# Ayotte v. Planned Parenthood - SCOTUS takes on an abortion case! **URL:** \ **Category:** Great Debates\ **Created:** [May 23, 2005, 11:51pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190 "2005-05-23T23:51:53Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 26, 2005, 12:30pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/121 "2005-05-26T12:30:51Z")
> [@Bricker](#): > > The importance of _stare decisis_ is in providing predictabilityof results. Right. That’s why overturning _Lawrence_ now would be an unpredictable result. _Stare decisis_ is the principle that courts should follow existing precedent (where applicable), not that they should restore existing case law to a previous state. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 26, 2005, 1:49pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/122 "2005-05-26T13:49:09Z")
I’m with **Hamlet**. As I said, O’Connor’s rationale seemed like a transparent way to strike the statute down on equal protection grounds without having to hold that intermediate scrutiny is appropriate for sexual orientation. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 26, 2005, 2:04pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/123 "2005-05-26T14:04:12Z")
It was certainly a transparent effort to avoid having to overturn the _Bowers_ holding on Due Process. But the Equal Protection analysis was on solid precedential ground, since the Court had used the same low-level-with-teeth scrutiny to strike down Colorado’s constitutional blessing of government discrimination based on secual orientation (what was that case’s name?) a few years earlier. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 26, 2005, 2:12pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/124 "2005-05-26T14:12:54Z")
> [@](#): > > But the Equal Protection analysis was on solid precedential ground, since the Court had used the same low-level-with-teeth scrutiny to strike down Colorado’s constitutional blessing of government discrimination based on secual orientation (what was that case’s name?) a few years earlier. No – in _Romer_, the Court found that the government was discriminating impermissibly on the basis of sexual orientation, as you state above. But O’Connor’s concurrence didn’t say this – it said that the government was discriminating impermissibly on the basis of gender, a completely different thing. The former acknowledges that laws targeting sexual orientation might be subject to greater scrutiny than simple rational basis; the latter doesn’t. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 26, 2005, 2:14pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/125 "2005-05-26T14:14:35Z")
The former acknowledges that laws targeting sexual orientation are subject to greater scrutiny than simple rational basis; the latter doesn’t. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [May 26, 2005, 2:26pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/126 "2005-05-26T14:26:34Z")
I’ll accept your distinction that _Romer_ used “sexual orientation” and O’Connor’s concurrence used “gender” for their respective labels, but my recollection (I haven’t read them in some time) is that the level of scrutiny in both cases was identical: _low-level_, i.e., “rational basis” scrutiny. At least, I’m positive it was low-level (with teeth, obviously) scrutiny in _Romer_; O’Connor might have gone with intermediate scrutiny for the gender-based classification at issue in _Lawrence_. But that’s all getting to be speculative on my part since I don’t remember the details all that terribly clearly. I’ll defer to anyone who’s read them recently. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 26, 2005, 2:35pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/127 "2005-05-26T14:35:26Z")
Rational basis with teeth, yes. Justice O’Connor: > [@](#): > > When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. And, reading O’Connor’s concurrence, I withdraw my earlier criticism. She _does_ view sexual orientation as a suspect class, not just gender: > [@](#): > > A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to “a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass … cannot be reconciled with” the Equal Protection Clause. I’m still surprised that **Bricker** approves of her opinion, however, given his previously asserted belief in the extreme deference accorded to the legislature under rational basis review. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [May 26, 2005, 3:33pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/128 "2005-05-26T15:33:08Z")
> [@1010011010](#): > > The same protections to privacy that us regular folks get. > It would allow parents a chance to point out to the girls that it’s a stupid decision when it’s still relatively low-risk and convenient to terminate the pregnancy. 😕 If these girls told there parents about pregnancy we wouldn’t be having this discussion. You ask what protections we give to the girls that carry the child to term and I say there are none we can give. We can’t force a girl to tell her parents when no one else even knows she is pregnant. We can force her to notify her parents before having an abortion. > [@1010011010](#): > > But I like the way you’re thinking on that last bit. Provided parental notification was the responsibility of the minor seeking the procedure (I.E. a checkbox on the admission paperwork, or a letter given to the patient afterwards) with no penalty for not actually doing it, we might be able to agree. The point of parental notification is to give the legal guardians input into the medical decisions of their ward. Telling them after the fact doesn’t accomplish that. > [@1010011010](#): > > How about parental notification after-the-fact? A determination as to whether the parents would be notified could be held prior to the procedure, but notification would not occur until after the minor’s independent choice was honored. You speak as though minors have independent choices in medical procedures. They don’t, ultimately the guardian is the one that makes those decisions. > [@1010011010](#): > > Parental notification before the abortion (and your explicit statement that parents should “have a hand in the decision making process”) serves the purpose to offer parents a chance to manipulate the minor away from their original choice to abort. It serves the purpose for parents to have a say in their childs medical decisions. > [@1010011010](#): > > Pay attention to the rhetoric of certain pro-life folks. Some oppose abortion because they view unwanted pregnancy as a righteous punishment for fornicating slatterns. I’m sure these people delight in the idea of a teenage seductress, who thought she could destroy the evidence of her sins, recieving her just desserts when she falls into the trap of mandatory parental notification and her parents act as the instruments of God’s Wrath to punish her for her evil deeds. Can I get an Amen? What exactly is the purpose of this paragraph, do you see anyone in this thread acting like that? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2005, 3:48pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/129 "2005-05-26T15:48:06Z")
