The Supreme Court's Surprisingly Unanimous Abortion Decision: A Parting Gift for Justice O'Connor?

By MICHAEL C. DORF

Monday, Jan. 30, 2006

In what will likely be the last opinion she authors for the Supreme Court, Justice Sandra Day O'Connor recently announced a surprisingly unanimous decision in an abortion case. In Ayotte v. Planned Parenthood of Northern New England, the Court invalidated a New Hampshire law requiring minors seeking abortions to notify their parents. The law was deemed unconstitutional because it failed to include an exception for circumstances in which a serious but non-life-threatening medical emergency requires an immediate abortion.

Ayotte is the first unanimous abortion decision since the 1973 ruling in Roe v. Wade, which itself was 7-2. Some of the Court's most important abortion rulings, including the 2000 decision striking down Nebraska's "partial-birth" abortion ban in Stenberg v. Carhart, were decided by a 5-4 margin.

So what accounts for the Court's unanimity in Ayotte? And what, if anything, does the case portend for future abortion rulings?

A Decision to Fight Another Day?

Justice O'Connor's Ayotte opinion begins with a declaration that not much is at stake in the case: "We do not revisit our abortion precedents today," she explains. Perhaps therein lies the reason for the Court's agreement. The case did not present the opportunity to revisit the foundational question of whether the state can restrict abortion.

But this explanation raises further questions. If the Justices who have dissented from prior abortion rulings--most notably, Justices Scalia and Thomas--were accepting the authority of Roe and other precedents only because the parties in Ayotte had not pressed an argument for overruling those other precedents, why didn't they say so?

In other areas of the law, Justice Thomas in particular has frequently written separate opinions explaining that he was accepting a line of precedent in a particular case because neither party had challenged that precedent, but that he would be sympathetic to overruling the underlying precedents in a future case, if the Court were asked to do so.

Furthermore, Justice Scalia has consistently argued that the Court's abortion precedents are not merely wrong, but wholly illegitimate--exceeding the Court's proper role in our constitutional system. So why did he and Justice Thomas keep silent in Ayotte?

One possibility is that they were doing a favor to Chief Justice Roberts by permitting him to avoid having to take a stand on Roe so early in his tenure. Suppose Justice Scalia or Thomas had written either a dissent or a concurring opinion explaining that he disagreed with Roe but was going along with the majority in this case. In that event, Chief Justice Roberts would have faced a difficult choice: On the one hand, if he joined the separate Scalia/Thomas opinion, he would be signaling a willingness to overturn Roe. On the other hand, if he did not join such a separate statement, he would be signaling a willingness to join the majority in preserving Roe. By remaining silent, Justices Scalia and Thomas spared Chief Justice Roberts the obligation to "out" himself, one way or the other, on abortion--thereby allowing him to send no signal at all.

Here's another possible explanation for the silence of Justice Scalia and Thomas: Perhaps they were making a gesture of goodwill to their retiring colleague. As a matter of tradition, a new Justice's first opinion for the Court is typically a unanimous ruling (a tradition carried out recently when Chief Justice Roberts handed down his first opinion). Perhaps Justice O'Connor's colleagues decided to extend the tradition to a final opinion as well.

Of course, such traditions do not require any Justice to vote against his or her conscience. But they do suggest ways for the Chief Justice to assign writing duties, as among the Justices. And they also suggest that, if an opinion has the potential to be unanimous, Justices may want to refrain from sowing divisions.

Accordingly, there is nothing intellectually dishonest about suppressing disagreement on tangential issues for the sake of unanimity on the main issue. After all, no one familiar with the prior writings of Justices Scalia and Thomas could reasonably think that by silently signing on to Justice O'Connor's Ayotte ruling, they were somehow saying that they had changed their minds about Roe v. Wade. That issue, everyone well knew, would remain open for future cases.

