Supreme Court to Hear Ayotte Case November 30

By Dave Andrusko

   November 30 has been set as the date for the United States Supreme Court to hear Ayotte v. Planned Parenthood of N. New. England. In Ayotte, the newly constituted Court will hear the challenge to New Hampshire's 2003 parental notification law.

   The measure, which enjoyed widespread bipartisan support, requires that abortionists may not perform an abortion on an unemancipated minor until "at least 48 hours after written notice of the pending abortion" has been delivered to one of her parents. This requirement is waived if the "attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide required notice."

  The law, signed by then Governor Craig Benson in June 2003, was to take effect in December. However, in November, Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and a private physician successfully filed a complaint with the United States District Court for the District of New Hampshire for a declaratory judgment that the act was unconstitutional and an injunction to prevent its enforcement once it was to become effective.

   Last November the First U.S. Circuit Court of Appeals in Boston agreed with the lower court. Both cited the absence of an explicit exception to protect the mother's health. As required by prior Supreme Court decisions, the law also contains a judicial bypass by which minors can avoid telling their parents by going to a judge.

   The law was closely modeled on the Minnesota law upheld by the Supreme Court in Hodgson v. Minnesota (1990). The law has saved many lives.

    "Secret abortion on minors is child abuse," Citizens for Life executive director, Roger Stenson told NRL News. "This law was passed to protect our daughters from abortionists. Parental notice removes the wall, erected by government inaction that blocks minor girls from receiving the counsel of their parents at a time when it is most needed."

   There are two important questions raised by Ayotte. First, must a parental notice law include a "health" exception, which Stenson calls a "truck-sized loophole."

   Second, what is the standard pro-abortion forces must meet to prevent a law from going into effect. (This is called a "facial challenge"--contesting a law on its face--as opposed to challenging a law after it has gone into effect--known as the "as applied" standard.)

   With respect to the latter question, New Hampshire Attorney General Kelly Ayotte argues the law should go into effect unless "no set of circumstances exists under which the act would be valid." This was the standard the Supreme Court applied in the 1987 case of United States v. Salerno, which did not involve abortion. At least one appeals court-–the 5th Circuit Court of Appeals–-has used the "no set of circumstances" standard being argued by Ayotte.

   By contrast, pro-abortionists want to be able to stop a law in its tracks by using the Supreme Court's standard in the 2000 Stenberg v. Carhart case–essentially, that a law is unconstitutional on its face if virtually any woman is affected.

   There is actually a third possible standard which has received little attention. In the 1992 Casey decision, Justice Sandra Day O'Connor argued that a law creates an undue burden if in a "large fraction" of the cases the law "will operate as a substantial obstacle to a woman's choice to undergo an abortion."

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