> [@Hamlet](#): > > I’ll tell you, this surprises the hell out of me coming from you. Actually, it surprises me that anyone accepted that argument. There was little if no precedential support and very little legal rationality to her opinion. I will grant you that the majority opinion was horribly written, but O’Connor’s concurrence wasn’t much better. Let me expand a bit, and maybe it will make more sense. O’Connor would treat classifications based on sexual orientation as subject to intermediate scrutiny, just like gender dsicrimination. I agree that there is no legal precedent for that determination… but there wasn’t any legal precedent for treating gender as deserving intermediate scrutiny once upon a time. If that standard is accepted, then we save _Lawrence_’s result without reaching into the Magic Polymorphic Hat of Substantive Due Process, and we have a principled method of analyzing EP claims relating to sexual orientation in the future. (By “principled” I mean avoiding **Gadarene** ’s hidden-process ratiional-basis-with-teeth standard.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2005, 3:49pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/130 "2005-05-26T15:49:16Z")
> [@Gadarene](#): > > I’m still surprised that **Bricker** approves of her opinion, however, given his previously asserted belief in the extreme deference accorded to the legislature under rational basis review. If it were rational basis review, I wouldn’t. Under intermediate scrutiny, I would. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2005, 3:51pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/131 "2005-05-26T15:51:42Z")
> [@1010011010](#): > > Pay attention to the rhetoric of certain pro-life folks. Some oppose abortion because they view unwanted pregnancy as a righteous punishment for fornicating slatterns. I’m sure these people delight in the idea of a teenage seductress, who thought she could destroy the evidence of her sins, recieving her just desserts when she falls into the trap of mandatory parental notification and her parents act as the instruments of God’s Wrath to punish her for her evil deeds. Can I get an Amen? Are you talking about someone in this thread, or in the general population of the world? You’re offering a _strawman_ argument: you are defeating an argument that you constructed yourself - not an argument actually offered by anyone here on the opposing side. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [May 26, 2005, 3:57pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/132 "2005-05-26T15:57:08Z")
> [@](#): > > O’Connor would treat classifications based on sexual orientation as subject to intermediate scrutiny, just like gender dsicrimination. No, she wouldn’t. See below. > [@](#): > > (By “principled” I mean avoiding Gadarene’s hidden-process ratiional-basis-with-teeth standard.) 😕 Why is this ‘my’ standard? The quote I gave regarding the “more searching form of rational basis review” came from O’Connor’s concurrence itself. Nowhere in the concurrence does she apply the substantially-related-to-an-important-state-interest rubric that is the hallmark of intermediate scrutiny. Rather, she repeats several times that she’s applying rational basis review, and denies that the statute forwards even a _legitimate_ state interest. For example: > [@](#): > > This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. So I repeat: 😕 ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [May 26, 2005, 7:34pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/133 "2005-05-26T19:34:25Z")
> [@Bricker](#): > > Let me expand a bit, and maybe it will make more sense. O’Connor would treat classifications based on sexual orientation as subject to intermediate scrutiny, just like gender dsicrimination. I agree that there is no legal precedent for that determination… but there wasn’t any legal precedent for treating gender as deserving intermediate scrutiny once upon a time. > > If that standard is accepted, then we save _Lawrence_’s result without reaching into the Magic Polymorphic Hat of Substantive Due Process, and we have a principled method of analyzing EP claims relating to sexual orientation in the future. (By “principled” I mean avoiding **Gadarene** ’s hidden-process ratiional-basis-with-teeth standard.) My surprise was that you would subject legislation discriminating against homosexuals to intermediate scrutiny. In every other thread on the issue, I don’t recall you ever standing by that proposition, and, in fact, I thought you had rejected it. Hence my surprise. ---
**Author:** ![ExTank](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@ExTank](https://boards.straightdope.com/u/ExTank)\ **Post date:** [May 26, 2005, 7:54pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/134 "2005-05-26T19:54:17Z")
> [@Diogenes the Cynic](#): > > _Forcing_ them into the loop will result in MORE bad decisions, not to mention more abuse. What is the upside? What you’re missing is that there are already state and federal agencies and bureaus, private organizations, and groups to deal with battered/abused minors, including sexual abuse; the teenaged girl impregnated by her male relatives will have not only the full weight of law enforcement behind her (cops detest child molesters and sexual predators in general), but municipal, state and federal agencies lining up to provide medical assistance, counseling, and shelter. Your boogeymen “evil [male] parents” are a nonstarter. But taking parents out of the loop in all other cases further erodes a parent’s right to govern their minor children as they see fit w/in the limits of the law, and instead puts it into the hands of the minor who, in the case of abortion, has obviously failed at least once already to exercise discretion and judgement. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2005, 8:09pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/135 "2005-05-26T20:09:42Z")
