Tell It To the Judge

Karen Pearl, Louise Melling
November 30, 2005

Imagine a loved one facing a medical emergency. Where would you take her?

If the Bush administration has its way, and the person in your life facing an emergency happens to be your pregnant daughter, girlfriend, sister, or partner, and she needs an emergency abortion, you might end up racing to a courthouse to find her a judge instead of racing to a hospital to find her a doctor.

On Monday, the administration weighed in on the question of women's health and abortion with a friend-of-the-court brief in Ayotte v. Planned Parenthood of Northern New England. The case centers on a 2003 New Hampshire law that prevents doctors from performing an abortion for a young woman under the age of 18 until 48 hours after a parent has been notified. Contrary to Supreme Court precedent, the law contains no exception for circumstances in which the delay would seriously threaten a young woman's health.  Two lower courts struck down this law precisely because of this omission.

Enter the Bush administration. At a pivotal moment in the Supreme Court's history, the solicitor general intervenes with a call to unravel years of legal protection for women's health. A decision in Ayotte could reach far beyond harm to teens in New Hampshire. A ruling by the Supreme Court in this case could significantly change the legal landscape for all abortion restrictions, leaving lawmakers free to enact laws that disregard women's health, and leaving women and their doctors with few avenues to block these laws before they cause real damage.

For example, a pregnant woman who develops an infection in the uterus is at risk of serious complications, including future infertility. If left untreated, the infection can spread throughout the body and severely endanger her health.

Under the existing legal framework, women and their doctors can stop laws like New Hampshire's from taking effect before they face an emergency and any harm is done. This is the world we have lived in for the past three decades. 

In its brief, the government poses a different approach. It acknowledges the possibility that pregnant women may face health-threatening emergencies for which they need abortions. Yet the government would have these young women find a judge to waive a waiting period requirement or other abortion restriction before they can get the medical care they need.

Women in medical emergencies forced to seek out judges instead of doctors: Does this sound like an administration that values women's health and lives? Is this the kind of world you want your daughters, sisters, mothers or wives to live in?

Although this case may not result in a ruling that reads "Roe overturned," it may signal the day when Roe has been so eviscerated that even women facing serious medical emergencies will be forced to put their care on hold while they try to find a judge who will be sympathetic to their plight. Come November, the Supreme Court will have to consider the degree to which the law must protect women's health. Let's hope that the justices understand that preserving women's fundamental right to access medical care is nonnegotiable.


Louise Melling is the director of the ACLU Reproductive Freedom Project and Karen Pearl is the interim president of the Planned Parenthood Federation of America.


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