of linking to some skewed misrepresentation of the case. I also appreciate the other links you provided.

It seems to me that there is an obvious reason that it was a unanimous opinion: because it is the correct one. All the Supremes seem to be doing is extending to the area of abortion the principle that partial invalidation is preferred; invalidating entire statutes is disfavored. Courts should hesitate to rule entire statutes unconstitutional if the statute can be cured by invalidating part. This is hardly a controversial position, and it only becomes questionable here because of all the un-necessary baggage that the topic of abortion entails.

This statute is very similar to informed consent statutes, and had it just been one of those, this case would pass without notice. I hope it doesn't get overly politicized, though I am sure it will be. I'm sure some people will argue that this is a sign the sky is falling.

But thanks monju for making it easy to get info about this case.
posted by dios at 3:33 PM on January 18, 2006

Dios - Do you think the previous approach to facial invalidation of abortion statutes was something akin to the "strong medicine" of the First Amendment overbreadth doctrine? If so, then this decision is something more than the mere application of the doctrine of severability, no?
posted by footnote at 3:47 PM on January 18, 2006

No, I think the facial invalidation approach is wrong. The First Amendment overbreadth doctrine at least has a constitutional basis; speech is explicitly and powerfully protected in the Constitution. Abortion is not. The laws in that area try to navigate a confusing stream of every changing Supreme Court precedents regarding a judicially created right. But states have to pass some laws, and, in fact, have the right to do so. As the background rules aren't clear, the Legislature has to be given some deference in trying to work through them, and that informs more a reason that the Court ought not frustrate the attempts of the Legislature.

Partial invalidation is the appropriate remedy here. To render the entire statute unconstitutional is unnecessary and fraught with peril. Here, the Court remanded this case; it was not decided in toto. The Court merely was saying the absolute remedy of complete invalidation is not necessary. A more limited remedy can be constructed that is constitutional. When that is the case, Courts ought to do so.

Again, this is essentially an informed consent cases. These kind of cases happen all the time. If this was a gastric bypass surgery, instead of an abortion, this wouldn't even be before the Court nor would any ink be spilled. But it is a little confusing why, because it is an abortion, typical judicial behavior should be sacrificed for the sake of over-vigilance about this area.

Not to belabor the point, but there is a reason this is an unanimous decision. If this was encroaching on abortion or diminishing it, you can be certain it would not have been so.
posted by dios at 4:07 PM on January 18, 2006

So dios, I think we're in agreement -- abortion legislation was getting stricter scrutiny before when it came to facial invalidation (totally mixing my legal metaphors, sorry); and now it's not.
posted by footnote at 4:31 PM on January 18, 2006

dios, footnote - great discussion. Thanks.
posted by rush at 9:21 AM on January 19, 2006