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Ayotte

[ 0 ] November 30, 2005 |

Oral arguments in the crucial abortion case Ayotte v. Planned Parenthood will be on C-SPAN at 12:15 ET. I’ll have live or post-blogging as interesting developments warrant.

…great question by Souter, which Ayotte simply can’t answer. New Hampshire seems to be arguing that despite the choice of New Hampshire not to include a health exception a doctor who provided an emergency abortion to protect a woman’s health without parental notification would be “constitutionally protected,” but when pressed (Souter asked twice where this constitutional protection came from, and Ayotte refused to answer) Ayotte wouldn’t acknowledge the obvious: that the heath exemption is clearly required by Roe and Carhart, and hence the New Hampshire law is obviously unconstitutional under current law.

…to put the facial challenge issue being dicussed in context, let’s consider what Salerno–the case the statute’s defenders would like to apply in order to protect the statute from being struck down based on a facial challenge–says:

“A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid…”

Compare this with Casey: “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” To state the obvious, as Souter and Breyer have pointed out repeatedly these two standards are utterly incompatible. And under the Salerno rule, virtually no abortion regulation could be struck down under the standard. The sick irony is that the fact that such regulations generally don’t have much impact on healthy middle-class women in stable families will make them impossible to strike down.

…interesting argument overall. Casey‘s supporters on the court, at least, for once aren’t going down without a fight; it was nice to see Souter going toe-to-toe with Scalia, and Breyer, Stevens and Ginsburg were all active and had good questions. Scalia wasn’t able to dominate proceedings like he normally does. Alas, unless they can get Kennedy’s 6th vote it’s all moot because the case will probably be re-argued.

…welcome to readers from Alas, A Blog! More detailed and considered thoughts about Ayotte here.

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