Louise Melling, Director of the ACLU Reproductive Freedom ProjectNEWS
Supreme Court Urged to Protect Women's Health
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Slide Show of the November 30 Press Conference
C-SPAN covers Ayotte (off-site link)
This week, the ACLU will present arguments in Ayotte v. Planned Parenthood et al. before the Supreme Court. If the Court accepts the arguments put forth by the government, the decision could effectively eliminate the requirement that abortion laws include protections for women’s health. The decision could allow any state to legislate against doctors putting their patients’ health first – when that patient is a woman seeking an abortion.
Louise Melling, Director of the ACLU Reproductive Freedom Project answers key questions about this landmark suit.
WHY IS AYOTTE V. PLANNED PARENTHOOD SO IMPORTANT?
If the Court accepts the arguments put forth by the New Hampshire Attorney General and the Bush Administration, it could effectively eliminate the requirement that abortion laws must include protections for women’s health. It could take away the ability to stop anti-abortion laws, when doctors believe the laws would hurt their patients’ health.
WHAT EXACTLY IS THE SUPREME COURT CONSIDERING IN AYOTTE?
There are two questions. The first is, Must abortion restrictions include medical emergency exceptions to protect women’s health? The second is, What legal test must courts use to decide whether to strike down a law that harms women?
When it comes to protecting women’s health, the Court has been clear. For the past three decades, the Court has consistently held that abortion laws must include protections for women’s health.
Currently, courts can strike down dangerous abortion restrictions before they go into effect if the restrictions place a substantial obstacle in the path of women seeking abortions.
The government, the New Hampshire Attorney General and the Bush Administration, want to change the standard: they have asked the Court to significantly limit the ability of doctors and women to stop dangerous abortion restrictions before they can cause serious harm to women. They have urged the Court to uphold New Hampshire’s law, and any other abortion restriction, unless there are no circumstances in which the law can be constitutionally applied.
Under this scenario, women or their doctors would have to go to court to seek exceptions for individual women or for groups of women who would be harmed by the law.
But the government goes further. For decades, women and their doctors have been able to go to court to strike down dangerous abortion restrictions before they go into effect and before any woman could be harmed. The government now argues that courts should require doctors to wait until their patients risk immediate harm before coming to court and challenging a dangerous restriction.
WHY DO WOMEN NEED EMERGENCY ABORTIONS TO PROTECT THEIR HEALTH?
It's not uncommon for pregnant women to experience complications during a pregnancy. Depending on a woman’s condition, delaying an emergency abortion could lead to liver or kidney dysfunction, infertility, blindness, or chronic pain.
WILL THIS CASE CHANGE ROE V. WADE?
If the New Hampshire Attorney General and Bush Administration prevail in Ayotte v. Planned Parenthood of Northern New England et al., we could go from a world in which doctors and women have been able to block dangerous laws to prevent real harm to women’s health, to one in which doctors and individual women would have to go to court, in a moment of immediate need, to seek permission to have an abortion. Under this regime, Roe v. Wade and the right to abortion will remain standing, but women’s health and access to safe and legal abortion will be dangerously compromised.
WHAT IS THE NEW HAMPSHIRE ABORTION LAW ABOUT?
Ayotte began as a case challenging a New Hampshire law that prevents doctors from performing an abortion for a teenager under the age of 18 until 48 hours after a parent has been notified. Contrary to Supreme Court precedent, the law contains no medical emergency exception to protect a pregnant teenager’s health. The lower courts struck down the law because of this omission.
A decision by the Supreme Court in this case, however, could reach far beyond New Hampshire, forbidding doctors throughout the country from putting their patient’s health first – when that patient is a teen or an adult woman seeking an abortion.
WHAT HAPPENS IF THE SENATE HAS NOT CONFIRMED A NOMINEE TO REPLACE SUPREME COURT JUSTICE SANDRA DAY O’CONNOR BEFORE THE CASE IS HEARD ON NOVEMBER 30?
Justice O’Connor has agreed to remain on the bench until the Senate has confirmed her replacement. Because a replacement will not confirmed by November 30 when the Court hears oral argument in Ayotte, Justice O’Connor will hear the case. But that does not mean she will participate in the decision.
The Court has until the end of the term in June 2O06 to issue a decision in the case. If a new justice is confirmed after argument, and the remaining justices are divided 4-4, the case could be scheduled for re-argument or the lower court decision striking down the law could be affirmed without opinion. In such cases, the Court typically enters a one-sentence order announcing that the judgment of the lower court has been affirmed by "an equally divided court."
WHO CHALLENGED THE NEW HAMPSHIRE LAW?
The New Hampshire providers challenging the law are Planned Parenthood of Northern New England, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth, and Wayne Goldner, M.D.
The plaintiffs are represented by Jennifer Dalven, Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, and Diana Kasdan of the American Civil Liberties Union; Dara Klassel of Planned Parenthood Federation of America; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, of Nixon Raiche Manning Vogelman & Leach, PA and Legal Director of the New Hampshire Civil Liberties Union.
WHERE CAN I FIND OUT MORE ABOUT THE CASE?
The Web site www.ayottevplannedparenthood.org features background materials onthe case, including all the legal briefs filed on behalf of the plaintiffs.
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