Supreme Court Unexpectedly Agrees to Hear Notification Case  

By Dave Andrusko

WASHINGTON (May 23)—With a simple one-line order, the United States Supreme Court agreed to hear Ayotte v. Planned Parenthood of Northern New England, a challenge to New Hampshire’s 2003 parental notification law. The justices will hear oral arguments next term, which begins in October.

   Depending on whom you read, the first abortion case heard by the  High Court in five years is either much ado about nothing or potentially a case in which the justices can evaluate several important issues.

   That law survived a Perils of Pauline-like plot to narrowly win passage in 2003. Under the statute, abortionists may not perform an abortion on a minor until “at least 48 hours after written notice of the pending abortion” has been delivered to one of her parents.

   The law makes an exception when the minor’s life is in imminent danger and provides a judicial bypass by which minors can avoid telling their parents by going to a judge.

   The measure never went into effect. The law was ruled to be unconstitutional by a federal judge in Concord and by the First U.S. Circuit Court of Appeals in Boston last November. Both cited what they said was the absence of an explicit exception to protect the mother’s health.

   The law was closely modeled on the Minnesota law that was upheld by the Supreme Court in Hodgson v. Minnesota (1990). The Court’s decision puzzled proponents on both sides of the issue, since the justices have not seemed to be overly eager to enter the abortion fray unless absolutely required.

   Proponents of an explicit health exception make two interrelated arguments. First, they cite the Supreme Court’s 1992 Planned Parenthood v. Casey decision. They argue that Casey requires a health exception.

   As the case worked its way up to the High Court, the state of New Hampshire argued that the law in most instances raised no constitutional concern. In her petition, New Hampshire Attorney General Kelly A. Ayotte said that if a minor girl faces a health emergency, she can ask a judge to waive the notification requirement.

   Proponents also cite Casey’s standard for determining an abortion statute’s constitutionality: whether it imposes “undue burden.”

   The First Circuit drew from Casey the lesson that an abortion law is “unduly burdensome” if virtually any women in any circumstances theoretically might be affected. In the case of the New Hampshire law, the First Circuit concluded that the 48-hour requirement posed an undue burden on a large fraction of a tiny percentage of women whose membranes might prematurely rupture.

   Attorney General Ayotte argued that the law should not be struck down “on its face”—before it has ever even gone into effect. She maintained that the courts should have applied a less demanding standard, under which courts don’t issue injunctions against laws that have not gone into effect unless “no set of circumstances exists under which the act would be valid.” This standard comes from a 1987 case (United States v. Salerno) that did not involve abortion.

   According to Mary Balch, NRLC’s director of state legislation, while the First Circuit concluded Casey overturned the Salerno case, other federal appeals courts have not.

   “It’s not surprising that the Supreme Court would accept this case, because we have a conflict among the courts about which standard to apply,” Balch said. “Where there is conflict, there is chaos.”

   The New Hampshire law enjoyed strong support. Then-governor Craig Benson (R) was instrumental in the bill’s remarkable passage.

   However, the current governor, John Lynch (D), wants to repeal the law. “Gov. Lynch disagrees with the policy and disagrees with the use of state resources to appeal a bad law that two federal courts have already found unconstitutional,” spokeswoman Pamela Walsh told the Associated Press (AP).

   According to Walsh, “Lynch expressed concern about the appeal several months ago to Attorney General Ayotte, who was appointed by Benson.” But in New Hampshire, the attorney governor is independent, and Ayotte pursued the appeal.

   “We believe that it’s our constitutional obligation to defend a duly passed law,” a spokesman for Ayotte told the AP. “We’ve got a long-standing tradition of doing that, at least as far back as when Justice [David] Souter was the attorney general here.”