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U.S. Supreme Court Hears First Abortion Cases in Five Years | Jonathan M.
Saenz, Attorney, Liberty Legal Institute
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 courts 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.  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 fathers 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
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 daughters 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 daughters
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 minors 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 OConnor were
uncomfortable with a total rejection of such law, with Justice OConnor
stating that "[t]he statute may very well have a majority of valid
applications." Justice OConnor then asked the Planned Parenthood
attorney, "[s]o how can we narrow the application (of the New Hampshire)
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 Courts
term ends in June. If the Supreme Courts 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 courts
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
 Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992), citing
Ohio v. Akron Center For Reproductive Health et. al. 497 U.S. 502,
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M. Saenz is an Attorney for the Liberty Legal Institute in Plano, Texas,
a non-profit legal organization that protect religious freedoms, students
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 firstname.lastname@example.org.
to read a full version of the brief filed at the U.S. Supreme Court on the
Ayotte v. Planned Parenthood case.
the Insight Scoop Blog and read the latest posts and comments by
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