While much of the nation’s legal attention is focused on the Supreme Court’s pending partial-birth abortion case, lower courts continue to use any excuse at hand, no matter how far-fetched, to strike down even the mildest restrictions on abortion.
These courts act as if sophistry in support of abortion is no vice.
The latest example occurred earlier this month, when a panel of the U.S. Sixth Circuit Court of Appeals ruled in Cincinnati Women’s Services v. Taft that the state of Ohio had no right to limit the number of petitions a minor can file to ask for judicial approval for an abortion without informing her parents.
Earlier Supreme Court cases have made clear that state laws requiring parental notification for a minor’s abortion must allow the minor to secure an abortion anyway, without telling her parents, under certain conditions. Usually, the minor can bypass parental notification if she convinces a judge that she is mature enough to make the decision on her own or if the judge determines the abortion is somehow in her best interest.
In 1998, Ohio passed a law regulating abortions, but the Cincinnati Women’s Services group quickly challenged several provisions in court. Most of their challenges failed. But, while a federal district court ruled that it is indeed acceptable for Ohio to allow a minor only one petition for judicial bypass of parental consent, the 6th Circuit overruled.
One reasonable goal of the “one petition” rule was to disallow “forum shopping,” which is the practice of bombarding the courts with petitions until the petitioner finally finds a judge who will rule in her favor.
The main reason for any parental consent law is to protect a minor from her own immature judgment without benefit of parental counsel. The petition limit represents the people’s way of keeping the state, through its judiciary, from unduly interfering with the sanctity of parent-child relationships.
In its 6th Circuit brief, the state noted that one of CWS’ own witnesses “admitted [that] a teenager who develops a serious medical problem ordinarily must obtain parental consent for any treatment for that medical problem.” It is only for abortions that the courts have overridden this rule.
In support of allowing multiple petitions, CWS argued that the hypothetical minor’s circumstances might change after the first petition is denied. Perhaps she might (as if by magic) mature sufficiently in the weeks between petitions to satisfy a judge, or perhaps a fetal abnormality might be discovered in the meantime.
The former argument is, frankly, specious. Minors don’t just mature, intellectually, overnight. The latter argument is conceivable, but ignores the Ohio legislature’s entire point, which is to protect the principle of consultation between parent and child — which would seem especially desirable in the morally and medically complex case of fetal abnormality.
Nevertheless, CWS argued that Supreme Court precedent in Planned Parenthood v. Casey (1992) forbids states from erecting a “substantial obstacle” against abortions for a “large fraction” of the women or minor females affected by the law. It then performed some jujitsu against logic and language by redefining the class of such women and minor females until it was so small that even one or two cases of “substantial obstacles” would be considered a “large fraction.”
The plaintiffs argued in effect that the only class to be considered as minor females affected by the law consists of those who were denied judicial bypass, and still failed to tell their parents, and experienced changed circumstances, and desired to file another petition for an abortion without telling their parents.
They thus self-define the entire class of minor females “affected” by the law as being only those who wish especially fervently to escape the law. Ohio’s lawyers justifiably described that definition as “circular reasoning.” Even a circuit judge who concurred in his colleagues’ decision poked fun at their reasoning, saying it involved “meta-mathematical niceties” which were of “questionable assistance in resolving the issue presented in this case.”
Nevertheless, without bothering to refute in detail the extensive analysis on that point offered by the Ohio’s lawyers, the panel’s other two judges blithely accepted CWS’ contention that CWS’ self-defined, hypothetical “class” of unfairly burdened women and minors did amount to a “substantial fraction” of those whom the law might affect.
Having done verbal and mathematical back flips to call the law unduly burdensome — and thus unconstitutional — the 6th Circuit has driven a wedge even more deeply between parents and children, and another wedge between logic and the law.
It is not yet clear what legal tack the state of Ohio will take next, but this case probably has not seen its final courtroom. The state’s right to appeal has not yet been aborted.
Examiner columnist Quin Hillyer is a senior editor of The American Spectator magazine.
