Stenberg v Carhart: In your face? SCOTUS to decide

The SCOTUS last issued an abortion ruling five years ago in Stenberg v Carhart, regarding Nebraska's attempt to criminalize certain late term abortions. Stenberg marked liberals' restoration of stricter "per se" scrutiny of anti-abortion laws from the Casey "undue burden" test for Roe v Wade rights which left libertarian abortion rights at the mercy of case by case reviews of the reasonableness of all abortion regulations states sought. Recently SCOTUS accepted for cert. review a New Hampshire law that purports to restrict minors' abortions occurring without parental notification Ayotte v. Planned Parenthood of Northern New England. In Ayotte the 1st Circuit found New Hampshire's parental notification law unconstitutional per se because it found the law neglected the health of the pregnant minor. Likewise the 4th Circuit Court of Appeals struck down a Virginia law restricting partial birth abortions that lead to a live child birth because it found no rights preserving procedures necessary for the mothers health. Richmond Medical Center for Women, et al., v. Hick The 4th Circuit majority in the 2-1 decision found Stenberg laying down a “per se” constitutional rule that any state restrictions on "partial-birth" abortion procedures must always contain an exception to protect the health of the pregnant woman when her doctor decides the method is medically necessary for her. Put another way, the 4th Circuit found such a restriction it found lacking a "mother's health" exception "facially unconstitutional," a test usually reserved for First Amendment cases.See Chicago v. Morales, Scalia dissenting {criticizes expanding facial challenges to laws beyond First Amendment issues.} Ever since Salerno v. United States, the Supreme Court discouraged free ranging facial challenges for every injustice under the sun, as “A facial challenge... is...most difficult...to mount ...since (one) must establish that no set of circumstances exists under which (a law) would be valid. We have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” Chicago v. Morales, Scalia dissenting. The 1st Circuits Ayotte case will challenge whether the parental notification exceptions take care of the supreme court's health concerns and whether the Stenberg perse rule is appropriate for an abortion rights case. The expected retirement of one or more Supreme Court Justices may produce quite a few fireworks for Roe advocates because a more conservative court may very well fall back to Casey's nominal abortion rights endorsement while allowing the appropriate standard of review, "undue burden" for this liberty which hardly counts as a First Amendment right.