WASHINGTON (BP)–A divided U.S. Supreme Court weighed a state abortion restriction for the first time in five years Nov. 30 in oral arguments that focused on whether a lack of a health exception was enough to gut a law requiring parental notification for an underage girl’s abortion.
The morning at the high court featured two abortion-related cases, marking the first time the justices had considered the issue since John Roberts became their chief at the start of this fall’s term. While the court’s 1973 decision legalizing abortion was not in question, demonstrators from both sides carried signs and, on at least the pro-life side, prayed in front of the building.
The arguments in a case involving pro-life demonstrators appeared to go against the pro-choice National Organization for Women, but a ruling in the parental notice case appeared difficult to predict.
In the parental notification case, Planned Parenthood and its pro-choice allies have taken an “all-or-nothing approach,” James Bopp, general counsel for the National Right to Life Committee, said after the arguments.
“The issue is that there is an effort by the pro-choice side to finally capture the absolute right to abortion that they have been seeking,” Bopp told reporters after the arguments. Abortion-rights advocates are doing so through this “one-in-a-thousand hypothetical circumstance” and through the institution of a broadly defined health exception in all abortion regulations, he said.
If all laws that provide for such requirements as informed consent and sharing alternatives to abortion “are subject to being waived by the attending physician because he or she considers the very broad health interests of the woman to be at stake, then that would nullify every single law that regulates abortion,” Bopp said. “They want an all-encompassing, absolute right to abortion without any regulation, and that’s how they’ve approached this case in this court, and that is what is troubling the justices.”
Bopp told Baptist Press, however, he was “very encouraged…. I think you saw certainly [Chief Justice John] Roberts and [Associate Justice Anthony] Kennedy, and [Sandra Day] O’Connor to a lesser extent but as well, very troubled” about the broad rulings by the lower courts.
In the case, the high court heard arguments between a lawyer for Planned Parenthood of Northern New England and the attorney general of New Hampshire over that state’s 2003 parental notice measure, which required a doctor to notify a parent or guardian at least 48 hours before performing an abortion on a girl under 18 years of age. Solicitor General Paul Clement also supported the state on behalf of the federal government.
The law had no opportunity to take effect in the “overwhelming number of applications where it is unquestionably constitutional,” New Hampshire Attorney General Kelly Ayotte told the court. The legislation, which was struck down by lower federal courts because it did not include an exception to protect the girl’s health, provided a mechanism for a medical emergency through a judicial bypass, she said.
What if a judge cannot be reached in an emergency, Associate Justice Stephen Breyer asked.
The doctor would be able to defend himself under the state’s “competing harms defense,” Ayotte said.
“But how do we know that that’s actually the law?” Breyer said. “I mean, there are a lot of people who absolutely in very good faith would say that it isn’t competing harms. They would say that the competing right to life of the fetus is more important than the possibility of the mother having children in the future herself.”
Associate Justices David Souter and Ruth Bader Ginsburg also questioned the state’s position on an abortion doctor’s ability under the law to do an abortion on a minor on the basis of a health emergency.
Associate Justice Antonin Scalia, however, challenged the lower courts’ rulings, asking Ayotte, “We don’t normally interpret statutes this way — that they are totally invalid if any application of them would be unconstitutional?” She agreed.
Clement told the justices, “What you have before you is really a case where it’s literally a one in a thousand possibility that there’s going to be an emergency where the statute won’t operate. And the real question for you is: Faced with that kind of case, do you invalidate 1,000 applications of the statute knowing that 999 of them are constitutional?”
Roberts, Associate Justice Sandra Day O’Connor and even Ginsburg proposed remedies that would enable most of the law to stand.
The chief justice asked Ayotte if he understood from her position that “you don’t object to a pre-enforcement challenge to the bypass procedure itself brought by physicians for example?” In such a case, a doctor could be protected in emergency situations.
“No, we do not object in that sense,” Ayotte replied. “We think that is a very good mechanism to bring forth a case….”
O’Connor asked Jennifer Dalven, representing Planned Parenthood, if she had a problem with returning the case to a lower court and asking for a narrower ruling.
“I believe it is not the better course,” said Dalven, who continued to argue the law should be invalidated by the justices in its entirety.
Davlen said in a statement released after the arguments, “If the court accepts the government’s arguments in this case, it will give a green light to states to pass abortion restrictions that will harm women’s health in medical emergencies.”
Defenders of the law point out the law is modeled after a Minnesota parental notice measure that the Supreme Court upheld in 1990. They also contend a woman’s health has been defined so broadly by the justices since 1973 as to include any reason for having an abortion.
Fran Wendelboe, a supporter of the law in the New Hampshire House of Representatives, told reporters outside the court building that Planned Parenthood’s arguments are “red herrings” and the measure would not prevent doctors from treating minors in emergencies.
Bill Saunders, a bioethics specialist with the Family Research Council, told BP that “it seemed like the court was splitting down the middle on this question.”
An uncertainty is whether O’Connor will even have a vote in the decision. She announced her retirement in July but agreed to serve until her replacement was confirmed. Confirmation hearings for Samuel Alito will begin Jan. 9, and a confirmation vote is planned for Jan. 20. If an opinion in Ayotte v. Planned Parenthood is not issued when Alito joins the court, if indeed he does, there may be only eight justices voting. A 4-4 tie could be the result, and arguments in the case may be rescheduled.
After a federal judge struck down the law, the First Circuit Court of Appeals affirmed the decision in November 2004, ruling not only was a health exception needed but the exception for a threat to the girl’s life was too narrow.
Though Ayotte appealed the case for New Hampshire and members of the state’s House filed a friend-of-the-court brief in support of the law, the governor, John Lynch, submitted a brief in favor of Planned Parenthood.
Among others filing briefs supporting the law were the American Association of Pro-life Obstetricians and Gynecologists, American Center for Law and Justice, Family Research Council, Focus on the Family, Liberty Counsel, Rutherford Institute and the U.S. Conference of Catholic Bishops.
Others submitting briefs supporting Planned Parenthood included the American College of Obstetricians and Gynecologists, Center for Reproductive Rights, NARAL Pro-choice America and Religious Coalition for Reproductive Choice.
A recent Newsweek magazine survey found 78 percent of Americans support parental notification for a minor’s abortion. A Gallup poll released the day of the oral arguments in the Ayotte case showed 69 percent favor the stronger requirement of parental consent.