New Hampshire garnered a temporary victory today after the Supreme Court sent a controversial abortion case back to a lower court to reconsider its decision. The lower court ruling struck down an entire abortion statute because it lacked an exception for nonlife threatening medical emergencies.
Dozens of states have parental-notification laws -- they have been upheld repeatedly. But New Hampshire's did not have an exception for minors facing serious health consequences. New Hampshire had argued, among other things, that there was no need for such an exception.
Retiring Justice Sandra Day O'Connor wrote a unanimous decision side-stepping the abortion issue: "We do not revisit our abortion precedents today." Instead O'Connor said the 1st Circuit Court of Appeals erroneously struck down the entire New Hampshire law.
Calling it the "most blunt remedy" to invalidate a law wholesale, O'Connor wrote that the appeals court needed to "reconsider its choice of remedy," as the Supreme Court, when "confronting a constitutional flaw in a statute ... [tries] to limit the solution to the problem." Stated another way, the lower court had thrown out the baby with the bath water, and now should revisit the issue to see if it could excise "the unconstitutional applications of a statute while leaving other applications in force."
Ruling May Be O'Connor's Last
Today's ruling by the first woman on the Supreme Court may be her last. If things go as expected with votes by the Senate Judiciary Committee and the full Senate, Judge Samuel Alito is poised to replace her in a matter of weeks. Alito could be on the bench when the court returns for oral arguments on Feb. 21.
O'Connor, of course, has been a critical swing vote on numerous hot-button issues, including abortion, affirmative action, employment law and the death penalty. Alito is an acknowledged conservative, but questions remain on how far he will push the court to the right.
Though this was the first abortion case the Supreme Court considered in five years, another controversial case is on the horizon. The court will decide shortly whether to hear challenges to a federal law that bans partial-birth abortions. Several lower courts have declared the law unconstitutional because it lacks an exception for the health of the mother.