On Nov. 30, the U.S. Supreme Court will consider a challenge to a New Hampshire law that could significantly affect abortion rights, a Duke University law professor says.
"The question in this case isn't whether Roe v. Wade is going to be overturned, but whether it is going to be severely undermined. Call it 'death by a thousand cuts,'" said Neil Siegel, a professor of law and political science at Duke and a former Supreme Court clerk.
In Ayotte v. Planned Parenthood of Northern New England, the Court will consider, among other things, how courts should analyze abortion restrictions and whether a restriction that has no exception for risks to the life or health of the mother can ever be constitutional.
In its 1987 decision in United States v. Salerno, the Supreme Court said that, in general, a law should be completely invalidated only if there is no set of circumstances in which it can be constitutionally applied. This makes it very difficult to strike down statutes.
But in abortion cases, the Court in recent years has taken a different approach. It has said that a law regulating abortion should be declared unconstitutional if it creates an "undue burden" on a woman's access to abortion. "The difference is enormous in terms of whether laws regulating abortion will be upheld or struck down," Siegel said.
The "undue burden" standard was adopted by the Court in the 1992 case of Planned Parenthood v. Casey, in a plurality opinion co-authored by retiring Justice Sandra Day O'Connor, Justice Anthony Kennedy and Justice David Souter. The "Casey" standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which the Casey plurality defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," Siegel explained.
In the Ayotte case, the Court is being asked to adopt the more stringent "Salerno" standard, which has never before been applied to abortion.
"Adoption of the 'Salerno' standard would have hugely important implications for the right to abortion," Siegel said. "You could not feasibly challenge an abortion restriction that lacked an exception for the life and health of the mother ahead of time, as you can now. Instead, you would have to wait until an individual woman wanted to challenge the law as it applied to her -- which could involve an actual emergency, when her life or health was in danger. By then, it would already be too late. So this is one way in which the Court could start restricting abortion rights through doctrinal maneuvers that would undermine, though not overrule, Roe and Casey."
A new justice could make a decisive difference, Siegel noted.
"I doubt that Chief Justice Roberts will be different from the late Chief Justice Rehnquist on this issue, and I think Justice Kennedy will be inclined to approve many restrictions on abortion. So the question may end up being what Justice O'Connor's replacement will do. If Judge Alito is confirmed, there will be no mystery here waiting to be revealed."