# Another anti-abortion measure overturned due to lack of provision for health of woman **URL:** \ **Category:** Great Debates\ **Created:** [January 18, 2006, 7:29pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543 "2006-01-18T19:29:46Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![An\_Arky](https://avatars.discourse-cdn.com/v4/letter/a/87869e/32.png) [@An\_Arky](https://boards.straightdope.com/u/An_Arky)\ **Post date:** [January 18, 2006, 7:29pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/1 "2006-01-18T19:29:46Z")
I just heard the [news](http://news.yahoo.com/s/ap/20060118/ap_on_go_su_co/scotus_abortion;_ylt=AtquXXNxWF3Ij1uQKguI8KCs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--) that once again, an anti-abortion/parental notification law has been struck down by SCOTUS because there was no provision for when the woman’s life is in danger, etc. What’s up with this happening over and over? Aren’t legislators supposed to be, like, professional and make sure the I’s are dotted, the T’s are crossed, and that, oh, I don’t know, the freaking law would stand up to SCOTUS scrutiny? I’m trying to wrap my mind around the fact that these highly paid (often legal professionals) people get in a room to draft legislation, and it occurs to NOONE in this brain trust that you have to have a provision for when the woman’s life is in danger, at the very least, and maybe to allow for victims of rape and incest? Do they not care (my guess)? Do they think they’re going to sneak one past the Supreme Court? WTF? ---
**Author:** ![An\_Arky](https://avatars.discourse-cdn.com/v4/letter/a/87869e/32.png) [@An\_Arky](https://boards.straightdope.com/u/An_Arky)\ **Post date:** [January 18, 2006, 8:04pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/2 "2006-01-18T20:04:55Z")
I just realized this OP may be more suited to IMHO or GD, since there might not actually be a factual answer. Sorry! :smack: ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 18, 2006, 8:12pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/3 "2006-01-18T20:12:27Z")
While I am not inside the head of any of the people who drafted the legislation in question, I would say that the chances are good that yes, they are looking to get one past the Supreme Court, either by having it “sneak through,” SCOTUS reversing itself or a lower court upholding it and SCOTUS refusing to grant cert. If one of the first two happen, it’s the law of the land. If the third, then it’s the law for the part of the country under that court’s jurisdiction, and will in future similar cases be cited either as precedent (within the jurisdiction) or something that another court can take “judicial notice” of in resolving its own case. As understand it, this case hinged on whether the restrictions in question violated the “undue burden” test, which has nothing to do with any of the original privacy/abortion cases and was crafted by Sandra Day O’Connor in IIRC 1990, almost two decades after _Roe_. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 18, 2006, 8:15pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/4 "2006-01-18T20:15:17Z")
> [@Otto](#): > > If one of the first two happen, it’s the law of the land. Not that the state law becomes the law of the land; I meant that the SCOTUS interpretation of the Constitution does. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [January 18, 2006, 8:47pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/5 "2006-01-18T20:47:43Z")
I believe the “undue burden” test comes from _Casey_. That opinion is typically credited to O’Connor, but it wasn’t signed by her alone and no one outside the Court knows who wrote what parts of it. Anyway, **Arky** , your outrage is misplaced. Congress didn’t simply “miss” that there needed to be a life & health exception. They wrote the law stating that there was such an exception, but the Court didn’t buy it. It’s a much subtler point. (Or at least Congress would have you believe it is – actually, they were just trying to do an end-run around the Constitution, but what else is new?) –Cliffy ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [January 18, 2006, 11:09pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/6 "2006-01-18T23:09:24Z")
I can’t say for sure if the following applies in _this_ particular situation, but I have heard of laws passed with “known problems” deliberately inserted into them. Think of it from a legislator’s point of view: Some segment of strident voters want a law banning “X”. Everyone knows it’s a bad idea, so they pass a law banning “X” with a “gotcha” clause inserted. The courts overturn the law. The legislator can rail against “activist judges”. They look good to the voters but don’t have to worry about the mess involved in actually having the law on the books. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [January 18, 2006, 11:51pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/7 "2006-01-18T23:51:06Z")
