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Abortion in context: From New Hampshire to Arkansas to Alito

Today is a banner day for sane discussion of the medical procedure known as abortion, thanks to a plethora of articles in Tuesday's newspapers and Web sites that put the issue into legal, social and judicial context.

Let's start with The New York Times' court reporter Linda Greenhouse, who peels back the layers of Ayotte v. Planned Parenthood of Northern New England. The U.S. Supreme Court is expected to hear this case tomorrow -- its first on abortion in five years, Greenhouse notes -- and to examine New Hampshire's decision not to provide an exception to parental consent for non-life-threatening medical emergencies. Nope, not constitutional, said two lower courts, that barred enforcement of the law. Just when and how can federal courts "bar the enforcement of abortion restrictions that have not yet gone into effect" and haven't affected anybody? That's question number two.

Riffling through discussions of this issue on memeorandum, I see that Jill of Feministe invokes stare decisis: "While that second question is trickier, the first issue seems pretty clear to me: The Supreme Court already ruled that restrictions on abortion must have a health exception. Let’s see how much the new justice(s) actually value precedent when these cases come up."

Good question. When the precedent involved is Roe v. Wade, Supreme Court nominee Sam Alito may be wobbly, according to Legal Times reporter T. R. Goldman.  In his story, "Inside the Alito Memo," Goldman links Alito's 1985 application to work in the Reagan administration with his work on Thornburgh v. the American College of Obstetricians and Gynecologists. Goldman writes:

"In the Thornburgh case the government argued that Roe v. Wade's tenuous constitutional moorings make the principle of stare decisis less than sacrosanct. "A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability," the government wrote in its brief, "and thus is less aptly sheltered by [the doctrine of stare decisis] from criticism and abandonment."

"If Alito's jurisprudential views match those on the Thornburgh brief -- and at least in 1985, Alito indicated that they do -- then the job application provides the Judiciary Committee with the type of window into a future justice's thinking that, since the failed nomination of Robert Bork, has become almost nonexistent.

"This is not a personal belief that 'I don't like abortion,'" says Elliot Mincberg of People For the American Way, which is vigorously fighting the Alito nomination. "This is a personal legal belief about how the Constitution ought to be interpreted."

There's theory. And then there's reality. For a reality check on this procedure and the role it plays beyond the realm of theory, I recommend Stephanie Simon's story on Dr. William F. Harrison in Fayetteville, Arkansas, in today's Los Angeles Times. I won't excerpt any of it -- I just recommend you read the whole thing. Happily, many people are -- I see it's the #2 most e-mailed story, right behind "Bigger Butts Need Longer Needles for Injections."

Waiting in the wings: The issue of third trimester abortion. In addition to Greenhouse, read Bashman's other links here and here.

Related links:

SCOTUSblog: Tomorrow's Argument: Ayotte v. Planned Parenthood of Northern New England

Posted by Laurel Newby on November 29, 2005 at 01:16 PM | Permalink | TrackBack (0)

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