New Hampshire Case Considered by Supreme Court
WASHINGTON, Nov. 30 — With protesters from both sides assembled on the street outside, the U.S. Supreme Court heard oral arguments Wednesday from New Hampshire’s attorney general and Planned Parenthood of Northern New England in the court’s first abortion-rights case in five years.
At issue was New Hampshire’s 2003 Parental Notification Prior to Abortion Act, which prohibits minors from obtaining an abortion until at least 48 hours after a parent or guardian has been notified.
The act waives that requirement if a judge determines that the minor is “mature and capable of giving confirmed consent” or if the minor’s life is at risk. But-and this is the heart of the legal argument-it does not include an emergency health exemption if the minor’s life is not at risk but she faces bodily injury if the pregnancy continues.
Justice Stephen Breyer almost immediately began firing questions about the clarity of the statute at New Hampshire Attorney General Kelly Ayotte, who argued on behalf of the state.
What options would a physician have, Breyer asked, if a pregnant teen who faced injury from the pregnancy arrived at the medical office when a judge could not be reached and a parent had not been notified.
Ayotte said that an existing state law would protect physicians who performed abortions in this situation.
“It doesn’t say that in this legislation,” Breyer shot back. “It says the contrary.”
According to the Supreme Court’s 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, state abortion laws must provide an explicit “health exception.” Ayotte said that the judicial bypass mechanism in the bill satisfies this requirement.
“The judicial bypass provision and the death exception are constitutionally sufficient and legal means of protecting the health of a minor,” Ayotte said in a written statement the day before the court hearing. The act “does not present a substantial obstacle to any woman’s right to choose an abortion; instead, the act provides pregnant minors with the benefit of parental guidance and assistance in exercising what is undoubtedly a difficult choice.”
Other than questioning what Ayotte meant when she said that a doctor who performs an abortion without receiving a judicial approval and when the minor’s parent had not been notified were “constitutionally protected,” Justice David Souter, a former New Hampshire attorney general, was quiet during the hearing.
U.S. Solicitor General Paul Clement, joined Ayotte in defending the law, which has never been applied in the state because of an injunction imposed after its passage. Jennifer E. Dalven, a lawyer for the American Civil Liberties Union, spoke on behalf of Planned Parenthood of Northern New England.
“I don’t think saving a statute is worth putting a teen’s life at risk,” Dalven said. “Delaying appropriate care can be catastrophic” and lead to injuries to the liver or kidneys, stroke and infertility, among other conditions.
Justice Antonin Scalia reminded Dalven that “it takes 30 seconds to make a phone call” to a judge to receive approval for an abortion, adding that the state could establish an “abortion judge” who would be available 24 hours a day to rule in such cases.
While Scalia’s comment brought the courtroom to laughter, some members of New Hampshire’s Legislature said afterwards that they were offended by the statement.
“I thought Justice Scalia made a mockery of the case,” said Lou D’Allesandro, deputy Democratic leader of the state Senate.
Ayotte maintained that a physician would not be prosecuted for performing an abortion on a minor without parental notification or judicial authorization in the “rare emergency cases” and said that her office was prepared to offer an opinion to that effect. But her opponents said they were not convinced that this was appropriate, and some of the justices seemed similarly unpersuaded.
New Hampshire state Rep. Marjorie Smith questioned what would happen when Ayotte was no longer the attorney general. She said such decisions should be made according to law, not through an opinion issued by a government office.
In his first abortion-rights case, Chief Justice John Roberts avoided questions and statements that revealed his stance on the issue, at one point suggesting that the case possibly go back to a lower court as a “pre-enforcement” suit that “would be focused on the health exemption problem and not on the statute as a whole.”By Kathleen D. Tobin
WASHINGTON, Nov. 30 — With protesters from both sides assembled on the street outside, the U.S. Supreme Court heard oral arguments Wednesday from New Hampshire’s attorney general and Planned Parenthood of Northern New England in the court’s first abortion-rights case in five years.
At issue was New Hampshire’s 2003 Parental Notification Prior to Abortion Act, which prohibits minors from obtaining an abortion until at least 48 hours after a parent or guardian has been notified.
The act waives that requirement if a judge determines that the minor is “mature and capable of giving confirmed consent” or if the minor’s life is at risk. But-and this is the heart of the legal argument-it does not include an emergency health exemption if the minor’s life is not at risk but she faces bodily injury if the pregnancy continues.
Justice Stephen Breyer almost immediately began firing questions about the clarity of the statute at New Hampshire Attorney General Kelly Ayotte, who argued on behalf of the state.
What options would a physician have, Breyer asked, if a pregnant teen who faced injury from the pregnancy arrived at the medical office when a judge could not be reached and a parent had not been notified.
Ayotte said that an existing state law would protect physicians who performed abortions in this situation.
“It doesn’t say that in this legislation,” Breyer shot back. “It says the contrary.”
According to the Supreme Court’s 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, state abortion laws must provide an explicit “health exception.” Ayotte said that the judicial bypass mechanism in the bill satisfies this requirement.
“The judicial bypass provision and the death exception are constitutionally sufficient and legal means of protecting the health of a minor,” Ayotte said in a written statement the day before the court hearing. The act “does not present a substantial obstacle to any woman’s right to choose an abortion; instead, the act provides pregnant minors with the benefit of parental guidance and assistance in exercising what is undoubtedly a difficult choice.”
Other than questioning what Ayotte meant when she said that a doctor who performs an abortion without receiving a judicial approval and when the minor’s parent had not been notified were “constitutionally protected,” Justice David Souter, a former New Hampshire attorney general, was quiet during the hearing.
U.S. Solicitor General Paul Clement, joined Ayotte in defending the law, which has never been applied in the state because of an injunction imposed after its passage. Jennifer E. Dalven, a lawyer for the American Civil Liberties Union, spoke on behalf of Planned Parenthood of Northern New England.
“I don’t think saving a statute is worth putting a teen’s life at risk,” Dalven said. “Delaying appropriate care can be catastrophic” and lead to injuries to the liver or kidneys, stroke and infertility, among other conditions.
Justice Antonin Scalia reminded Dalven that “it takes 30 seconds to make a phone call” to a judge to receive approval for an abortion, adding that the state could establish an “abortion judge” who would be available 24 hours a day to rule in such cases.
While Scalia’s comment brought the courtroom to laughter, some members of New Hampshire’s Legislature said afterwards that they were offended by the statement.
“I thought Justice Scalia made a mockery of the case,” said Lou D’Allesandro, deputy Democratic leader of the state Senate.
Ayotte maintained that a physician would not be prosecuted for performing an abortion on a minor without parental notification or judicial authorization in the “rare emergency cases” and said that her office was prepared to offer an opinion to that effect. But her opponents said they were not convinced that this was appropriate, and some of the justices seemed similarly unpersuaded.
New Hampshire state Rep. Marjorie Smith questioned what would happen when Ayotte was no longer the attorney general. She said such decisions should be made according to law, not through an opinion issued by a government office.
In his first abortion-rights case, Chief Justice John Roberts avoided questions and statements that revealed his stance on the issue, at one point suggesting that the case possibly go back to a lower court as a “pre-enforcement” suit that “would be focused on the health exemption problem and not on the statute as a whole.”