Legislators also sometimes use this to invalidate otherwise valid laws, by including in the legislation a clause that if any part of the law is found to be unconstitutional, the entire law is inoperative. Usually it’s the other way around and bills are made “severable,” meaning that if one part is struck down the rest of the law remains operative. IIRC Wisconsin’s legislature did this a few years back by passing a blatantly unconstitutional section in a campaign finance reform law and voiding the whole law should any part of it be voided. The governor could have used his line item veto to strike the non-severability clause but did not. A federal judge promptly struck down the unconstitutional bits, the entire law was invalidated, and Wisconsin’s reputation for clean government took another shot to the groin. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [January 19, 2006, 1:23am UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/8 "2006-01-19T01:23:26Z")
As a point of clarification, the Supreme Court did not find this law unconstitutional, but they found the ruling of the lower court (which upheld the statute) to be flawed, and ordered it to be reviewed by that court. ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [January 19, 2006, 2:38am UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/9 "2006-01-19T02:38:44Z")
> [@An Arky](#): > > I just heard the [news](http://news.yahoo.com/s/ap/20060118/ap_on_go_su_co/scotus_abortion;_ylt=AtquXXNxWF3Ij1uQKguI8KCs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--) that once again, an anti-abortion/parental notification law has been struck down by SCOTUS because there was no provision for when the woman’s life is in danger, etc. Not correct. The law _did_ contain a provision for when the woman’s life is in danger. Read the article more closely. ---
**Author:** ![Diceman](https://avatars.discourse-cdn.com/v4/letter/d/22d042/32.png) [@Diceman](https://boards.straightdope.com/u/Diceman)\ **Post date:** [January 19, 2006, 2:55am UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/10 "2006-01-19T02:55:28Z")
> [@friedo](#): > > As a point of clarification, the Supreme Court did not find this law unconstitutional, but they found the ruling of the lower court (which upheld the statute) to be flawed, and ordered it to be reviewed by that court. Right. SCOTUS didn’t really rule on this case. They just passed the buck back to the lower courts. ---
**Author:** ![An\_Arky](https://avatars.discourse-cdn.com/v4/letter/a/87869e/32.png) [@An\_Arky](https://boards.straightdope.com/u/An_Arky)\ **Post date:** [January 19, 2006, 11:18am UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/11 "2006-01-19T11:18:28Z")
> [@Walloon](#): > > Not correct. The law _did_ contain a provision for when the woman’s life is in danger. Read the article more closely. OK, so insert the word “adequate” between the words “of” and “provision” in my OP title. I read the article closely. Quote from article: The Supreme Court agreed that the state law could make it too hard for some minors to get an abortion, because there is no special accommodation for someone who has a medical emergency. Anything else I can do for you? ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [January 19, 2006, 3:57pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/12 "2006-01-19T15:57:05Z")
The New Hampshire statute _does_ contain a provision for life-threatening emergencies: > [@](#): > > **132:26 Waiver of Notice.** > > I. No notice shall be required under RSA 132:25 if: > > (a) The attending abortion provider certifies in the pregnant minor’s medical record that the abortion is necessary to prevent the minor’s death and there is insufficient time to provide the required notice . . . However, it did not contain a provision for _non_-life-threatening medical emergencies, i.e., an emergency which could cause serious but not fatal health problems if not attended. ---
**Author:** ![xash](https://avatars.discourse-cdn.com/v4/letter/x/c6cbf5/32.png) [@xash](https://boards.straightdope.com/u/xash)\ **Post date:** [January 21, 2006, 10:28am UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/13 "2006-01-21T10:28:12Z")
Moved to GD. - **xash** General Questions Moderator ---
**Author:** ![elfkin477](https://avatars.discourse-cdn.com/v4/letter/e/a9a28c/32.png) [@elfkin477](https://boards.straightdope.com/u/elfkin477)\ **Post date:** [January 22, 2006, 11:35pm UTC](https://boards.straightdope.com/t/another-anti-abortion-measure-overturned-due-to-lack-of-provision-for-health-of-woman/340543/14 "2006-01-22T23:35:38Z")
The OP makes no sense. The Supreme Court didn’t overturn a law or block an “anti-abortion measure”, it said that the state court’s decision to block the law without trying to change the particulars was inappropriate. Did you even read the article, **An Arky**? > [@](#): > > The Supreme Court gave New Hampshire a chance to salvage its restrictions on abortion Wednesday, sidestepping for now an emotional subject that is likely to be revisited when a new justice joins the court. > > New Hampshire’s victory may be short-lived because the justices ordered a lower court to consider how to fix problems with the 2003 law requiring a parent to be told before a minor daughter ends her pregnancy. > > \ > > The ruling broke little new ground. However, justices said that lower courts in addressing flaws in abortion laws do not have to take the “most blunt remedy,” striking down an entire law. Instead, the justices said that other “modest” options are available. > > “In the case that is before us … the lower courts need not have invalidated the law wholesale,” O’Connor wrote. “Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem.” If anything, SCOTUS has given our state a _better_ shot at making parental notification the legal standard by changing the law to make it pass the benchmark of being constitutional.