O'Connor's Last Ruling On Abortion Could Open Door To Tinkering

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and could actually narrow abortion rights. Instead of allowing lower courts to throw out entire abortion laws, O'Connor's ruling expects them to tinker with the legislation to make it conform with their ordinances governing women's health. What may happen is that other interests may use the ruling to further dismantle abortion laws to conform to whatever doctrine they deem essential.


from SCOTUSblog: http://www.scotusblog.com/movabletype/archives/2006/01/court_rules_on.html

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.


It also threatens abortion rights, in my opinion, by putting a limit on sweeping lower court rulings which seek to throw out overly restrictive abortion regulations.

It could also be that O'Connor's ruling will give federal courts authority to rewrite abortion laws under the pretext of tailoring them to whatever doctrine or state ordinance they recognize.

article on rulings:
http://public.findlaw.com/pnews/news/ap/p/56/01-18-2006/0e37001d0d38f82d.html

the opinion:
http://a257.g.akamaitech.net/7/257/2422/18jan20061100/www.supremecourtus.gov/opinions/05pdf/04-1144.pdf

oral argument:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/04-1144.pdf

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1. so reduce lower courts' power...

... so that abortion laws could only be nullified by upper courts, which are stacked in such a way as to ensure it wouldn't happen?

:scared::scared:Esp. if Alito is confirmed? :scared::scared:

And to think, all this because people don't want to mind their own business and stay out of other women's wombs. What a waste of time. :eyes:

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2. reduce lower courts power to overturn laws

but give them the discretion to reach inside the law and hold different parts valid or not. It give this guidance on remand:

from the opinion: http://a257.g.akamaitech.net/7/257/2422/18jan20061100/www.supremecourtus.gov/opinions/05pdf/04-1144.pdf

(c)Because an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statue in toto(throwing it out completely) should obviate
any concern about the Act ’s life exception, this Court need not pass on the lower courts ’ alternative holding. If the Act survives in part on remand, the Court of Appeals should address respondents ’ separate objection to the judicial bypass ’ confidentiality provision.

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4. so courts can rewrite any laws, over/abv abortion issue?

:shrug:
That plus the executive's "signing statement" powers can really mess with the will of Congress.

So, then, if I'm right, even if Dems take back Congress in 2006, the GOP (with stacked courts and the WH) still have near-complete power in Govt.

Never a dull moment.

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5. zealously jumping on your reply . . .

Supreme Court's Ruling in Ayotte v. Planned Parenthood Emphasizes Importance of New Attacks on Choice, Says NARAL Pro-Choice America

1/18/2006 3:26:00 PM
http://releases.usnewswire.com/GetRelease.asp?id=59434

Contact: Ted Miller of NARAL Pro-Choice America, 202-973-3032

WASHINGTON, Jan. 18 /U.S. Newswire/ -- Nancy Keenan, president of NARAL Pro-Choice America, called the Supreme Court's decision in Ayotte v. Planned Parenthood of Northern New England a stark reminder of the courts' role in either protecting or undermining the core principles of women's reproductive freedom.

"The Ayotte case is an example of how lawmakers at the state and federal levels are continuing to exploit every opportunity to take away our reproductive freedom -- even while Roe v. Wade stands. Today, we are issuing our 15th annual report summarizing women's access to healthcare nationwide and exposing the persistent threat facing reproductive freedom across the 50 states.

"While it is certainly heartening that the Court did not use this case to overturn specific precedents that protect women's health, this decision does mark a departure from prior cases. In the past, abortion restrictions that did not include protection for women's health would have been struck down in their entirety. After today's decision, that is no longer the case.

"We may not know the full impact of this decision on the lives of American women for years to come. We do know that this decision could be a green light to anti-choice legislators to enact laws that endanger women's health with an assurance lawmakers did not previously have: That for women and their doctors these restrictions could remain largely enforceable.

"The Court's decision in Ayotte will not prevent anti-choice politicians from pursuing additional opportunities to dismantle women's access to reproductive healthcare," Keenan said.

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For a copy of the 2006 edition of NARAL Pro-Choice America's report 'Who Decides? The Status of Women's Reproductive Rights in the United States', please visit their website at http://www.prochoiceamerica.org/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=18491

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3. from Jack Balkin: federal courts are now free to rewrite abortion statutes

http://balkin.blogspot.com/2006/01/ayotte-compromise.html

(5) What effects will this ruling have? Who are the winners and losers?

On the one hand, New Hampshire and abortion opponents win to the extent that plaintiffs must now bring what are effectively as applied challenges to new abortion statutes. If the statute is unconstitutional only as to a small number of persons, courts should not strike the whole statute down but impose carve-outs. This means that legislatures are freer to pass restrictive abortion laws with the idea that courts will carve out unconstitutional applications later one.

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.

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.

full article: http://balkin.blogspot.com/2006/01/ayotte-compromise.html