November 30, 2005
US top court reviews abortion parental notice law
By James Vicini
WASHINGTON (Reuters) - The U.S. Supreme Court grappled with
its first abortion case in five years on Wednesday, considering
whether a parental notification law must provide an exception
when the health of an abortion-seeking minor is at risk.
solution to the case, the first abortion controversy to reach
the court under its new chief justice, John Roberts. Abortion
has been one of the court's most contentious issues.
A number of justices asked whether the entire law should
have been struck down or whether a narrower ruling could have
been made that the New Hampshire law does not cover emergency
health situations for minors seeking an abortion.
"Why should you be able to challenge the act as a whole if
your objection is so narrowly focused?" Roberts asked the
attorney who opposed the law.
The case does not involve a challenge to the landmark Roe
v. Wade decision in 1973 that established that women have a
constitutional right to abortion.
And it could end up being argued again if the justices are
split by a 4-4 vote and cannot get out a decision by the time
retiring Justice Sandra Day O'Connor leaves the court.
O'Connor, who often has cast the decisive vote to strike
down abortion restrictions, plans to step down when her
replacement is confirmed. Conservative Judge Samuel Alito has
been named to replace her, and the Senate is expected to vote
on his nomination in January.
O'Connor said the entire law had been invalidated and, like
Roberts, questioned whether the case could be narrowed.
"Obviously, it's a matter of concern," she said.
The New Hampshire law requires that a parent be notified 48
hours in advance of any abortion for anyone under age 18. It
includes an alternative procedure of getting a judge's
approval. It provides an exception when the minor's life is in
danger, but not for non-life-threatening medical emergencies.
Justice Stephen Breyer cited the example of a 15-year-old
girl who shows up in the emergency room at 2 a.m. on a weekend
and has medical problems that would result in her infertility.
She tells the doctor not to notify her parents.
"There's no health exception in the statute," Breyer said,
after New Hampshire Attorney General Kelly Ayotte said the
doctor could perform an immediate abortion.
Ayotte argued that it would be a "rare circumstance" when a
minor would need an immediate abortion because of a health
Several justices appeared skeptical when she said that
existing New Hampshire law would protect doctors from
prosecution in such cases.
In its last abortion decision in 2000, the Supreme Court
ruled that state abortion laws must provide an exception to
protect the pregnant woman's health. It struck down a Nebraska
law that banned a type of abortion procedure.
A federal judge and a U.S. appeals court declared the New
Hampshire law unconstitutional because it lacked provisions for
an exception involving a medical emergency. The law, adopted in
2003, has never been enforced.
Solicitor General Paul Clement, the Bush administration's
top courtroom lawyer, also argued in support of the law. He
said the opponents could have brought a narrower challenge.
Jennifer Dalven of the American Civil Liberties Union
argued that the law was correctly struck down.
"The unfortunate reality is that some pregnant teens
experience emergencies that require an immediate abortion," she
said, adding that they could suffer kidney and liver damage,
strokes or infertility.
Justice Anthony Kennedy said the alternative procedure of
getting approval from a judge might save the law, an issue that
has yet to be litigated in the courts. "There can be nurses or
attendants that can get the judge on the line," he said.