Matters of Consequence: The Supreme Court Hears First Abortion Case in 5 Years

Should teenage girls have to notify their parents before getting an abortion? What if the pregnancy is an extreme health risk to the mother?

A contentious New Hampshire law requires teen girls to inform their parents 48 hours before getting an abortion, but does not include a health exception to protect the mother. The debate is over how to treat a teenager whose health is in danger and who cannot wait 48 hours for the procedure. New Hampshire is one of only five states that does not provide a heath exception out of 44 states total that have parental-notification laws.

Two days before the law went into effect, Judge Joseph A. DeClerico Jr. of the Federal District Court in Concord, N.H., issued an injunction to block it. The judge agreed with the doctor and three abortion clinics that brought him the case - the entire act was unconstitutional if it did not include a health exception.

Attorney General of New Hampshire, Kelly A. Ayotte appealed the decision, which was upheld by the United States Court of Appeals for the First Circuit in Boston. Ms. Ayotte then appealed to the Supreme Court.

Case consequence

This case is important for several reasons. First, Americans are anxious to see how new Chief Justice John G. Roberts, Jr. will rule in an abortion case, and how he will conceive of the health exception, which is an important consideration in the "partial-birth"abortion debate. Second, the case may settle the question of whether federal courts may block abortion restrictions that have not yet gone into effect.

In order to challenge a law before it has taken effect - through a procedure known as a "facial challenge" - the plaintiff must show that the law would be unconstitutional in all situations. The Bush administration has joined Ms. Ayotte in arguing that the New Hampshire law should not have been blocked on its face. They argue that this law would be applicable 99 percent of the time, since emergency abortions are rare.

Ms. Ayotte has argued that the law should be applied before it is challenged in what is known as an "as-applied" challenge.

But Jennifer Dalven, a lawyer for the American Civil Liberties Union (ACLU) who is representing the doctor and abortion clinics, says that a woman’s life should not be threatened or even lost before the constitutionality of the law is considered.

The Supreme Court weighs in

So far, the justices seem to agree that laws regulating abortion should include a health exception. But they don’t agree on what to do about the New Hampshire law. Justice Steven G. Breyer considered simply adding the health exception as opposed to overturning the entire statute, but Ms. Dalven was concerned about the precedent that could set: "I think there is real cause for concern about rewriting this law for New Hampshire. If this court said that that’s the proper course, I believe that the federal judiciary will be faced with rewriting abortion law after abortion law after abortion law."

Justices Ruth Bader Ginsburg and Sandra Day O’Connor thought about simply sending the case back to the lower court and requiring a more specific ruling. Justice Ginsburg asked, "Why wasn’t that the appropriate judgment for the First Circuit to have entered in this case, to say the statute’s fine for non-emergency cases, but for emergency cases there is effectively no law?"

Chief Justice Roberts agreed that the First Circuit’s ruling was too general, but thought an entirely new lawsuit might be in order. "What is wrong with a pre-enforcement challenge by physicians?," he asked Ms. Dalven, "Why should you be able to challenge the act as a whole if your objection is so narrowly focused?"

Indeed, the ACLU is opposed to parental notification laws in general, not simply to the absence of a health exception. The ACLU, Planned Parenthood, and other abortion-rights groups hope the Court will completely overturn the statute.

At issue

The immediate issue is that of the health exception for the mother. If the Court rules that the exception must be included in abortion law, then it would be likely to rule against Congress’ federal ban on what opponents call "partial-birth" abortion.

Congress passed the ban in 2003, but it has not been enforced since federal courts across the country have found it unconstitutional for its lack of a health exception. The Bush administration wants to reinstate the federal ban, but the Supreme Court has not yet decided whether to hear their appeal. For more on this issue, click here.

The Court struck down an almost identical law in 2000, so it may very well reject the case. Check back with WomenMatter to find out.

What do you think?

Notice that this case is not a challenge to Roe v. Wade or about whether a woman has the constitutional protection to make her own decision. It is not pro-choice vs. pro-life. It is about the legislature tinkering with the specifics in one kind of situation - a pregnant teenager in a medical emergency.

Critical is a broader procedural question about the court system. If the Supreme Court simply adds a health exception to the law, would it be creating policy and therefore overstepping its bounds? Should the lower courts be required to go back and make a more specific ruling? When you answer these questions are you thinking about how laws are made and how they can be changed or are you thinking about abortion or about privacy or about a practical medical situation? You decide for yourself and then stay tuned to WomenMatter for what issue the individual judges will decide is the main one.

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Update Posted on: 12/4/2005