Court seeks compromise.
Because abortion and pregnancy both produce irrevocable outcomes, the most passionate opponents in the battle over reproductive rights may never reach a middle ground. "Compromise" isn't listed in their lexicon of the abortion debate.
But elsewhere - even within courtrooms - shades of gray are beginning to filter like smoke through cracks in the black-and-white wall. How else to account for this reaction to Wednesday's unanimous U.S. Supreme Court ruling on a New Hampshire law that requires a teenager to inform a parent before obtaining an abortion:
The decision was hailed as "good news" by James Bopp, general counsel to the National Right to Life Committee.
From the opposite side of the aisle, Jennifer Dalven, an American Civil Liberties Union lawyer who argued the case before the high court, said, "Today's decision tells politicians that they cannot jeopardize women's health when they pass abortion laws."
The ruling that drew praise from opposing attorneys in Ayotte vs. Planned Parenthood of Northern New England wasn't on the merits of upholding or striking down New Hampshire's strict parental notification law. Rather, all nine justices agreed to send the case back to the lower court to reconsider whether it was appropriate to declare the entire law unconstitutional when only a portion of it raised constitutional questions.
Retiring Justice Sandra Day O'Connor wrote the 10-page opinion, the first Supreme Court ruling on abortion in six years. The opinion is likely the last she'll render if Judge Samuel Alito is confirmed as her replacement. It was a particularly appropriate issue for O'Connor, since she is the architect of the Supreme Court's "undue burden" principle, which is at the heart of the New Hampshire case.
At issue was whether the New Hampshire law created an undue burden on a woman's right to an abortion, and whether the lack of a broad health exception in the notification law rendered the entire law unconstitutional.
The undue burden argument stood little chance of swaying this court, even with O'Connor's partici- pation.
"States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy," O'Connor said. Forty-four states have some form of parental notification law.
But New Hampshire's law didn't provide for any exceptions in medical emergencies. The high court has previously ruled that states "may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother."
Two lower courts entirely voided New Hampshire's law because it did not include the exception for medical emergencies. O'Connor called this a "blunt remedy" that went too far. "We agree with New Hampshire that the lower courts need not have invalidated the law wholesale," she said.
The idea that an abortion law with a constitutional flaw could be fixed rather than struck down represented a shift on the high court and reflected the influence of new Chief Justice John Roberts. O'Connor acknowledged that the lower court actions were understandable in light of the Supreme Court's decision to strike down a Nebraska ban on late-term abortions because it lacked a health exception.
If there is a lesson to be taken from this decision, it could well be that the Supreme Court wants both sides in the abortion conflict to let go of all-or-nothing expectations. That message could help put a stop to the destructive, outright abortion bans being proposed in Indiana and Ohio as a way to force reconsideration of Roe vs. Wade.
As Chief Justice Roberts said during his confirmation hearings, Roe is "settled law."
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|Title Annotation:||Editorials; Unanimous abortion ruling praised by both sides|
|Publication:||The Register-Guard (Eugene, OR)|
|Date:||Jan 19, 2006|
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