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Friday, December 02, 2005

Bad cases make bad law, which makes more bad cases, which makes ...  

I watched enough news coverage of the Supreme Court arguments yesterday about the challenge to New Hampshire's parental notification law to hear Breyer's hypothetical, attempting to establish that the current law imposed an undue burden:
Suppose a fifteen-year-old shows up at the emergency room at two in the morning on a Saturday, pregnant and bleeding. The doctor examines her and decides that, without an abortion, she could have sterility or kidney damage or some other problems. No question, and no time for delay. But she doesn't want her parents to know she's pregnant. He goes to the phone to call a judge ... and he gets voice mail. What guidance does this law give him in that situation?
It could happen. Somewhere, sometime, someday. Maybe it already has, among the millions of cases.

Let's ignore the fact that medically necessary abortions are a tiny fraction of the total number, although they (like the even smaller fraction resulting from rape or incest) are regularly used in arguments opposing restrictions on any. Because the law has to apply to everyone equally, the exceptional instance has to carry as much weight as the commonplace, according to current theory, if not more. (Another theory says the law should clearly address the commonplace, and exceptional cases are precisely the only ones that should be adjudicated. But that means less work for lawyers and less influence for judges, so that's a non-starter. Besides, every client thinks their case is exceptional.) Which is another reason why courts should not be deciding public policy in a democratic society, but let's ignore that, too.

Let's look a bit deeper at Breyer's hypothetical. Doesn't the fact that this kid would rather risk serious (perhaps lifelong) medical consequences than let her parents know she's sexually active constitute prima facie evidence that she's not competent to make serious decisions like this? Doesn't the posited risk of sterility sufficiently outweigh the risk of being grounded or disciplined that no reasonable person could choose it, and so this can't be her choice to make?

And how, exactly, did a fifteen-year-old get to the emergency room in the first place? She's not old enough to drive. Did she hitchhike? Was she out with friends hours past midnight? (Hardly intelligent behavior for a pregnant youngster, supporting the incompetence argument.) Did her nineteen-year-old boyfriend (who by the way is guilty of statutory rape, and is a contributing party to this looming catastrophe) drive her? Or did her parents bring her?

Consider that last possibility. The parents are sitting in the next room, frantic about their child who's in serious medical difficulty, and the entire hospital staff is bound by law not to tell them what's going on with her. Sometimes the law is an ass; sometimes it's clinically insane.

posted by Kelly | 11:16 AM link