Why did the Supreme Court refuse to affirm the federal appeals court decision that said that the New Hampshire Parental Notification Act was unconstitutional?
Politics, pure and simple. Politics with a capital P. More subtle, perhaps, than Bush v. Gore, but politics nonetheless.
The Supreme Court, if O'Connor were not a lame duck, and even with Chief Justice Roberts, should have affirmed the lower court decision. The Supreme Court, without Justice O'Connor, and with Samuel Alito, will clearly reverse that decision. The Supreme Court, which has a commitment to maintain its air of stability, did not want back-to-back contradictory decisions. It was O'Connor's wish, and that of her colleagues, that the Supreme Court would not seem to be so politically influenced by either side in the abortion dispute.
The Supreme Court judges have a commitment to maintaining the facade that theirs is a nonpolitical institution with extraordinary collegiality and agreement between the judges that this country is governed by an objective rule of law. We saw that commitment very recently as the small eruptions after Bush v. Gore were quickly papered over. Justice Ginsburg's criticism of the Bush v. Gore court, Sandra Day O'Connor's statements indicating her distress when she thought Gore had won are, according to these justices, aberrations of the past.
Since Bush v. Gore, many of the justices have written books, appeared on television and in the print media trying to show that collegiality. For example, Justice Breyer's recent book, Activate Liberty: Interpreting Our Democratic Constitution, is a paean to the institutional role of the Court. These justices refused to acknowledge what many other Supreme Court justices have acknowledged. Many previous justices, including Brennan and White, agree with Justice Hughes' concept that 90% of any decision is based on personal bias and predilection and only 10% on precedent.
Nothing shows this more than yesterday's Supreme Court decision.
New Hampshire's Parental Notification Act prohibits doctors from performing an abortion on a pregnant minor until 48 hours after written notice of the abortion is delivered to her parents or guardians. The lower federal court struck down the law because it interfered with rights granted in Roe v. Wade. The statute did not permit an adequate waiver of the 48-hour notification if the woman's health is at stake.
The statute required that the doctor state the abortion was "necessary," and this the lower court found to thwart Roe v. Wade because it required the doctor to render an opinion with "impossible precision." The First Circuit Court of Appeals, one of the best appellate courts in the country said that the life exception was "intolerably vague" and forced doctors to "gamble with their patients' lives" by barring them from performing abortions without notice until they were certain that death was imminent.
The Supreme Court, in its 9-0 opinion, stated that the circuit court's decision, while wrong, was understandable because it was based on a previous Supreme Court case, Sternberg v. Cathart. That case held Nebraska's Partial Birth Abortion Act unconstitutional because it did not say that if the woman's health required it then the partial birth abortion would be appropriate.
Why then, did the Supreme Court not affirm on the basis of the Sternberg decision?
Because the Supreme Court knows that the Sternberg decision is soon to be reversed. Sternberg was a 5-4 decision. Alito replaces O'Connor. Justice Kennedy, who was in the minority in Sternberg, will be in the majority, and partial birth abortions will then be prohibited.
Today, the Supreme Court, in conference, will decide whether or not to take the case that will immediately reverse Sternberg.
And then, when the Parental Notification Act comes up to the Supreme Court, the Court will accept the placing of such obstacles to the teenager's attempt to get an abortion that her right to do so will be strangled.
44 states now have parental notification laws. Some of the notification laws, even though they seem to have health exceptions (like the New Hampshire law) are formidable obstacles to abortions. These laws generally allow a minor to avoid telling a parent if they can convince a judge that they would face abuse from the parent, or that they are mature enough to make a decision on their own. Her right to an abortion then depends on the state or federal judge she appears before.
But the federal bench is now stacked with conservative judges. All but 3 of the 12 circuit courts are controlled by conservatives. By the time 2008 comes around, at least 2 more of the appeals courts may be conservative. And a large majority of federal trial judges are conservative. It is unlikely that they will find in a teenager's favor, and it is unlikely that they will be sympathetic to doctors who will perform these abortions.
With Alito, it will be very hard to defeat anti-abortion laws aimed at minors or stopping partial birth abortions. The Supreme Court's Casey decision in 1992 said anti-abortion regulations would not be upheld if they posed an "undue burden" on women seeking abortions. The Court rejected an opinion from Alito (while he was in the circuit court), who wanted a different test, one that allowed the courts to more easily strike down abortion laws.
Why did the pro-choice judges not write an opinion and express their view that the Parental Notification Act was unconstitutional? For the same reasons that the liberal judges did not continue to attack the Supreme Court after Bush v. Gore. They saw it as a losing battle and one that would only make clear that the Court makes decisions primarily on political and cultural fault lines.
When I was a younger lawyer, I thought that the substantive law was far more important than process. Now we see clearly that Roe v. Wade can be forever upheld, but by changing process (as Alito wanted to do in Casey), abortion can be denied throughout the country.
The Supreme Court yesterday made very clear that Alito's presence on the Court will eviscerate Roe v. Wade. The only way to stop that is to stop Alito's nomination.