WASHINGTON (ABP) — As the Supreme Court took up its first major abortion case in five years Nov. 30, attention focused on the body's shifting membership and what that might mean for abortion rights in the future.
During oral arguments in Ayotte v. Planned Parenthood of Northern New England, newly installed Chief Justice John Roberts appeared sympathetic to New Hampshire's efforts to defend a 2003 state law that requires medical personnel to notify parents or guardians 48 hours before their minor daughters can undergo abortion procedures. Lower courts had declared the law unconstitutional.
But the real question over the case lies with someone who isn't on the court yet — President Bush's pick to replace retiring Justice Sandra Day O'Connor — and Justice Anthony Kennedy, who could cast the decisive vote in the case if O'Connor leaves before the case is decided.
Bush has chosen a federal appellate judge, Samuel Alito, to replace O'Connor, who generally has been supportive of abortion rights. Writings from Alito's past as a government lawyer — including one publicized the same day as the arguments — strongly suggest he is not sympathetic to the idea that the Constitution protects a woman's right to have an abortion.
Although the current case does not directly address that basic right, abortion-rights groups fear it could offer a new anti-abortion majority on the court the chance to chip away at precedents upholding the constitutionality of a woman's right to choose.
In 2000, a closely divided Supreme Court said a restriction on a woman's right to choose an abortion would have to contain an exception for abortions performed to protect a woman's life or health. The court also has upheld the necessity of such exceptions in other cases following its landmark 1973 Roe v. Wade decision, which legalized abortion nationwide.
In the latest case, an abortion-rights group challenged the New Hampshire law because it does not contain an exception for the health of the minor.
The 1st U.S. Circuit Court of Appeals struck the entire statute down, citing the high court's 2000 Stenberg v. Carhart decision as well as other abortion opinions requiring health exceptions in laws restricting abortion rights.
But New Hampshire's attorney general appealed the circuit court's ruling, arguing not only that state law already contains sufficient safeguards to protect the health of abortion-seeking minors, but also that the lower courts should not have invalidated the entire law simply because of its lack of an explicit health exception.
Arguing her state's case before the court, New Hampshire Attorney General Kelly Ayotte repeatedly called “rare” the circumstances under which a minor would need an abortion to protect her health. In such cases, she said, there are sufficient safeguards already in place to ensure that a minor can undergo the procedure.
For instance, the law contains a judicial-bypass feature that allows the girl and her physician to obtain permission for the abortion from a judge if her parents are not reachable or she fears retribution from them if they discovered she was pregnant.
“New Hampshire's act can be applied to protect a woman's health,” she told the justices.
But several of the justices appeared skeptical of that argument, including Kennedy, who wondered aloud how the law can be construed to protect a woman's health when the narrow majority of state legislators who passed it in 2003 explicitly chose not to include such an exception.
“We need to know what the act says,” Kennedy told Ayotte.
Likewise, Justice Stephen Breyer subjected Ayotte to sharp questioning when she said other provisions of New Hampshire law designed to balance “competing harms” would protect physicians charged with performing emergency abortions on minors.
Breyer raised the hypothetical situation of a young woman in an emergency situation who needs an abortion to protect her health — but some may decide that the harm to the fetus outweighs any potential harm to the mother. “There are people of good faith on both sides of this argument, so how do we know that that statute is going to do for this particular woman what [an explicit] health exception is going to do?” he asked.
Roberts appeared sympathetic to New Hampshire's other argument, which was echoed by Solicitor General Paul Clement. Clement argued for the law's constitutionality on behalf of the Bush administration, saying there was no need for the lower federal courts to invalidate the entire statute because of the “one in a thousand” circumstance in which a minor must receive an abortion to protect her health before her parents can be notified and before a judge can grant permission in their stead.
But Jennifer Dalven, who argued the case on behalf of the law's opponents, said physicians hesitating to consult judges or consider their own legal fates before performing abortions could have dire consequences.
“Delaying appropriate care for even a short period can be catastrophic and can put the teen at risk for liver damage,” sterility, blindness and a host of other significant health consequences, Dalven told the justices. “For some women, every moment is critical.”
Dalven noted that New Hampshire has no system in place for emergency access to judges, and that the law also requires magistrates to weigh the evidence and make a reasoned decision before granting permission for the abortion.
“Once a minor arrives in the emergency room, it is too late for her to go to court,” she said.
The justices are likely to render a decision in the case by the time the court ends its 2005-2006 session next summer. If O'Connor has been replaced with Alito by then, the court may choose to re-hear arguments with its new member in place. If Alito and Roberts vote to uphold the law along with Scalia and Justice Clarence Thomas, while the four justices considered most supportive of abortion rights oppose the law — as some expect — then Kennedy would hold the tie-breaking vote.
The case is No. 04-1144.