Wednesday, January 16, 2008

Its that time of the year again

The legislature is starting up next week for another marathon-but-time-wise-short session. Per usual, the papers are reporting the most controversial bills, which benefits liberal activist groups, conservative activist groups, and the conservative legislators that push them. Today, we have one on abortion, an old stand by for conservative legislators to push. Utah has always been on the bleeding edge of abortion laws, testing what is the outer limits of restrictions on the US Supreme Court's interpretation of the right of privacy. Some times they lose, most times they just follow what other test states have done that was upheld.
Currently, state law allows a minor to get court permission instead of parental consent for an abortion in certain cases, and parents are never notified their child is petitioning the court.
That doesn't seem right to [Rep. Stephen Sandstrom] Sandstrom [(R-Orem)].
"For something as life-altering as an abortion, parents should have a right to say," Sandstrom said.
Sandstrom also would like to reduce the reasons for requesting a bypass to only cases in which the pregnancy was the result of incest or if her parent previously was convicted of child abuse. Currently, minors have to convince the court the pregnancy has put them at risk of death or debilitating injury, it was the result of incest or that the minor's parents will abuse her if they find out she's pregnant or wants an abortion.
... Only eight minors have filed since the law was enacted in 2006.
Now lets go back to the last monumental case on Abortion--1992's Casey v. Planned Parenthood of Southeastern Pennsylvania (The 2007 case which upheld Congress's ban on so-called "partial-birth abortion" (Gonzales v. Carthart) explicitedly stated it was not overturning Casey even if its reasoning was directly at odds with O'Connor's opinion in Casey). Anyway, here is relevant part in Casey:
We next consider the parental consent provision. Except in a medical emergency, an unemancipated young woman under 18 may not obtain an abortion unless she and one of her parents (or guardian) provides informed consent as defined above. If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has, in fact, given her informed consent, or that an abortion would be in her best interests.

We have been over most of this ground before. Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure. See, e.g., Akron II, 497 U.S., at 510 -519; Hodgson, 497 U.S., at 461 (O'Connor, J., concurring in part and concurring in judgment in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part); Akron I, 462 U.S., at 440 ; Bellotti II, 443 U.S., at 643 -644 (plurality opinion). Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional.
And then in 2005, the court issued an unanimous opinion against a NH law that was similar to State Rep. Sandtrom's. It was called Ayotte v. Planned Parenthood of Northern New England The court only reversed the First Circuit's invalidating the entire statute because it wanted the NH legislature to tweak the provisions relating to whether a doctor needed parental consent even if the conditions for a judicial bypass (The minor is pregnant as a result of incest with the parent or guardian OR The parent has abused the minor OR The parent has not assumed responsibility for the minor's upbringing) or health of the mother exceptions existed. That is, the legislature was basically asked to make sure the existing exemptions under abortion jurisprudence (health of the mother and judicial bypass) remained intact and not subject to parental notification (and approval).

This is all to say that while Rep. Sandstrom's position may seem right, it is not constitutional at this point. Of course, Ayotte came out before Justice O'Connor was replaced by Justice Alito and maybe the 3 other arch conservatives feel empowered now that Alito (who authored the Circuit court opinion that upheld PA's law that was later overturned in Casey by O'Connor) is with them and they "won" Carthart II. So maybe Rep. Sandstrom's bill is a much more subtle attack on Casey and Roe than the full frontal one the legislature is also considering. Only time will tell if this bill will pass and if the Court will decide to overrule Ayotte.

Sorry about all of the constitutional law crap, but that article brought out the inner con law nerd in me.

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