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Supreme Court justices return parental notification case back to appeals court

WASHINGTON (BP)–The Supreme Court unanimously ruled Jan. 18 two lower courts had overreached in striking down in its entirety a state law requiring parental notification before an underage girl has an abortion.

The high court acknowledged in the opinion it was not addressing any issues of substance regarding its previous rulings on abortion. Instead, the justices vacated the decision of the First Circuit Court of Appeals and returned the case involving a New Hampshire law to that court for reconsideration.

In essence, the Supreme Court’s action would appear to serve as only a delay in its final decision in the case. Under such a scenario, the justices’ new opinion would seem to bolster the hopes of supporters of the law.

Associate Justice Sandra Day O’Connor has announced her retirement, and Samuel Alito, who has been nominated by President Bush to replace her, is expected to be confirmed later this month.

O’Connor has provided an important vote to uphold abortion rights and to strike down some state restrictions on the practice. Pro-life advocates hope Alito, who has served for the last 15 years on the Third Circuit Court of Appeals, will support state regulation of abortion and possibly provide a vote ultimately to reverse the 1973 Roe v. Wade opinion legalizing abortion.

New Hampshire’s 2003 parental notice measure 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.

A federal judge and the First Circuit could have invalidated only the questionable portions of New Hampshire’s law instead of all of it, O’Connor wrote in her 10-page opinion for all the justices.

“[T]he courts below chose the most blunt remedy -– permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely,” O’Connor wrote. The high court agrees with the state “that the lower courts need not have invalidated the law wholesale,” she said.

Both of the lower courts ruled the entire law was unconstitutional because it did not include an exception when the girl’s health is threatened. That went too far, O’Connor wrote.

“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” she said. “We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force … or to sever its problematic portions while leaving the remainder intact….

“Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem.”

The First Circuit, which is based in Boston, Mass., also decided the measure’s exception for a threat to the girl’s life was too narrow.

Pro-life leaders generally applauded the high court’s action.

“This amounts to a tie or postponement by inclement weather for the pro-life cause,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “That is not as good as a win, but it is sure better than a loss, and the parental notification act has lived to fight another day.”

Land commended the Supreme Court “for postponing its inevitable decision on this case until the court is reconstituted” with Alito replacing O’Connor.

“The fact that this was a unanimous decision written by Justice O’Connor indicates the court was uncomfortable making what at best would be an interim decision, given the changing nature of the court with Justice O’Connor’s retirement,” Land told Baptist Press. “Whichever side loses this case that has now been sent back to the lower court, it will appeal back to the new Supreme Court with Justice Alito instead of Justice O’Connor providing the potential swing vote.”

The decision was “one small step in the right direction,” said Clarke Forsythe, senior attorney for Americans United for Life.

The high court chose to rein in “overreaching federal courts,” Forsythe said in a written statement. “But the court ignored a prime opportunity to clean up the mess it has made in the last 14 years of abortion jurisprudence.”

At least some abortion rights advocates remained hopeful the law would not survive. “We continue to believe that the lower court will recognize [the legislature left out a health exception on purpose] and strike down the law in its entirety,” said Jennifer Dalven, the ACLU attorney who argued against the measure before the Supreme Court in November.

Some observers suggested the Jan. 18 opinion might be O’Connor’s last after more than 24 years on the high court. The Senate Judiciary Committee is scheduled to hold a vote on Alito Jan. 24, and debate in the full chamber on his confirmation is expected to begin immediately thereafter.

O’Connor, 75, was the swing vote in a 2000 decision that struck down Nebraska’s ban on partial-birth abortion.

A nominee of President Reagan, she was the first woman to serve on the Supreme Court.

The case returned to the First Circuit is Ayotte v. Planned Parenthood of Northern New England.