A Waiting Period on Abortion
If you choose not to decide, you still have made a choice.

The Wall Street Journal, Monday, January 23, 2006

The astonishing thing about Justice Sandra Day O'Connor's opinion in Ayotte v. Planned Parenthood--last week's case involving New Hampshire's Parental Notification Prior to Abortion Act--is that it was for a unanimous court. This is the first time in the 33-year history of Supreme Court abortion jurisprudence that the court has decided a case by a 9-0 vote. That unanimity is the key to understanding Ayotte's significance, which is political more than legal.

The court vacated a ruling of the First U.S. Circuit Court of Appeals that had overturned the statute on the ground that in some cases it imposed an "undue burden" on a girl seeking an abortion, which is unconstitutional under the 1992 Planned Parenthood v. Casey precedent. The justices sent the case back to the lower court with the instruction that it issue "either an injunction prohibiting [only] unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto." Whatever the First Circuit does, it is likely to be appealed, so the case stands a good chance of ending up before the high court again.

If the court does rule on the statute again, it is sure to be divided. In the Casey case, Justice John Paul Stevens disagreed with the majority's rationale for upholding a parental consent statute. Justices Ruth Bader Ginsburg and Stephen Breyer have indicated that their approach to the question is similar to Justice Stevens's. On the other side, Justices Antonin Scalia and Clarence Thomas argued in Casey that there is no constitutional protection for abortion.

Under normal circumstances, all these justices probably would have filed or joined separate concurring or dissenting opinions in Ayotte expressing or reiterating their views. Instead, they silently joined Justice O'Connor's decision, which they were able to do because she stipulated at the outset that "we do not revisit our abortion precedents today." The justices agreed to disagree, and found common ground by reaching the narrowest possible conclusion. They also did it very quickly, deciding the case just seven weeks after it was argued, and in time to dispose of it--at least for now--before Samuel Alito takes his seat.

Why would the court do this? Probably for institutional reasons--to insulate itself from politics. The court currently is in flux: It has a new chief justice; it is about to get a new associate justice; and another vacancy or two--with the attendant political battle--is a distinct possibility in the next few years. For the court's sake, it is better to leave any consideration or reconsideration of the constitutionality of abortion for a time of greater stability in the court's personnel.

Consider what might have happened if the initial vote on whether to uphold the New Hampshire law was 5-4, with Justice O'Connor in the majority (on either side). If the court had dealt with the case at its usual pace, it would not have been decided before Judge Alito's confirmation, which means the case would be reheard, and Justice Alito would cast the deciding vote.

That in itself is unproblematic, but in the normal course of things, Justices Scalia and Thomas would write separate opinions, either concurrences or dissents, restating their view that Roe v. Wade should be overturned. Suppose further that Justice Alito and Chief Justice John Roberts agreed with Justices Scalia and Thomas. Then there would be four justices on record for overturning Roe.

This would drastically raise the stakes if Justice Stevens or Justice Ginsburg were to retire. There has never been a Supreme Court vacancy at a time when the court was split 4-4 between justices on record supporting Roe and those favoring its invalidation--though there was reason to suspect the court was evenly divided in 1987, when President Reagan unsuccessfully nominated Robert Bork. Justice Scalia had not yet taken a position, but his views were easy to guess. Justice O'Connor, although she had refrained from either endorsing or opposing Roe explicitly, had voted with dissenters William Rehnquist and Byron White in cases involving abortion regulation and thus was easily mistaken for a Roe foe. Considering the ugliness of the Bork battle and the bitterness that lingers nearly two decades later, the court did itself and the country a service by avoiding this divisive matter for now.

In addition, if one assumes that both Chief Justice Roberts and Judge Alito are inclined to overturn Roe, there are good strategic reasons why both anti- and pro-Roe justices would not want them to say so immediately. The anti-Roe side does not have enough votes to prevail, even with the new justices; whereas the pro-Roe side may hold out hope of persuading one or both of them, which would be much harder to do once they have gone on the record. Only Chief Justice Warren Burger has ever switched sides on Roe after publicly taking a position, and he retired less than two months later.

Ayotte is reminiscent of Bush v. Palm Beach County Canvassing Board, the first 2000 election case, in which the justices unanimously vacated a ruling of the Florida Supreme Court that was designed to manufacture votes for Al Gore, and instructed the state court to find an equitable solution to the election dispute. Everyone remembers what happened eight days later, when a sharply divided Supreme Court, in Bush v. Gore, effectively decided the election in George W. Bush's favor. The court paid an institutional price for doing so. But in Bush v. Palm Beach, the justices were united in an attempt to avoid this eventuality by giving Florida's high court a chance to resolve the matter.

Unlike in the election cases, the Supreme Court is not racing the clock to resolve the abortion question. Most likely, sometime in the next decade the court will either overturn or reaffirm Roe. If President Bush gets to replace another pro-Roe justice or two, or a Republican is elected president in 2008, Roe will probably be history. Otherwise, it will be with us for another generation. In either case, politics will determine the outcome of what should have been a political matter all along, but the political battles over the next court appointees may be less bloody than if Chief Justice Roberts and Justice Alito took a position now.

As a matter of law, Ayotte itself is no more than a historical footnote. But if it helps to bring about a civilized resolution of an issue that has roiled American politics for decades, it will deserve to be remembered as a great act of judicial statesmanship.

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