Close Call on Abortion Decision

Those who are concerned about judicial imperialism and the tendency of judicial activists to make the right to an abortion so sacrosanct that a minor need not obtain parental permission to have the procedure were alarmed last week. The Supreme Court let stand without comment the ruling by the Ninth Circuit Court of Appeals in Planned Parenthood v. Wasden. The Appeals Court decision overturned an Idaho law requiring parental permission for a minor to obtain an abortion. The law included provisions for medical emergencies and for a minor to ask for court permission to bypass parental consent in the case that a child feared parental abuse. The classic case for which a judge might grant permission for an abortion would be for a girl seeking to terminate a pregnancy after being raped by her father.

Despite these provisions, one might have expected that in a litigious society where parental permission is required for body piercing, tattoos, and taking medications in school, even the Liberal Ninth Circuit would bow to parental prerogatives in this case. They did not. Moreover, the US Supreme Court, which has often found it necessary to restrain their zealous western colleagues by regularly overturning their decisions, declined to restrain the Ninth Circuit.

However, those like the National Abortion Rights Action League and the National Organization for Women , who worship at the altar of abortion, this is not as much a victory as they would like. Nor is the defeat quite as large as feared by those opposed to abortion, or at least the notion that parental authority should not be casually circumvented. If the Ninth Circuit had overturned parental permission restrictions in general and if the US Supreme Court had let the case stand, parental supervision in an important area would have been legislated away by an act of judicial fiat. Fortunately, the case was decided much more narrowly.

For the purposes of the law, the Idaho statute defined a ``medical emergency'' to mean a ``sudden and unexpected physical condition which, in the reasonable medical judgment of an ordinarily prudent physician acting under the circumstances and condition then existing, is abnormal and so complicates the medical condition of the pregnant minor as to necessitate the immediate causing or performing of an abortion: (1) to prevent her death; or (2) because a delay ... will create serious risk of immediate, substantial, and irreversible impairment...''

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