Yesterday, a news story appeared about the striking down of an abortion-related law in The law, the Parental Notice of Abortion Act, has had a long history in the courts.  As soon as it was passed in 1984, it was challenged in court, and enjoined.  Challenges to the injunction and defenses of it have proceeded a pace over the years.  Last Friday, a federal district court judge refused to vacate the injunction, claiming the law does not give a minor the Constitutionally-required option for by-passing the statute. 

           This is an odd case, particularly after the Supreme Court’s opinion last year in Gonsales v. Carhart.  In that case, the Court recognized a “significant” state interest in protecting unborn human life, which it said had been ignored in Supreme Court jurisprudence in the years following 1992’s Casey v. Planned Parenthood.  The question in the Gonsales case focused upon the Congressionally-passed ban on partial-birth abortion, but since the case was a 5-to-4 opinion, authored by Anthony Kennedy, everyone recognized it had significance beyond the narrow issue there involved.  How would the Court decide future cases?  What kind of issues fell within the significant state interest?

            A significant aspect of Gonsales was that it concerned a “facial,” or pre-enforcement, challenge to the statute.  The Supreme Court held that given the state’s significant interest in unborn human life, there was no reason to distort the normal requirement of an as-applied challenge.  In other words, the entire statute would not be enjoined because there was an allegation that one part might be unconstitutional.  If particular provisions raised problems, they would form the basis of suits challenging the constitutionality of those provisions.  Thus, the decision by the federal court in to stop the entire parental notice statue from going into effect seems ill-conceived.  No doubt the facts in the particular case are complicated, but it hardly seems to align with the principles of Gonsales.   

           The case puts one in mind of another recent Supreme Court case, Ayotte v. Planned Parenthood.   At issue in that case was the same question as in the case: may a state provide that, regarding an unemancipated (or unmarried) minor girl living at home, parental notice was required.  (Note well that this did not require parental consent before an abortion could take place.  Parental notice simply ensures that the parents are involved in the girl’s decision; it is still hers to make.)  The Court eventually remanded the case for further proceedings.  I suggest it would be hard for most Americans to be convinced, in that case or this one, that the Constitution requires that a minor girl should be free to get an abortion without her parents even being advised of it beforehand, particularly where, as in the Illinois case, the statute provides for exceptions for emergencies or where an adult family member is allegedly the father, and, further, provides for judicial by-pass where the court in question judges it in the girl’s best interests.  In fact, in my opinion, such statutes will easily survive Supreme Court scrutiny in the future.

            I think most Americans see decisions like the one in as evidence of judicial imperialism.  That is, they see the decision for what it is – judges taking out of the hands of the people the right to decide difficult, disputed social issues.  Doing so is judicial usurpation of the legislative function.  While the most pressing, socially disruptive contemporary example is the judicially-created “right to abortion” in Doe v. Bolton and Roe v. Wade, it is not the only example.  In fact, perhaps the most infamous example of all was the Supreme Court’s decision in the Dred Scott case, mandating that slaves be treated as property in the free states of the Few today would say the Constitution mandated any such outcome, as they will one day say the same for Roe and Doe.  This week was the anniversary of the Dred Scott decision, reminding us of the perils of judicial usurpation.

           Democracy is a difficult, trying business.  But it is a form of government built upon the recognition of the equality of all human beings, and, thus, their right to participate in government.  Democracy is not without faults, and it can fail.  Today, in fact, marked the anniversary of one of its spectacular failures - Hitler’s election in However, democracy - or, rather, a republican form of government – is ’s system of government.  It is government of checks and balances, and limited powers.  It is a system in which the courts have a modest role.  It is one in which the people, through their elected representatives, settle the tough questions.  If the people of decide that a minor girl living at home must notify her parents before she has an abortion, no federal court has the right to make a substantive decision to the contrary.  Yet, the effect of Roe and Doe is that this is precisely what federal courts do every day regarding abortion.  Hopefully, Gonsales means such days are numbered.