Supreme Court Hears New Hampshire Abortion Law Case
WASHINGTON, Nov. 30 — As protestors from both sides of the abortion debate gathered outside the Supreme Court Wednesday morning, New Hampshire Attorney General Kelly Ayotte urged the justices to uphold the state’s parental notification law concerning abortion rights for minors.
The case, Ayotte v. Planned Parenthood, was the court’s first abortion rights case in five years and the first under Chief Justice John Roberts.
The New Hampshire parental notification abortion law, which was passed by the New Hampshire legislature in June of 2003, requires parental or guardian notification before abortions can be performed on minors. It was passed in the state Senate by 12 to 11 and the House by 187 to 181 and signed into law by then-Gov. Craig Benson. However, a federal judge issued an injunction blocking enforcement of the law two days before it was supposed to take effect.
The law provides an exception to the parental notification when the pregnant minor’s life is threatened. However, New Hampshire is one of only five states that do not provide exceptions for medical emergencies that are serious but not necessarily life-threatening. The United States Court of Appeals for the First Circuit upheld the lower court, finding the law to be unconstitutional because the health exception was limited to preventing the minor’s death.
“As the nation’s leading medical authorities have explained, delaying appropriate care for even a very short period can be catastrophic and puts the teen at risk of liver damage, kidney damage, stroke and infertility,” said Jennifer Dalven, an American Civil Liberties Union lawyer representing Planned Parenthood of Northern New England.
Dalven was asked by Justice Ruth Bader Ginsburg why it would have not been adequate for the court of appeals to have simply said that the New Hampshire law is unconstitutional because it “leaves no exception for emergency cases?”
Dalven said that this would not resolve the issue because “different medical emergency definitions” have been adopted by other states.
Justice Sandra Day O’Connor interjected, saying, “We’re dealing with New Hampshire law. Could you focus on this one?”
The oral arguments were intense and included Justice Stephen Breyer describing a dramatic hypothetical situation in which a pregnant teen goes to an emergency room at 2 a.m. in distress and a doctor decides that unless an abortion is performed immediately the patient will become sterile and only reaching voice mail when he calls a judge to receive permission for the procedure.
Ayotte argued that “the physician in those circumstances could perform the abortion” because the state would protect his medical judgment without prosecution.
According to Ayotte, “in that rare circumstance” when the minor needs an abortion to protect her health a doctor can end the pregnancy without fear of prosecution or civil lawsuits and that a physician who performed such an abortion would be “constitutionally protected.”
Justice David Souter, who is from New Hampshire, challenged her on the point. “What do you mean when you say it would be constitutionally protected?” Souter asked.
Breyer questioned her statement that a different state law would protect physicians in emergency situations. “How do we know that’s the law?” Breyer asked.
He said that people on both sides might disagree on whether the law offered such protection to the physician and mentioned the competing argument, that the life of the fetus is more important.
“Lot’s of people think ‘health exception’ is a way of getting abortion on demand,” said Justice Breyer. This view corresponds with the intent of the bill’s original New Hampshire sponsors who argued that a health exception would give doctors a loophole to avoid parental involvement in abortions.
However Dalven argued that without a health exception, the minor’s life is put in danger. “Once a minor arrives in the emergency room, it is too late for her to go to court,” said Dalven.
Justice Antonin Scalia considered what would happen if “a special office, open 24 hours a day,” with what he called an “abortion judge” on duty, could field all of the calls from physicians in these types of emergencies.
Proponents of both sides of the case consider it to be of great importance, although because of its narrow focus on the health exceptions it does not challenge the 1973 Roe v. Wade ruling that abortion is a constitutional right.
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