The Puzzling Votes of the "Persistent Dissenters"

The notion that the unanimity of Ayotte was a housewarming gift for Chief Justice Roberts or a parting gift to Justice O'Connor is implausible, however, because it doesn't explain the votes of Justices Scalia and Thomas. By contrast with other issues as to which Justice Thomas has signaled a willingness to re-examine a past precedent, on abortion, he and Justice Scalia have been persistent dissenters.

On most issues, a Justice who dissents from an initial ruling eventually comes to accept that ruling as more or less settled, and applies it. The originally dissenting Justice may apply the precedent narrowly, in an effort to avoid expanding it. She may even be willing to overturn the ruling from which she originally dissented when the Court's personnel change, or when one or more colleagues has a change of heart. But in the meantime, in the ordinary course, the Justice applies the precedent, notwithstanding her prior dissent.

In some circumstances, however, Justices persistently dissent. They refuse to accept a line of cases because they believe it to be not merely wrong, but profoundly wrong, illegitimate, and/or immoral.

Most famously, the late Justices Brennan and Marshall persistently dissented from the Court's decisions upholding the death penalty. They believed that capital punishment is cruel and unusual in all circumstances, and they refused to go along with the rulings that said it wasn't. Their persistent dissents even extended to decisions denying petitions for Supreme Court review, which are typically announced summarily, without any written opinion. In case after case, Justices Brennan and Marshall voted to stay executions, and reiterated their dissent in the pages of the U.S. Reports.

Similarly, Justices Scalia and Thomas have been persistent dissenters in abortion cases. Nothing whatsoever in anything either of them has written since taking a seat on the high court suggests a willingness to apply, rather than to overrule, the Court's abortion doctrine.

Yet in voting as they did in Ayotte, Justices Scalia and Thomas applied Roe and subsequent precedents. The decision holds that a parental notification law is invalid if it does not contain a health emergency exception. That is a fairly straightforward application of Roe, so why did Justices Scalia and Thomas go along?

Did Scalia and Thomas Simply Agree on the Merits?

The best explanation for their votes may be that they thought the New Hampshire law actually was unconstitutional, though on much narrower grounds than Justice O'Connor and others thought. For Justices Scalia and Thomas, Ayotte may not have been a case about abortion at all, but a case about health more broadly.

Remember, the case was about a particularly rigid statute that forced a young girl to continue a pregnancy until her parents could be notified or a court convened, even in a medical emergency, as long as a doctor predicted she would barely survive. One need not be a supporter of abortion rights to find such a plight unacceptable. A hypothetical case will illustrate what I have in mind.

Suppose that a state has a law requiring that before performing any surgery on a minor, a doctor must ensure that the minor has notified her parents of her plan. Suppose further that, just like New Hampshire's abortion law, the surgery notification law contains an exception for surgery that is necessary to save the minor's life, but contains no exception for non-life-threatening health emergencies. Finally, suppose a minor breaks her leg while skiing in a remote mountain village and that the attending physician cannot reach either the minor's parents or a judge (who, as in the actual New Hampshire abortion law, could legally authorize the doctor to go forward under the surgery notification law). If the doctor's best medical judgment were that surgery needed to be performed immediately or else the minor's leg would need to be amputated, does the Constitution permit the doctor to be prosecuted for taking this limb-saving measure?

I have little doubt that a majority of the Supreme Court would say that enforcing the surgery notification law under these circumstances would be unconstitutional. The law is generally valid. In general, the state is entitled to say that parents should be consulted about surgery for their minor children. But where immediate surgery is necessary to avert a serious threat to health, it is patently unreasonable for the law to insist on parental notification. The girl has a constitutional right to be free of state regulation that effectively subjects her to a serious risk of losing a limb.

Whether Justices Scalia and Thomas would agree with this line of analysis is unclear. They have sometimes suggested that the legal doctrine that I have tacitly employed here--what constitutional lawyers call "substantive due process"--is wholly illegitimate. But I suspect that nonetheless they would find a way to avoid the monstrous result that a state can require a minor to forfeit a limb for no good reason.

