Interview: Cathy Ruse of the Family Research Council on High Court Abortion Notification Case

On Wednesday, the Supreme Court heard arguments on a parental notification law in New Hampshire, which is considered controversial because it lacks a medical exception for the woman’s health.

Ever since the 1973 Roe v. Wade decision that legalized abortion throughout the country, the Supreme Court has consistently adhered to a standard of review for laws restricting abortion, which requires that they be accompanied by a medical exception to protect the health of the mother.

A judicial principle known as a “facial challenge,” has been used by the courts to review abortion laws. If on its face, a law lacks certain requirements, such as the health exception, it is ruled unconstitutional and struck down. The challenge prevents the law from ever being enforced.

Critics say that the definition of health in the exception is much too broad, allowing for emotional and psychological reasons to be considered, along with physical conditions.

The Justices hearing arguments in the Ayotte v. Planned Parenthood of New England case on Wednesday asked lawyers about how the law applied in both life threatening situations and in situations where there were serious health concerns if the abortions were not carried out.

The case involved the state of New Hampshire which passed the law and Planned Parenthood, an abortion provider, which successfully sued the state to declare the notification law unconstitutional because of the lack of a medical exception.

Among the options available to the Justices are that they may choose to keep the entire law or strike it down based on the question of the exception.

It could also send the case back to a lower court so that the focus of the case narrows to the "adequacy or inadequacy," as Chief Justice John Roberts put it, of the judicial bypass provision which lets a minor sidestep parental notification and obtain an abortion through a judge's order. The court will issue its ruling at a later date.

Cathy Cleaver Ruse, a Senior Fellow for Legal Studies at the Family Research Council, attended the court hearing. Following arguments, she had the opportunity to speak with The Christian Post about her reaction and what it could mean for future abortion laws. The following are excerpts from her comments.

What is your analysis of the case? What do you think went through the Justices’ minds based on the questions they asked?

They seemed concerned that what Planned Parenthood was asking was for the entire statute to be struck down based on a hypothetical situation that they have not yet proven.

It is very exciting from my perspective to see, what appears to be a majority ... [except] perhaps [Justice Stephen] Breyer, say that abortion laws, democratically enacted laws should stay on the books rather than be obliterated as soon as Planned Parenthood goes to court, which has been their practice for the past 20 years.

So they’ll stay on the books and allow individual challenges to be made, with real circumstances where Planned Parenthood will be willing to prove their case rather than throw in a hypothetical and knock down the statute.

That is a casual way of saying, maybe they are reconsidering changing the facial challenge rule that they have been applying to abortion law.

That’s a bigger issue than whether there should be a health exception in New Hampshire, [although] that’s important.

So regarding the types of questions that they were asking, except for one Justice, they seemed to be leaning in that direction?

They seemed to be willing to go in a direction of allowing the abortion laws to be there, while they’re being challenged as applied to the different circumstances. That would be a very important development. That would bring abortion law, back into line with the rest of the way the law is treated.

It allows abortion protection for teens, protection for women and protection for unborn children to exist in the law and be challenged that the law would stay. So I think that’s potentially a very positive thing that’s going to come out of it.

Under what circumstances would that facial challenge be necessary and useful?

The only place where a facial challenge is typically used is for First Amendment challenges. There you want the statute to be knocked down if it’s for freedom of speech because if speech is not allowed, the whole premise of being able to argue in a democracy is interrupted.

There’s one exception in the law and that’s a First Amendment Case. But abortion is not a First Amendment case. Abortion is an act that can be regulated by state and federal law. First Amendment laws shouldn’t apply here.

So in other words the ACLU and Planned Parenthood should always, in my opinion, have to prove their claims in court, rather than throwing in hypotheticals … [t]hey haven’t been able to do that.

The way they’ve been getting through it is a free ride. The deck has been stacked against the pro-life movement for 20 years. If the court changes direction here, then there will be a much more level playing field and that would be very important.

Is there anything else there that you’d like to focus on that you didn’t in earlier comments.

To the extent that the judges talked about a potential health risk. If there is a potential health risk, that is even more of a reason for parents to be involved. Nobody wants a teenage girl to undergo surgery, experience a potential health risk when their parents aren’t involved.

The New Hampshire law provides a bypass provision in the rare case where there may be an abusive parent. But by and large, the law understands that parents have the best interests of their child at heart.

The law understands that a child has a diminished capacity to make a fair judgment in very important instances. Certainly [ones] involving medical action.

And that’s why we have to keep parents involved and not allow secret abortions by keeping parents out of this very important time in a child’s life. These laws are very beneficial for teens. They protect teens against exploitation and that’s why most states have passed laws like this.

I hope that the results of today won’t be that New Hampshire’s law and the rest of the laws in the states are overruled. I’m much more hopeful that the laws will be allowed to stand after today.

There may be some who are on the fence about the medical exception. They may say that the extra protection is needed. The New Hampshire law itself states that there is emergency protection there. That’s enough right?

The bypass provision was specifically designed to address a situation where for whatever reason a parent can’t be called or there’s a medical emergency, so then you can get a judgment very quickly and the judge can approve the abortion without the parent’s notice. That’s precisely what the judicial bypass provision is for.

What Planned Parenthood is trying to do, is basically insert a so-called health exception that is so broad that it would basically eliminate the enforcement of these laws altogether because the very broad health exception includes psychological issues, emotional issues, the woman’s age.

If all of these things are a rubber stamp for secret abortions without a parent’s involvement then parents would never be involved because there are always emotions involved. There are always potential psychological issues involved.

Parents need to be involved when all these issues are at play. So that’s why Planned Parenthood wants to obstruct what the purpose of the law really is.