Justices correct in returning parental notice case to appeals court, Land says
- Jan 13, 2006
In a Jan. 18 ruling unanimously that two lower courts went too far in striking down in its entirety a state law requiring parental notification before an underage girl has an abortion, the Supreme Court provided pro-life Americans hope that a soon-to-be remade Supreme Court will look askance at state laws that allow abortion without restriction, Richard Land said.
No issues of substance regarding its previous rulings on abortion were addressed in the opinion, the high court acknowledged. Instead, the justices vacated the decision of the First Circuit Court of Appeals and returned the case involving a New Hampshire law to that court for reconsideration.
The Supreme Court is likely to encounter the case again. If it does, the high court may have an additional member more receptive to state restrictions on abortion.
“The fact that this was a unanimous decision written by Justice O’Connor indicates the court was uncomfortable making what at best would be an interim decision, given the changing nature of the court with Justice O’Connor’s retirement,” said Land, president of the Southern Baptist Convention’s entity assigned to address ethical, moral and religious liberty issues.
“Whichever side loses this case that has now been sent back to the lower court, it will appeal back to the new Supreme Court with Justice Alito instead of Justice O’Connor providing the potential swing vote,” he said.
Associate Justice Sandra Day O’Connor has announced her retirement, and Samuel Alito, who has been nominated by President Bush to replace her, is expected to be confirmed later this month. O’Connor has provided an important vote to uphold abortion rights and to strike down some state restrictions on the practice. Pro-life advocates hope Alito will support state regulation of abortion and possibly provide a vote ultimately to reverse the 1973 Roe v. Wade opinion legalizing abortion.
The Supreme Court decision amounts to a “tie or postponement by inclement weather for the pro-life cause,” said ERLC President Richard Land, using a baseball metaphor to describe the action. “That is not as good as a win, but it is sure better than a loss, and the parental notification act has lived to fight another day,” he added.
Both of the lower courts ruled the entire law was unconstitutional because it did not include an exception when the girl’s health is threatened. That went too far, O’Connor wrote.
“[T]he courts below chose the most blunt remedy – permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely,” O’Connor wrote. The high court agrees with the state “that the lower courts need not have invalidated the law wholesale,” she said.