Thursday, December 01, 2005

Whatcha Got, Ayotte?

What a fun dilemma the Supreme Court is facing!

After listening to the oral arguments of the Ayotte case (kudos to CSPAN for getting the Court to agree for only the third time in history to release the audiotape the day after the hearing!), it appears that:

- A majority of the court agrees that the New Hampshire parental notification statute is unconstitutional as applied to medical emergencies, since it lacks a health exception.

- The Court is torn on how to remedy the problem.

The statute has a severability clause, but as the justices pointed out, you can't sever something that ISN'T THERE. Which leaves them with two options:

- They could give Planned Parenthood the relief requested and COMPLETELY strike down the statute; or...

- They could, in issuing a ruling more favorable to the state, legislate from the bench by either ordering the legislature to write in a health exception against the legislature's will or declaring the statute unconstitutional as applied to health emergencies, again by default rewriting the statute in a way the legislature clearly did not intend.

In other words, to give the anti-choice side even a partial victory (i.e., not a complete loss), they would have to engage in *gasp* judicial activism!

I'm loving it. Your choice, you foes of choice, is this: accept complete defeat, or walk away with only a partial defeat and your victory only coming through self-acknowledged judicial activism.

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