THE "undue burden" standard a retiring Supreme Court Justice inserted into the national abortion argument has been exploited in the extreme by supporters of abortion rights. How's that for an opening volley in the battle beginning in the highest court in the land?
But social conservatives got it right on this abortion battlefront.
The architect of the aforementioned constitutional caveat, Justice Sandra Day O'Connor, got it wrong when she interpreted the Constitution to completely invalidate any state law that placed such a burden on pregnant women.
The mainstay of the justice's abortion jurisprudence has been successfully manipulated by pro-choice forces to thwart legitimate state rights to regulate abortions.
Hopefully Justice O'Connor will be long retired before the high court is ready to decide on the New Hampshire challenge to her unduly broad burden standard.
In Ayotte vs. Planned Parenthood of Northern New England, New Hampshire Attorney Generally Kelly Ayotte agreed with U.S. Solicitor General Paul Clement on the state's behalf. They must prevail in the first abortion case to come before the court in five years if parental notification or consent laws are to be rescued from summary court rejection as unconstitutional burdens on the right to abortion.
While no state can ban abortion under Roe vs. Wade - and New Hampshire isn't attempting to challenge the landmark ruling - they may control where and under what circumstances the procedure is performed.
All New Hampshire wants to do is require girls under 18 to notify at least one parent 48 hours before having an abortion. The law, which has not been enforced, provides exceptions if the minor's life is in danger.
It does not include the legally vague mother's health exception which led a federal judge and a federal appeals court to therefore rule that it posed an undue burden on underage women seeking abortions and strike it down as unconstitutional.
But New Hampshire balanced its burden on minors to inform a parent before ending a pregnancy with legal cover for some pregnant teens. Parental notification could be waived by judicial fiat if a state judge ruled the minor mature and capable enough to give informed consent, or that her best interests would be served by obtaining an abortion without telling a parent.
Pro-choice advocates call the regulations part of a tactical movement to restrict reproductive rights. Parents like me call them reasonable. Teenage girls, unlike adult women, aren't generally equipped to make critical life decisions involving irreversible medical procedures absent responsible adult input and guidance.
And better it should come from one who holds their better welfare at heart, even clumsily, in households less than Ozzie and Harriet perfect. New Hampshire didn't go the route of 24 other states that mandate parental approval from juveniles before they undergo an abortion. It didn't attach a permission slip to parental notification.
It just said at least one parent should know of their child's intention to have an abortion. Parental consent is routinely demanded for far less. Planned Parenthood should know it is hopelessly out of step with mainstream America when it argues, through the American Civil Liberties lawyers, that pregnant teens should not be so unduly burdened in pursuing their reproductive health choices.
You don't have to be an ardent anti-abortion activist to cringe at the clueless elitism of that position.
It is equally significant that Planned Parenthood is arguing that the standard used to strike down abortion laws like New Hampshire's in their entirety is proper, as opposed to passing a more rigorous test that shows the law invalid in all its applications and not just some.
In other words, only a portion of New Hampshire's statute might be struck down as legally objectionable, but not the whole act.
Still, even the judicial bypass to parental notification in the law was opposed by ACLU lawyer Jennifer Dalven in a brief to the court. "Requiring a minor to delay appropriate care until she can secure a court order is not only unconstitutional, it is inhumane," she wrote.
Crueler yet is to treat teenagers as adults with abortion and hope for the best in a medical crisis with long-lasting emotional and physical ramifications. The moment of truth about U.S. abortion law has arrived in the nation's changing top court and the frenzy over its deliberation and anticipated decision couldn't be more intense.
But it should be no undue burden to find for parents and minors both.