Abortion Hot Button Alert!

Count me as one of the many Americans that would just like the debate over abortion to go away. The public policy arguments have been bantered back and forth so many times that the original positions of each side seem to have been lost in a hazy thundercloud of anger and misunderstanding. Of course it's hard to live and let live when the Supreme Court agrees to hear yet another abortion case...right before the imminent departure of its Chief Justice. (reaaaaallll smart)

The latest case stems from a New Hampshire parental notification law that, according to the press, "includes an exception for life-threatening medical issues, but not for more routine problems." While that description is (as usual) not very helpful, it is not the focus I find most interesting. What I find most fascinating was the comment of an ACLU lawyer as to what is the crucial constitutional issue in the case.

"The main question in this case is how many women facing medical emergencies have to have their abortions delayed and health put at risk before the court holds a law unconstitutional," said Jennifer Dalven, the deputy director of the ACLU Reproductive Freedom Project.

Really? Not under any constitutional law book I've ever read. Casey held that the standard is whether the regulation undertaken by the state constitutes an "undue burden" for a woman seeking an abortion. While other state regulations have been struck down because they required consent from a potentially abusive parent or spouse (a stereotype I find rather troubling), generally parental notification laws have been upheld. As a result, the real question would be whether the absence of an exception for "routine problems" would constitute an undue burden as it relates to notifying the parent.

I'll be interested in how the Supreme Court irons this one out, but it appears to me that a simple call from a doctor attending to the "routine problem" would not constitute much of an undue burden.

Ultimately, its rarely the public policy arguments that disturb me in hot button issues like abortion but rather the mischaracterization of constitutional law that disfigures the state of the law.