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U.S. Supreme Court Hears First Abortion Cases in Five Years | Jonathan M. Saenz, Attorney, Liberty Legal Institute

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On November 30, 2005, the U.S. Supreme Court heard oral arguments on an abortion case for the first time in five years. This also marked the first abortion cases to be heard by our new Chief Justice, John Roberts.

The scene outside the courthouse was as expected. Early that morning and hours before oral arguments were to begin, crowds of people had already lined up to gain a precious first come, first served seat inside the highest court in our land. There were demonstrators on both sides of the life debate and live Christian music was being performed on the plaza directly in front of the Court. Especially noticeable were the young pro-life demonstrators with tape over their mouths with the word "LIFE" written across it in large, block letters. The courtroom itself was very imposing and you could sense the significance and importance of the day. Even lawyers were lined up outside waiting to get in, and were seated shoulder to shoulder once they were admitted.

The first abortion case asked if the RICO (Racketeer Influenced and Corrupt Organizations) statute should be applied to pro-life protesters, an absurd idea the Supreme Court rejected just two years before. Based upon the oral argument and comments of the Justices, I feel confident that the Court will rule the same way again.

Lower Courts Denied Parental Notification Before Abortion

The other abortion case, Ayotte v. Planned Parenthood, involved the issue of parental notification. Planned Parenthood of Northern New England and a group of abortion providers filed a lawsuit in 2003 challenging the New Hampshire state law just weeks before it was to go into effect. This law requires that at least one parent be notified before an abortion is performed on a minor, except when it is necessary to save the life of the mother, or if the minor receives a court order allowing her to bypass such requirement. A few days before the law was to go into effect, a federal district judge struck down the entire law, as unconstitutional. In 2004, a federal court of appeals upheld the district court’s decision.

U.S. Supreme Court Has Opportunity to Overturn Lower Courts

The U.S. Supreme Court has an opportunity to protect innocent young girls and the rights of their parents to protect their daughters and stay informed of any medical attention they request. This Court has previously upheld the right of states to require parental notification before performing an abortion on a minor, expressing support for the role of parents and recognizing the benefit that comes when a parent talks with their child about this major medical procedure. [1] Parental notification is the least amount of protection that a state can provide regarding the interest of safety and health of young girls. Parental notification not only protects the rights of parents to fulfill their responsibility to their daughters, it also provides protection for minor girls who can be exploited by sexual predators.

Liberty Legal Institute Files Brief to Protect Parents’ Rights

We, at Liberty Legal Institute, filed an amicus curiae (friend of the court) brief with the U.S. Supreme Court urging the Court to uphold parental notification laws regarding abortion to protect minor girls from sexual predators and to prevent the state from interfering with the rights of parents to be informed of the medical welfare of their daughters. We filed this brief on behalf of a Texas father and his daughters.

In 1995, this Texas father received a phone call from state authorities informing him that his mentally challenged daughter had been sexually assaulted and she had twice been forced to have an abortion. The first abortion took place when his daughter was 12, and the second when she was 13. Before the first abortion, his daughter was so scared and traumatized that she vomited outside of the clinic in the bushes. It is believed that the clinic grew suspicious about the second abortion, but they still performed the abortion and received payment, waiting until later to notify authorities.

You can only imagine this father’s devastation.

He was even more disturbed when he discovered that Texas had no specific law that required parental notification of at least one parent before an abortion is performed on a minor. His daughter, being mentally challenged, was in the most vulnerable position of any minor, yet there was no specific law to protect her. The lack of such a law allowed her to be repeatedly assaulted, and denied her parents the ability to protect her from such an atrocious crime.

That all changed after this father sued the abortion clinic and settled with them out of court, and then shook up the Texas Legislature by presenting his daughter’s story. Subsequently, in 1999, Texas passed a parental notification law that protects our minor daughters from abuse and prevents the state from coming between a daughter and her parents. The daughter’s perpetrator was criminally prosecuted and sentenced to approximately thirty years in prison for his crimes.

This father knows first hand the devastation that can occur when states do not require a parent to be notified of a minor’s request to have an abortion. This father also knows that his younger daughter and other young girls across the country could find themselves faced with the same type of horror, if we allow parental notification laws to be struck down across the country.

Planned Parenthood Fails to Report Sexual Abuse on Girls

In our brief, we also detailed how Planned Parenthood of Northern New England (Planned Parenthood) has no interest in the safety and protection of young girls from sexual predators. Planned Parenthood admitted that it has a "legal obligation to report instances of sexual assault" but did not report such instances. They also admitted that twelve girls under the age of sixteen each had an abortion in 2000 performed by Planned Parenthood, pregnancies which arguably resulted from illegal sexual acts on the girl by an adult man, yet they did not notify law enforcement authorities in any of these cases, nor any parent as well.

