Top court orders more hearings on abortion law

By James Vicini

WASHINGTON (Reuters) – In its first abortion ruling in more
than five years, the U.S. Supreme Court said on Wednesday that
a lower court should not have struck down a state law requiring
parental notice before a minor’s abortion because only part of
it raised constitutional problems.

“We do not revisit our abortion precedents today,” retiring
Justice Sandra Day O’Connor wrote for the unanimous high court
in sending the case back for more hearings.

She said that invalidating the entire New Hampshire law, as
a U.S. appeals court had done, was not always necessary or
justified when only one part of the law failed to provide for
access to an abortion in some medical emergencies.

O’Connor said lower courts in such cases, when considering
whether enforcement of just the medical emergency aspect might
be unconstitutional, may be able to solve that narrow legal
problem without invalidating the entire law.

A federal judge and a U.S. appeals court declared the
entire New Hampshire law unconstitutional because it lacked
provisions for an exception involving a medical emergency. The
law, adopted in 2003, has never been enforced.

Abortion has been one of the nine-member court’s most
contentious and divisive issues. O’Connor, a moderate
conservative who has voted to uphold abortion rights, has said
she will leave the court when her successor is confirmed by the
Senate, which could happen later this month.

Senate Democrats fear that Judge Samuel Alito, nominated by
President George W. Bush to replace O’Connor, and new Chief
Justice John Roberts, another Bush appointee, will vote to
allow new restrictions on abortion.

‘BLUNT REMEDY’

The New Hampshire law requires that a parent be notified 48
hours before a daughter under age 18 has an abortion. It
includes an alternative procedure to seek a judge’s approval to
end the pregnancy. It provides an exception when the minor’s
life is in danger, but not for non-life-threatening medical
emergencies.

“Only a few applications of New Hampshire’s parental
notification statute would present a constitutional problem,”
O’Connor said in the 10-page opinion.

O’Connor said the lower courts in the New Hampshire case
adopted the most blunt remedy possibly. She said an injunction
could be entered barring enforcement of the law’s
unconstitutional applications.

O’Connor said New Hampshire’s has conceded that under
Supreme Court precedent it would be unconstitutional to apply
the law in a manner that subjects minors to significant health
risks.

Although the court disposed of the New Hampshire law on
narrow grounds, the justices may soon address another abortion
controversy.

The Bush administration has pending before the high court
an appeal urging the justices to uphold a federal law that bans
certain abortion procedures.

At issue is a U.S. appeals court ruling that declared the
Partial-Birth Abortion Ban Act of 2003 unconstitutional because
it lacks an exception to protect the health of a pregnant
woman.