On its surface, January's decision in the New Hampshire parental-notification case, Ayotte v. Planned Parenthood, failed to deliver anything new on the pro-life front, as the Supreme Court merely sent the case back down to the lower federal courts for further consideration. After all, Justice O'Connor emphatically stated in the opening sentence of the Court's unanimous opinion: "We do not revisit our abortion precedents today . . ."
So was it just another disappointing victory for precedent and Roe v. Wade?
The answer is "no," and the reason has nothing to do with precedent, but everything to do with conventional wisdom.
Much was made of the significance of Supreme Court precedent at the recent Alito and Roberts confirmation hearings. "Precedent" is, simply put, a prior court decision. Judges usually adhere (with certain exceptions) to the holdings of prior cases of their own court or courts of higher rank when deciding similar cases. This adherence promotes continuity and predictability in the law, which is a good thing.
As it so happens, conventional wisdom plays a role almost as important as precedent. For example, what guides lawyers, judges and legislatures in predicting answers to questions concerning the effect of precedent on proposed laws and/or different factual situations? Precedent never quite resolves all the riddles pertaining to all the variations on a particular issue that may arise in the future. The differences in situations leave room for the necessity of making educated guesses as to how courts, and especially the Supreme Court, would address those differences. Hence, conventional wisdom thrives as a cottage industry as the legal community, judges, the press and pundits attempt to chart the logical flow from one case to the next and from one statute to the next.
For, example, conventional wisdom for a long time held that abortion regulations had to contain a "health exception" in order to be constitutional. (A health exception provides that the statute would not apply in situations where the health of the mother is endangered.) State lawmakers learned the hard lesson that if an abortion regulation could be avoided by an abortionist for a "health" reason such as the emotional state of the would-be mother, then all abortion regulation could be sidestepped and the legislative goal of reducing abortions would be frustrated. Legislative attempts to leave out a health exception usually ended up on the wrong end of a court opinion. When the Supreme Court swatted down Nebraska 's partial-birth abortion ban in 2000 because of the lack of a health exception, the conventional wisdom was reinforced.
A second piece of abortion conventional wisdom held that abortion laws could be challenged and struck down in their entirety before ever going into effect. Even though this was a departure from its own precedent, the Court seemed to embrace these so-called "facial" challenges to abortion statutes. Thus, Planned Parenthood and other abortion advocates held a huge club which they routinely used to prevent state legislators, as well as Congress, from even getting out of the starting gate in trying to regulate and hopefully reduce the number of abortions performed.
Surprisingly, Ayotte shot gaping holes in both notions.
First, the Court did not agree with the 1st Circuit's ruling that automatically struck down the New Hampshire law for failing to contain a health exception. That in itself was unexpected by a large part of the legal establishment. Instead, it ordered the lower courts to fashion an exception to the New Hampshire statute for true "medical emergencies," a far cry from the inclusion of a generalized "health exception" so many had thought was required in any abortion statute.
Second, O'Connor's opinion (remember, she was speaking for a unanimous Court) rejected Planned Parenthood's request to invalidate the entire New Hampshire statute, instead focusing on the Court's more historical position that a statute should be allowed to go into effect and only the relatively few unconstitutional applications of the statute should be prohibited.
The effect of those two blows to conventional wisdom will be stunning. Already, lower courts are catching on. The 6th Circuit recently addressed a federal district court ruling striking down an Ohio statute, in its entirety and before taking effect, which regulated the RU-486 abortion drug. The district court cited the lack of a health exception in its decision. Relying on Ayotte, the Court of Appeals told the lower court it was wrong and to try again.
Which brings us to the Supreme Court's recent acceptance of the appeal of an 8th Circuit case, Gonzales v. Carhart, which last year ruled unconstitutional the federal Partial Birth Abortion Ban Act of 2003. The case will be argued in the fall of 2006. Conventional wisdom suggests that the statute might be struck down for the same reasons as a Nebraska ban was ruled unconstitutional in 2000 by a 5-4 majority of the Supreme Court. The new makeup of the Court, however, with the substitution of Samuel Alito for Sandra Day O'Connor, places that conventional wisdom in doubt.
If Ayotte proves anything, it's that the Supreme Court can seemingly stand still and dramatically alter the face of the abortion battle at the same time. Although it has not been loudly trumpeted, Ayotte handed pro-lifers a significant victory. Given the current ferocity of the culture war over abortion, marriage and religious expression, it may be that the Court under its new chief justice is attempting to steer away from its decades-long adventures in judicial activism in favor of a more modest approach of judicial restraint.
And that type of wisdom would be pretty unconventional for the Supreme Court.
