Supreme Court to Hear
First Abortion Case
in 5 Years
By LINDA GREENHOUSE,
NYTimes on the Web, November 29, 2005
WASHINGTON, Nov. 28 -- When
the Supreme Court meets on Wednesday to hear its first abortion case in five
years, the topic will be familiar: a requirement that doctors notify a
pregnant teenager's parent before performing an abortion.
The court has upheld such laws for years, even in its more liberal days, and
nearly all states now have them. But in the current climate, with the
court in transition and the abortion debate as raucous as it has ever been,
there is no such thing as just another abortion case. As reflected in
dozens of briefs filed on both sides, interest in this new case, from New
Hampshire, is extremely high.
And in fact, the case raises two questions with broader implications for the
future of abortion.
One is how flexible a restriction on access to abortion must be when a woman's
pregnancy poses a threat to her health. New Hampshire imposes a 48-hour
waiting period after the required notice to at least one parent. Like all
states, it provides an exception for conditions that present an immediate threat
to a pregnant teenager's life.
But of the 43 states with parental-involvement statutes, New Hampshire is one of
only five that do not also provide an exception for non-life-threatening medical
emergencies, and it was on this basis that two lower federal courts declared the
law unconstitutional.
The Supreme Court's decision in the case, Ayotte v. Planned Parenthood of
Northern New England, may therefore shed light on the contours of the
"health exception" that the court's abortion precedents have required since Roe
v. Wade in 1973.
The second question, while seemingly quite technical, has perhaps even broader
implications. The issue is under what circumstances federal courts can
continue to do what they did in this case and in many other abortion cases:
bar the enforcement of abortion restrictions that have not yet gone into effect,
and so cannot be said to have injured any specific plaintiff.
Waiting in the wings, as the justices surely know, is another, perhaps even more
highly charged abortion case. The Bush administration recently filed an
appeal in defense of the federal ban on the procedure that abortion opponents
have labeled "partial birth abortion," and the court must decide shortly whether
to hear it.
That law, passed in 2003, has never taken effect. Federal courts around
the country have declared it unconstitutional for lack of the health exception
that the Supreme Court said was essential when it struck down a nearly identical
Nebraska law in 2000. In passing the federal ban, Congress took account of
that ruling by declaring that a health exception was superfluous because the
procedure was, in its view, never medically necessary.
When the New Hampshire legislature was debating whether to enact a parental
notification law in 2003, some legislators cited the Supreme Court's 2000 ruling
in the Nebraska case, Stenberg v. Carhart, to argue that the measure
needed a health exception. But the bill's sponsors resisted including one
on the ground that it would offer doctors too big a loophole for avoiding
parental involvement.
Without the health exception, the bill passed the State Senate by a vote of 12
to 11 and the House by a vote of 187 to 181. It was signed into law by the
state's Republican governor, Craig Benson. John H. Lynch, the Democrat who
defeated him in last November's election, opposes the law and has filed a brief
in the Supreme Court urging the justices to declare it unconstitutional.
The state's attorney general, Kelly A. Ayotte, a Republican, has pursued the
appeal under her office's independent litigating authority and will argue the
case herself.
On Dec. 29, 2003, two days before the law was to take effect, Judge Joseph A.
DeClerico Jr. of Federal District Court in Concord, N.H., issued an injunction
barring its enforcement. Ruling in a lawsuit brought by three abortion
clinics and a doctor, the judge said the law's lack of an exception for medical
emergencies "renders the entire act unconstitutional."
Judge DeClerico said further that the option of seeking permission for an
abortion from a judge, an alternative the Supreme Court has insisted on in
parental-involvement statutes, was time-consuming and therefore insufficient "on
its face" to protect a girl in a medical emergency. A three-judge panel of
the United States Court of Appeals for the First Circuit, in Boston, unanimously
upheld the ruling last November.
In their Supreme Court briefs, Ms. Ayotte and the Bush administration, which
entered the case as a "friend of the court" to defend the statute, are arguing
that the lower courts should never have entertained an attack on the law "on its
face" in the first place. The origins of this argument lie in the
distinction between a challenge to a statute that has not yet gone into effect,
sometimes referred to as a "facial" or "pre-enforcement" challenge, and a
lawsuit filed to overturn a statute that is currently operating, often known as
an "as-applied challenge."
Before invalidating a law on its face, the Supreme Court generally requires the
plaintiff to show that the law would be unconstitutional in all possible
applications. There are few exceptions, and abortion has been one of them.
In Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, the
court ruled in a facial challenge to a law requiring married women to notify
their husbands before obtaining an abortion, and declared the law
unconstitutional.
Even if the law "poses almost no burden at all for the vast majority of women
seeking abortions," the majority said, it did pose a "substantial burden" on a
"large fraction" of women for whom it was relevant, namely those who feared the
consequences of notifying their husbands, and was therefore invalid on its face.
The Bush administration argues that with the exception of spousal notice, all
other abortion issues should await as-applied challenges, a position the
plaintiffs in the New Hampshire case describe as "callous." Their brief
says "it would preclude courts from granting any relief at all until faced with
a woman in crisis."
With the exception of Roe v. Wade itself -- "Jane Roe" was actually
pregnant when she challenged the longstanding Texas law that made abortion a
crime -- most abortion precedents on the books began as facial challenges.
A rule that women must wait until new restrictions actually take effect would be
a substantial change in the way abortion cases are litigated.
On the question of a health exception, Ms. Ayotte and the Bush administration
assert that the New Hampshire law's authorization for judges to act immediately
in medical emergencies obviates the need for an explicit health exception.
If the justices agree, they need not discuss the health issue further. But
the plaintiffs argue that it would amount to judicial activism for the Supreme
Court to interpret the law to provide the equivalent of a health exception when
the law's sponsors made it clear that they did not intend to provide one.
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