U.S. Supreme Court Agrees To Hear Appeal Regarding Constitutionality of N.H. Abortion Parental Notification Law

Main Category: Abortion
Article Date: 25 May 2005 - 11:00 PDT

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The US Supreme Court on Monday agreed to hear an appeal regarding the constitutionality of a New Hampshire abortion parental notification law, which was struck down by a lower court because it lacks an exception for a pregnant minor's health, the... Washington Times reports (Wetzstein, Washington Times, 5/24). Former New Hampshire Gov. Craig Benson (R) in June 2003 signed the measure (HB 763), which would have required physicians in the state to notify by certified letter a parent or guardian of a minor who is seeking an abortion at least 48 hours before performing the procedure. Under the measure, parents would not have been able to forbid the procedure and the notification requirement could have been bypassed by a judge or if a doctor determines that the minor's life is in danger. Planned Parenthood of Northern New England, the American Civil Liberties Union, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth and Manchester, N.H.-based OB/GYN Wayne Goldner in November 2003 filed the lawsuit challenging the constitutionality of the notification law (Kaiser Daily Reproductive Health Report, 11/30/04).

Arguments
The 1st Circuit Court of Appeals in a November 2004 ruling upholding the lower court's ruling striking down the New Hampshire parental notification law said the law presents an undue burden to minors seeking abortion because it lacks a health exception, Knight Ridder/Salt Lake Tribune reports. In 1992, the Supreme Court ruled in Planned Parenthood v. Casey that laws restricting abortion rights must not present an undue burden on a woman's right to obtain an abortion (Henderson, Knight Ridder/Salt Lake Tribune, 5/24). However, New Hampshire Attorney General Kelly Ayotte (R) in her appeal to the Supreme Court argues that the court should apply a different standard in ruling on the constitutionality of the parental notification statute, the New York Times reports. Ayotte says the court should not issue injunctions preventing laws from taking effect unless "no set of circumstances exists under which the act would be valid," according to the New York Times. Ayotte says this standard was applied in the 1987 Supreme Court ruling in United States v. Salerno, which was not related to abortion rights (Greenhouse, New York Times, 5/24). Most federal courts for the past 15 years have applied the Supreme Court's undue burden standard for ruling on the constitutionality of abortion-related laws, but the 5th Circuit Court of Appeals has used the "no set of circumstances" standard being argued by Ayotte, according to the Baltimore Sun (Gibson, Baltimore Sun, 5/24).

Next Steps
The Supreme Court's decision to hear the case -- Ayotte v. Planned Parenthood -- does not present a direct challenge to the abortion rights recognized under the court's 1973 Roe v. Wade decision that struck down state abortion bans, the Washington Post reports (Lane, Washington Post, 5/24). The Supreme Court last ruled on an abortion-related issue in the 2000 Sternberg v. Carhart case in which the court struck down a Nebraska law banning so-called "partial-birth" abortion because the law lacked a health exception, the Boston Globe reports (Saltzman, Boston Globe, 5/24). Six of the nine justices on the Supreme Court have voted to uphold abortion rights, although Justice Anthony Kennedy has at times voted with three other justices to uphold abortion restrictions, according to the Los Angeles Times (Savage, Los Angeles Times, 5/24). The court is not expected to rule on the case until mid-2006, according to the Post (Washington Post, 5/24). In addition, the law might be "short-lived" even if the Supreme Court rules that it is constitutional because New Hampshire Gov. John Lynch (D), who took office in January, has said he will try to have it repealed, according to the AP/Portsmouth Herald (Webster, AP/Portsmouth Herald, 5/24).

Reaction
Karen Pearl, interim president of Planned Parenthood Federation of America, said, "We are surprised and disappointed the Supreme Court has decided to hear this case," adding, "Yet we are confident that this court will reaffirm a woman's right to abortion access. States should never put women's health at risk" (PPFA release, 5/23). NARAL Pro-Choice America President Nancy Keenan said, "We have a closely divided court, and the risk to women's health and freedom really underscores what's going on on (Capitol) Hill right now." Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project, said that the case would "put to rest any lingering question about whether a woman's right to abortion is entitled to full constitutional protection." However, Teresa Collett, a law professor at the University of St. Thomas School of Law, who filed a brief in the case, said that a ruling "supporting the rights of parents to be involved with their young daughters" would not be an outcome most U.S. residents would oppose, according to the Chicago Tribune. Jay Sekulow, chief counsel for the American Center for Law and Justice, said the Supreme Court has a "very important opportunity" to make sure that parents are "informed about the health of their children -- especially when it comes to abortion" (Crawford Greenberg, Chicago Tribune, 5/24). Roger Stenson, executive director of Citizens for Life, a group that lobbied for the New Hampshire law, said the health exception would have been a "truck-sized loophole" in the law, adding, "It was created in the original ruling in 1973 and it was written in such broad language that it included everything -- social, emotional, even financial considerations -- that could affect a woman's 'well-being'" (Henderson, Newark Star-Ledger, 5/24).

ABCNews' "World News Tonight" on Monday reported on the Supreme Court's decision to hear the case. The segment includes comments from Sekulow and Marcia Greenberger, co-president of the National Women's Law Center (Cochran, "World News Tonight," ABCNews, 5/23).

NBC's "Nightly News" on Monday reported on the Supreme Court's decision. The segment includes comments from Pearl and Sekulow (Williams, "Nightly News," NBC, 5/23). The complete segment is available online in Windows Media.

"Reprinted with permission from kaisernetwork.org kaisernetwork.org. You can view the entire Kaiser Daily Reproductive Health Report, search the archives, or sign up for email delivery at www.kaisernetwork.org/dailyreports/repro The Kaiser Daily Reproductive Health Report is published for kaisernetwork.org, a free service of The Henry J. Kaiser Family Foundation . © 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.

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