Back to Back Supreme Court Decisions -- Part 1

Back to Back Supreme Court Decisions -- Part One

This edition of TN&V has two parts. The first discusses Wednesday's unanimous Supreme Court decision in the Ayotte case that tested New Hampshire's parental notification law. The second, written by Burke Balch, JD, will help us understand Tuesday's 6-3 decision which held that the Attorney General does not have authority to prevent the use of federally controlled drugs to assist in suicides (Gonzales v. Oregon).

I am neither a lawyer nor a soothsayer. Thus, I will not pretend either to fully explain all the nuances of the parental notice case or to predict the future. (As for the issues raised by the Court in Gonzalez, they are --as Wesley J. Smith observed--"mind-numbingly arcane.")

Let me begin with some background. The Ayotte v. Planned Parenthood of Northern New England decision was written by retiring Justice Sandra Day O'Connor. With Judge Samuel Alito, Jr. widely expected to be confirmed as her successor, Ayotte is likely the last opinion--dealing with abortion or anything else-- written by O'Connor, who has been on the High Court since 1981.

New Hampshire passed its parental notice law in 2003, after a knock down, drag out fight. The measure requires that no abortion be performed on a minor until 48 hours after written notice has been given to a parent.

The law also provides for a judicial bypass. At such a hearing, the girl tries to persuade a judge that she is mature enough to give informed consent to an abortion or that having an abortion without notifying her parent[s] is in her "best interests."

Thanks to an immediate challenge, the law never went into effect. For slightly different reasons both the District Court and the Court of Appeals for the First Circuit struck the law as unconstitutional. The Supreme Court heard oral arguments November 30, 2005.

O'Connor's initial paragraph suggests where she is going in what amounts to a very short opinion (ten pages). "We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."

Thus, O'Connor tells us, first, "States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy."

Second, she writes that the state of New Hampshire "does not dispute, and our precedents hold, that a State may not restrict access to abortions that are 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother.' "

Third, O'Connor writes, "New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health."

Thus, the issue is "remedy." O'Connor writes, "In this case, the courts below chose the most blunt remedy--permanently enjoining the enforcement of New Hampshire's parental notification law and thereby invalidating it entirely."

She then makes a distinction between this New Hampshire case and the Nebraska partial-birth abortion law at issue in Stenberg v. Carhart, a statute the Court gutted for (among other reasons) the absence of a health exception. "[T]he parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn," O'Connor writes.

Speaking for all nine justices, O'Connor concludes, "In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale." She adds, "Only a few applications of New Hampshire's parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application."

How that works out in practice with New Hampshire's law will not be known for some time. To begin with, the Court of Appeals could address a separate challenge to the confidentiality provision of the judicial bypass, which plaintiffs went after as well.

But what is the possible wider application? As I say I am not a lawyer, so I will be very general in my observations.

In a footnote, O'Connor observes that 38 of the 44 states with some form of parental involvement law have "explicit exceptions for health or medical emergencies." In the same footnote, she writes, "Two States give physicians sufficient discretion to perform an abortion to protect minors' health.'"

Together, this would seem to suggest that all parental involvement laws would require a health exception encompassing enough for emergency situations. O'Connor argues that the effect of this exception would be very limited ("In some very small percentage of cases") and seems to be signaling the language she would okay (immediate abortions "to avert serious and often irreversible damage to their health").

But there are two considerations to keep in mind. First, Justice O'Connor will soon be off the bench. Second, because the Supreme Court declined to rule, the door is still open to closing a broad medical emergency loophole in the parental involvement laws that are in effect in other states.

Another important consideration was brought up by Lyle Denniston, Writing on Scotusblog.com, he observes, "Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges' authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly." You can read the opinion in its entirety by going to http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/000/04-1144.html.

We will have a much fuller explanation and analysis in the February issue of National Right to Life News. If you are not a subscriber, please call us at 202-626-8800, ext. 128.

If you have any comments please send them to Dave Andrusko at dandrusko@nrlc.org.

Part 2