In case you've missed it, Slate Con-Law correspondent Dahlia Lithwick, a Stanford law grad and student of Kathleen Sullivan, the former dean, is one of the most perceptive and cleverly articulate law writers around.
Check out her column on the argument in Ayotte v. Planned Parenthood of New Hampshire yesterday where the state statute under attack as unconstitutional under Roe/Casey fails to provide an exception to the parental notification provision in cases where the health of the mother is at risk. The argument comes down to the idea that before the abortion procedure must proceed absent such notification, the doctor must call a judge and ask permission, even at 2:00 a.m. on a Saturday night where the teenager who requests the abortion may lose her ability to reproduce unless the procedure is performed right now.
[It's hard for me to understand what a judge is going to add to informed basis of the decision-making that the doctor hasn't already considered, otherwise she wouldn't have got the judge out of bed to answer the telephone, but that's just me again.]
Justice Kennedy seemed to think this was important however, to "save the statute" from constitutional attack, but counsel for Planned Parenthood said she thought it more important to save the teenager, causing reporter Lithwick to wonder, tongue firmly in cheek I presume, what "hippie-dippy kum-ba-yah law school she attended."
Under Roe-Casey (seemingly reinforced by Stenberg v. Carhart, the "partial-birth abortion" case, which declared unconstitutional a statute that failed to provide for a regulatory exception to protect the life of the mother) a state statute regulating the right to abortion MUST provide unrestricted access to save the life of the mother. Ayotte deals iwth a statute that fails to provide an exception to protect the health of the mother, which one might think has something important to do with her life, but there I go again. I guess she has to be at death's door otherwise she's forced to have the baby. Or she calls her parents, who may want to kill her... Or speak to a judge who'll really have a lot to contribute, and if not, then why bother calling? I suppose every local court system in the land could have a duty judge, the way some jurisdictions have a "duty judge" designated to set bail or sign EPOs (emergency protective orders) 24/7 unless busy in trial, in which case, wait until the end of the day or the next recess, whichever comes first.
Have you ever tried to get a judge to make a decision on something important on short notice, especially in something sensitive that might have an impact on his/her future career such as teenage abortion without parental notification? With the country split on whether this right should exist? Judges such as Roberts and Alito are likely to say no, and then what is the doctor, and more importantly, the teenage supposed to do? "Go home, little girl, we can't help you?" Why am I thinking 'government paternalism' all of a sudden? Did the youngster ask her father if it was okay to have sex? Presuming that he isn't the father? Then why send her back to get his okay to get the abortion? Somehow I see a disconnect between high-court doctrine and the way life is lived on the ground in the big city often enough, and, no doubt, a few farms, if we still have family farms, not that anyone living on a farm would ever need an abortion, that is.
Con-Law itself sometimes seems to pass rational basis, but that's not what you're tested on, is it.