Justice Scalia once described himself as a "faint-hearted originalist," by which he meant that in cases in which enforcing the original understanding of the Constitution would lead to truly sickening results, he would abandon the original understanding. Perhaps he and Justice Thomas are likewise faint-hearted critics of substantive due process--both in my hypothetical case, and in the actual New Hampshire abortion case.

A Portent of a Messy Post-Roe Future

In his dissent from the 1992 ruling in Planned Parenthood v. Casey--in which a 5-4 Court reaffirmed what it called the "central holding" of Roe--Justice Scalia concluded his denunciation of the Court's abortion jurisprudence with a declaration that he and his fellow Justices "should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining." Yet, my analysis of Ayotte suggests that "getting out" is an impossibility. Even if the Court were to allow most regulations of abortion, hard questions would arise.

Suppose, for example, that a state abortion prohibition contained no exception for non-life-threatening health risks to an adult woman, rather than a minor. Would that law be invalid under the reasoning I have suggested was at work in Ayotte?

If not, what if an abortion prohibition contained no exception for life-threatening health risks? Could a state require a woman to obtain certification of a life-threatening condition from two doctors? From a state-appointed doctor?

What level of risk to life could a state insist that a woman accept before she would be permitted to obtain an abortion? One percent? Ten percent? Fifty percent?

And what about an exception for pregnancies that result from rape? In a post-Roe world, could a state simply prohibit these abortions? Could it make abortion available in such circumstances only upon a preliminary adjudication that a rape occurred? Only upon the filing of criminal charges by the woman?

It is simply naÏve to think that the Court can "get out" of the abortion area by overruling Roe v. Wade, for thankfully--as Ayotte seems to demonstrate--even those Justices who believe that case was wrongly decided, are not completely devoid of sympathy for the people who would find themselves imperiled by the most extreme anti-abortion legislation.

It is likewise naÏve to think that such legislation would not be enacted, were Roe to be overruled. The New Hampshire legislature that adopted the parental notification law struck down in Ayotte expressly considered and expressly rejected an exception for non-life-threatening health emergencies. They did so because they worried that a health exception would effectively undermine the prohibition, because of inherent ambiguities in the term "health."

That worry is not wholly without reason. In France, for example, abortion is nominally forbidden, but a woman may obtain an abortion during the first ten weeks of pregnancy by telling her doctor she is in "distress" (and complying with some procedural formalities). The distress exception means that early abortion is, in practice, widely available in France.

If Roe were overruled, it is likely that pro-life states would have even greater reason to worry that a health exception could swallow an abortion prohibition, and thus we could expect a string of cases challenging variously worded health exceptions.

A Procedural Compromise

Of course, we do not currently live in a post-Roe world. The Ayotte decision is meant to function in the here and now, and it treated the requirement of an exception for non-life-threatening health emergencies as a mere starting point. As I explained in a column following the oral argument in Ayotte, the rather technical issue in the case was what remedy, if any, the federal courts were empowered to grant.

The state argued that Planned Parenthood's challenge should be dismissed because the New Hampshire law was constitutional in nearly all of its applications--that is, in those cases in which the minor seeking an abortion did not face a health-but-not-life-threatening emergency necessitating an immediate abortion. Planned Parenthood argued that the failure of the legislature to include the health emergency exemption rendered the entire minor notification provision invalid.

The Court split the difference between these two polar views--the views that the statute should be upheld as is, and that it should be junked entirely. It sent the case back to the lower federal courts to address the "severability: issue--the question of how much of the statute, if any, can be salvaged in light of this unconstitutional aspect.

In reaching unanimity on a procedural ground for decision in Ayotte, the Justices forestalled but did not avoid a fight. With a decision on the validity of the partial-birth abortion ban looming for a Court that will almost certainly include Justice Alito in place of Justice O'Connor, the issue of abortion will not go away--regardless of Roe's ultimate fate.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield later this year.

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