> [@ExTank](#): > > What you’re missing is that there are already state and federal agencies and bureaus, private organizations, and groups to deal with battered/abused minors, including sexual abuse; the teenaged girl impregnated by her male relatives will have not only the full weight of law enforcement behind her (cops detest child molesters and sexual predators in general), but municipal, state and federal agencies lining up to provide medical assistance, counseling, and shelter. > > Your boogeymen “evil [male] parents” are a nonstarter. You’re failing to address the concern about girls who are afraid they will be abused or abandoned if they are ratted out to their parents. If they are disbelieved by some judge because his magic truth-telling abilities didn’t work that day (or maybe he’s just an asshole with axe against abortion) then she is NOT going to be protected from abuse or abandonment. You are not addressing the concern that girls who are faced with such a threat may seek more despearte choices > [@](#): > > But taking parents out of the loop in all other cases further erodes a parent’s right to govern their minor children as they see fit w/in the limits of the law, There is no right of parents to “govern” the reproductive choices of their children. That choice belongs exclusively to the person who lives in that body > [@](#): > > and instead puts it into the hands of the minor who, in the case of abortion, has obviously failed at least once already to exercise discretion and judgement. How has she “failed” to exercise judgement by seeking an abortion? That sounds like excellent judgement to me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 26, 2005, 8:11pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/136 "2005-05-26T20:11:42Z")
> [@Gadarene](#): > > No, she wouldn’t. See below. Then my mistake. I always thought her dicta was internediate scrutiny for sexual orientation. If she didn’t say that, then I DON’T agree with her. But I’d still support intermediate scrutiny over rational-basis-with-teeth, or even rational basis. > [@Hamlet](#): > > My surprise was that you would subject legislation discriminating against homosexuals to intermediate scrutiny. In every other thread on the issue, I don’t recall you ever standing by that proposition, and, in fact, I thought you had rejected it. Hence my surprise. Actually, I think you’ll find that if you review everything I said, while I spent a great deal of time showing (correctly, I might add) why same-sex marriage laws survive a rational basis test, and saying that this was the appropriate test under the law, I never rejected it, except as inconsistent with precedent. But I did say even then that it would be better to simply decalre that this is a new category of classification subject to intermediate review as opposed to simply shoe-horning it into failing rational basis. I think the WISEST course is to permit the states to legislatively correct the problem. But if there is a judicial solution, it’s far more honest to place sexual orientation into the intermediate scrutiny camp. And I have always acknowledged that same-sex marriage laws would not survive intermediate scrutiny. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 26, 2005, 8:58pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/137 "2005-05-26T20:58:13Z")
> [@Diogenes the Cynic](#): > > There is no right of parents to “govern” the reproductive choices of their children. That choice belongs exclusively to the person who lives in that body. Huh? If I, as a parent, forbid my 12 year old daughter from seeing her her boyfriend, can my daughter take me to court? Will the judge rule that I have infringed on the reproductive choice of my daughter and that I must let her spend time with the boyfriend? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [May 26, 2005, 9:33pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/138 "2005-05-26T21:33:43Z")
> [@John Mace](#): > > Huh? If I, as a parent, forbid my 12 year old daughter from seeing her her boyfriend, can my daughter take me to court? Will the judge rule that I have infringed on the reproductive choice of my daughter and that I must let her spend time with the boyfriend? Huh? What does spending time with a boyfriend have to do with reproductive choice? Of course you have the right to protect your daughter from being molested. Let me put it another way, there is no parental right to force a pregnant daughter to remain pregnant against her will (or to force her to terminate that pregnancy). ---
**Author:** ![Ms2001](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ms2001/32/18463_2.png) [@Ms2001](https://boards.straightdope.com/u/Ms2001)\ **Post date:** [May 26, 2005, 9:41pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/139 "2005-05-26T21:41:02Z")
> [@ExTank](#): > > But taking parents out of the loop […] puts it into the hands of the minor who, in the case of abortion, has obviously failed at least once already to exercise discretion and judgement. Are you saying anyone who has sex but doesn’t want children has failed to exercise discretion and judgment? I really don’t see any other way you and **cmkeller** could claim that any minor seeking an abortion is automatically lacking in judgment. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 26, 2005, 10:33pm UTC](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190/140 "2005-05-26T22:33:17Z")
> [@Diogenes the Cynic](#): > > Let me put it another way, there is no parental right to force a pregnant daughter to remain pregnant against her will (or to force her to terminate that pregnancy). OK, that’s something entirely different than what you said earlier. I can agree with that statement. [Previous page](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190.md?page=6) [Next page](https://boards.straightdope.com/t/ayotte-v-planned-parenthood-scotus-takes-on-an-abortion-case/305190.md?page=8)