Are judges the new doctors?

Are judges the new doctors?

Are judges the new doctors?

The law, lawyers, and the court.
Aug. 12 2005 5:56 PM

Judgment Day

Are judges the new doctors?

Illustration by Robert Neubecker.
Click image to expand.

It's widely agreed that Roe v. Wadeis no longer the real battleground in the abortion wars. Even assuming that George Bush's Supreme Court nominee John Roberts would vote to overturn Roe, another retirement would likely be necessary before there are five votes to do so. That's why the real fronts in the abortion wars remain state laws seeking to limit abortions in various ways. The Supreme Court will hear a challenge to one of those regulations—involving New Hampshire's parental notification law—this November. Challenges to the federal ban on partial-birth abortions will likely follow sometime soon.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Abortion opponents like to characterize parental notification and consent statutes as having nothing to do with abortion. These measures are offered, and enthusiastically supported by the public, as matters of parental rights. How is it possible, they ask, for parental consent to be required when a teenage girl wants to pierce her ears, but not when she seeks to abort her fetus? This seems an eminently reasonable argument, but it masks a larger agenda—these state efforts are aimed at decreasing the number of abortions, not ear-piercings. That's why the law doesn't go after aestheticians. It's hardly surprising that the real targets in the new abortion wars are the same targets we saw in the Terri Schiavo tragedy: doctors and judges. The new political object has little to do with the stated claims; it's to override any physician or judge who won't halt abortions.

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Forty-four states have parental notification or consent laws on the books requiring that a parent (sometimes both parents) either agree to, or at least be advised of, a minor's decision to have an abortion. A minor in most states is under 18. Thirty-five of these laws are currently in effect. (Nine have either been enjoined by courts or by an attorney general opinion). The Supreme Court has found, over and over, that with certain caveats, parental notification and consent statutes are constitutional. But the court also requires that parental consent statutes have a judicial bypass procedure—the option for a teen to petition a court to avoid telling her parents. It's not clear whether parental notification statutes must also include such a bypass provision. Some basic requirements of a bypass were laid out in Belotti v. Baird in 1979: The minor should be sufficiently mature and well-informed to make the decision herself, or that decision should be in her best interests.

Ayotte v. Planned Parenthood, the case before the court this year, turns on a crucial question about the standard courts will use to invalidate such laws. The narrower issue in Ayotte, however, is whether the New Hampshire law, requiring doctors to notify one parent at least 48 hours before performing an abortion, must contain an exception for the health—and not just the life—of pregnant minors. A doctor who feels that his patient's health is in peril must wait the statutory period until after parental notification—unless he can find a judge to agree. New Hampshire's is one of three parental notification laws without a health exception.

Parental notification statutes are widely popular, I know, but let's put to rest the myth that they exist solely to promote robust and healthy communication about family choices. For one thing, as abortion rights groups argue, you cannot legislate healthy communication; all you can legislate is snitching. Good data show that the majority of pregnant teens actually do tell their parents when they are considering an abortion, so parental notification and consent laws single out many of those teens with a really compelling reason not to disclose their condition—like incest or abuse. A teen who knows she will be thrown out when her parents learn of her condition is precisely the kid who should not be forced to communicate that fact.

But the best evidence that these laws are not really about promoting open family discussion is that most of the time in most states, parents have no legal entitlement to know when their child gets pregnant. Physicians are not mandated to report when a minor chooses to become sexually active, to use contraceptives, or even to carry a baby to term and keep it. If all big childbearing decisions need a parental OK, why are these decisions deemed private? Parental consent rules assume that teens need a parent's medical, emotional, and financial support to terminate a pregnancy but apparently not to bear a child.

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The difference, of course, is that abortion is seen as killing a baby—a far more consequential decision than raising one. And, once you accept this premise, it's easy to see why the parental notification and partial-birth abortion statutes have become a war on any doctors and judges who choose to enable young women to terminate a pregnancy. Doctors or judges charged with using their professional judgment to help a teen make a tough decision are really acceptable to the political right only if the ultimate decision is to keep the child. These laws "work" only when these experts say no.

The reason social conservatives seek to have no exception to New Hampshire's parental notification statute for situations in which there is a risk to the health of the mother is straightforward: They don't trust doctors. This was the fight at the heart of the partial-birth abortion dispute in the 2000 case of Stenberg v. Carhart, decided by a familiar 5-4 margin. The fear in both contexts is that a health exception in the hands of sympathetic physicians puts no real meaningful limit on abortion; doctors will always be able to invent bogus health exemptions. And so, as Clarence Thomas pointed out in his Stenberg dissent: "A health exception requirement ... imposes unfettered abortion-on-demand. The exception entirely swallows the rule.''

So appalling is the notion that a doctor might have the power to second-guess the law in a health emergency that the subsequent, post-Stenberg version of the federal partial-birth abortion ban still contains no health exception. In the view of anti-abortion advocates, doctors have too many financial and political incentives to thwart the law, and, as a consequence, their discretion must be cut back to nothing.

Having assailed the professional judgment of physicians for years, social conservatives are now, not surprisingly, turning on the judges who oversee bypass requests. Where doctors were dismissed as mere rubber-stampers, judges are now labeled as the same. The same conservatives who promoted and passed parental consent laws are now arguing that the judicial bypass loophole eviscerates the whole rule. That's right, the new problem with abortion isn't just with the craven ideological doctors who justify the procedures, but with the soulless ideological judges who rubber-stamp them.

Put aside, if you can, the wisdom and utility of parental consent laws. Even if we agree that they are a good idea, can it possibly be true that they work only when the relief sought is denied? Isn't that the core complaint against Alberto Gonzales, and why Priscilla Owen is the darling of the far right? That in the end one voted to grant a bypass while the other did not? Where we once mistrusted only the young women who make decisions about their bodies, we now distrust the physicians and judges empowered to help them as well.

This strategy, of viciously attacking every judge—including Alberto Gonzales—who has ever permitted a bypass, and every physician who fails to notify a parent for health reasons, is not a smart one. It's exactly the same callow strategy that failed so miserably in the last days of the Terri Schiavo controversy: Social conservatives attacked and second-guessed the physicians who had been treating Schiavo for years. And when that failed, they attacked and threatened the judges who refused to read the law in a way that achieved their ends. The unseemliness of these attacks was repellant to Americans across the political spectrum. Because for the most part, we accept that medical and legal professionals are paid to exercise their judgment, not to toe a line.

Louder and meaner attacks on doctors or judges will not ultimately make bad laws better, they will merely reveal the crabbed and cynical ends those laws sought to achieve.