These abortion clinics have a pecuniary interest in performing such abortions, making it unlikely that they will protect young girls from child predators unless a state law mandates that parents should be notified before an abortion is performed. Based on this shocking information, it is difficult to believe that young girls and their parents can rely on abortion providers to act as a safeguard of protection from sexual predators and molesters.

Also at issue in the case was whether any law related to abortion had to have a so-called "health exception." Planned Parenthood, in their oral argument made their position clear: any law related to abortion that did not include a "health of the mother" exception would be unconstitutional.

U.S. Supreme Court Hears Oral Arguments

Because the New Hampshire parental notification law was struck down in its entirety, the pro-abortion advocates have temporarily succeeded in forcing any abortion related law to have a specifically stated health exception. This undermines any reasonable requirement before an abortion is performed, such as parental notification. However, at the Supreme Court oral argument, a majority of the court seemed uncomfortable with following the lower courts’ decisions as they searched for a way to narrow such decisions and allow most, if not all of the law to stand. Even members of the typical liberal block, such as Justice Ginsberg and the swing voting O’Connor were uncomfortable with a total rejection of such law, with Justice O’Connor stating that "[t]he statute may very well have a majority of valid applications." Justice O’Connor then asked the Planned Parenthood attorney, "[s]o how can we narrow the application (of the New Hampshire) statute?"

Chief Justice John Roberts performed admirably and showed real leadership and strength while hearing his first abortion cases. In his new role as Chief Justice, he demonstrated confidence and courage, leading the court to the heart of the issue in the parental notification case by asking "[w]hy should you be able to challenge the act as a whole if your objection is so narrowly focused?" He then reminded the pro-abortion advocate that the alleged problem with the statute is "a problem that arises only in the emergency situations" and "[t]his case does not involve an emergency situation."

The statute effectively addresses the emergency issue, but the pro-abortion advocates want to use the possibility of such an emergency to strike down any other provision that affects abortion but does not involve an emergency. This idea was expressed effectively by U.S. Solicitor General Paul D. Clement, during his oral argument in favor of the parental rights law: "What you have before you is really a case which literally a one in a thousand possibility if there is going to be an emergency where the statute will operate. And the real question for you is, faced with that kind of case, do you invalidate 1,000 applications of the statute concluding that 999 of them are constitutional?"

Health of Mother Best Protected By Parents

The pro-abortion advocates provided no evidence of a real case where an immediate abortion was necessary to preserve the "health" of the mother, and not the life of the mother, instead of waiting to first satisfy the parental notification law before having an abortion. What we made clear in our brief, though, is that heinous criminals are taking advantage of the lack of state laws that require parental notification for abortions performed on minors, sexually abusing little girls and forcing them to have abortions to conceal their crime.

Parental notification protects the rights of parents to fulfill their responsibility to their daughters and protects minor girls who could be exploited. If the Court strikes down this law, it will undoubtedly result in real harm to young girls — allowing rapists and child molesters to repeatedly abuse young girls and continue to hide their tracks.

Decisions to Come Later This Year

A decision on these two cases is expected sometime before the Court’s term ends in June. If the Supreme Court’s concerns are any indication, the parental notification case may be reversed and sent it back to the lower court to narrow the application of the statute, as the lower court’s unconstitutional finding was too broad. However, if Samuel Alito – whose confirmation hearings begin January 9th – is confirmed and the vote among the current justices on this case is close, the case could be held over and reargued next term.

If a minor is required to have in-person parental consent just to use a tanning bed, as is the law in New Hampshire, then certainly mere parental notification for a major medical procedure (abortion) is constitutionally permissible, especially given the protection such notification provides against sexual predators


[1] Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992), citing Ohio v. Akron Center For Reproductive Health et. al. 497 U.S. 502, 510-519 (1990).

Related IgnatiusInsight.com Articles:

Protect Our Daughters: Support Proposition 73 | Valerie Schmalz
Can Your Daughter Get An Abortion Without You Knowing? The Battle Over California's Proposition 73 | Valerie Schmalz
The Right Man for the Job? The Nomination of Samuel Alito | Valerie Schmalz
Some Political Issues Should Be More Important Than Others for Catholics | Mark Brumley

Jonathan M. Saenz is an Attorney for the Liberty Legal Institute in Plano, Texas, a non-profit legal organization that protect religious freedoms, student’s rights, parental rights, the definition of family, and the unborn.

He has been a featured speaker and advisor to numerous Catholic and pro-life groups. He can be reached at jsaenz@libertylegal.org.

Visit www.libertylegal.org to read a full version of the brief filed at the U.S. Supreme Court on the Ayotte v. Planned Parenthood case.

Visit the Insight Scoop Blog and read the latest posts and comments by IgnatiusInsight.com staff and readers about current events, controversies, and news in the Church!


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