Bloomberg News - Supreme Court Tells Appeals Court to Revisit Abortion Ruling in Parental Notification Case

January 18, 2006
by: Greg Stohr in Washington

(Bloomberg) -- The U.S. Supreme Court, reaching a rare compromise in an abortion case, unanimously told a lower court to reconsider a ruling that struck down a New Hampshire parental-notification requirement because it lacked an exception for health emergencies.

The justices said their past cases require that doctors be allowed to perform emergency abortions to protect a patient's health. The justices said that instead of striking down the entire New Hampshire law, the lower court should consider simply blocking enforcement of the notification requirement in cases of health emergencies.

"Only a few applications of New Hampshire's parental notification statute would present a constitutional problem,'' Justice Sandra Day O'Connor wrote for the court.

The case now returns to a Boston-based federal appeals court to determine whether the New Hampshire legislature would have preferred a limited parental-notification law or no requirement at all. O'Connor called that "an open question.''

The law, which has never taken effect, requires girls under age 18 who seek an abortion to notify a parent 48 hours in advance unless a judge rules the minor is mature enough to give informed consent herself. An abortion could be performed without such notification if needed to prevent the minor's death. No similar exception exists to protect her health.

44 States

New Hampshire is one of 44 states with a parental- notification requirement. Four of those states -- New Hampshire, Minnesota, Missouri and Wyoming -- make no exception for health emergencies, O'Connor said.

Advocates on both sides of the issue praised the court's decision.

"The Supreme Court got it right in determining that the appeals court went too far by declaring the parental notification law in New Hampshire unconstitutional,'' Jay Sekulow, chief counsel of the American Center for Law and Justice, said in a statement. The organization had filed a court brief supporting New Hampshire and arguing that a health exception wasn't required.

Today's decision means "there will be important and necessary protection for teens who face medical emergencies,'' said Louise Melling, director of the American Civil Liberties Union's Reproductive Health Project, which represented the law's challengers.

Second Abortion Case

In an interview, Melling said the decision leaves open the possibility the ACLU could renew its argument that the entire law should be struck down because the legislature intentionally omitted an exception for health emergencies.

The case is only the second abortion dispute at the high court since it reaffirmed the constitutional right in the 1992 Planned Parenthood v. Casey case. The court soon will consider whether to add another case, the Bush administration's bid to revive a federal ban on a procedure critics call "partial birth'' abortion.

The court struck down a Nebraska partial birth law in 2000, saying it lacked an adequate health exception. Both that decision and the Casey ruling were resolved on 5-4 votes.

Today, O'Connor wrote that, in the Nebraska case, neither side asked for a more limited ruling.

The New Hampshire case originally loomed as a major test of the standards that would apply to efforts to invalidate abortion restrictions. The case asked whether those suits must meet a tough legal standard that applies in other types of cases. The state and the Bush administration said abortion laws should be overturned only if they can't ever be applied in a constitutional manner.

The New Hampshire case also was designed to test whether abortion regulations must contain an explicit exception for cases in which the mother's health is endangered. The court didn't resolve either of those questions.

The case is Ayotte v. Planned Parenthood of Northern New England, 04-1144.