Dalven says there is no way to reach a judge in Breyer's hypothetical Saturday morning situation. Kennedy seems unmoved. He says, signaling clearly where he is going in this case, "The judicial bypass provision can go a long way toward saving the statute." Adds Scalia (click here to listen): "Assume New Hampshire sets up a special office, 24 hours a day, any time anywhere, with an 'abortion judge'." Would that solve for these health emergencies? If there's no time to put in such a call, he quips, the doctor wouldn't have time to put on his surgical gloves, either.
Dalven wonders what purpose there is in requiring a perfunctory phone call to a judge in which there is no time to ask or answer questions. "The purpose," answers Kennedy, "is saving the statute."
"Saving a statute is not worth putting a teenager's health at risk," retorts Dalven, raising questions about what hippie-dippy kum-ba-ya law school she attended. What good is a statute, the New Hampshire legislature might ask, that doesn't panic teenagers and abortion doctors every single day?
The justices keep asking Dalven to "focus" today, as though she were herself some addled teen on Ritalin. O'Connor wants to see New Hampshire's statute narrowed to include a health exception but not struck down altogether. For some reason, she thinks this is Dalven's responsibility, asking her to narrow the statute to resolve the health problem. (Click here to listen.) Dalven can't bring herself to say that the law is invalid on its face because O'Connor took that position in Casey. So Ginsburg does it for her: "Why is it not OK to say the whole statute is unconstitutional when it fails to accommodate immediate threats to the mother's health?" she asks.
O'Connor and Kennedy aren't satisfied. Dalven's best response is that the court shouldn't let states write patently unconstitutional laws, then figure out ways to rewrite them constitutionally. "You would eliminate any incentive for legislatures to write constitutional laws," she says. For years the courts have required health exceptions; why should New Hampshire be allowed to ignore that and leave it for women and doctors to go to court? Stevens asked why New Hampshire never tried to fix their law when it was invalidated in the lower courts. Sighs Dalven: "They could have just enacted a law with a health exception and we could have all gone home."
Just to be clear about what's happening today: No one is talking about reversing Roe v. Wade. But I can't count five people willing to apply the holding in Casey to these facts either. Instead most of the court is doing constitutional loop-the-loops to try to save the New Hampshire law, even though they are almost all bothered by the lack of a health exception. Mostly they try to graft a health exception back on, whether or not the New Hampshire legislators wished to have one. The larger point is that New Hampshire nipped and tucked the so-called right to an abortion when it passed this law, and most of the court thinks that is just fine.
This morning we learned that soon-to-be Justice Samuel Alito embraced this nip-tuck strategy years ago. No need to wait for Roe to be overturned. Just eat away at it, one small nibble at a time.