Background to Pro-Abortion Challenge to New Hampshire Parental Notice Law
BY Dave Andrusko

On November 30, the United States Supreme Court, under its new Chief Justice John Roberts and including in-limbo Justice Sandra Day O'Connor, heard Ayotte v. Planned Parenthood. This challenge to New Hampshire's 2003 parental notice law is the first abortion case the justices have heard since they crushed Nebraska's ban on partial-birth abortions in Stenberg v. Carhart, five years ago, on a 5–4 vote.

The American public does, always has, and always will strongly support parental involvement in the abortion decisions of their minor daughters. A November 2005 Gallup poll shows 69% support among Americans for parental consent. (Parenthetically, 64% agree that husbands should be notified if their wives are contemplating an abortion.)

As we have discussed numerous times in National Right to Life News, Ayotte raises two issues of potentially huge significance. But to understand what they are and why they are important, we need some background.

Traditionally, when it comes to planting protective abortion statutes, New Hampshire's legislative soil has proven almost impenetrable. But through a series of almost miraculous events, made possible by remarkable pro-life diligence, in 2003 the state passed its first significant pro-life legislation ever. (For a great blow-by-blow account, go to http://www.nrlc.org/news/2003/NRL06/nh.htm.)

What would the law--which, alas, never went into effect--do? It states that an abortionist 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-Gov. Craig Benson in June 2003, was to take effect that 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. The law contains a judicial bypass by which minors can avoid telling their parents by going to a judge.

The two important questions raised have to do, first, with whether New Hampshire and, by extension, all states, must include a "health" exception in parental notice laws. The second is mind-numbingly complex, but basically comes down to how easily pro-abortionists can prevent an abortion statute from ever taking effect by raising the specter of a "parade of horribles."

To understand the debate over the health exception, remember that New Hampshire's law almost perfectly tracks Minnesota's parental notice law (except that only one parent need be notified). That law the Supreme Court upheld in the 1990 case of Hodgson v. Minnesota. What has Minnesota's experience been?

As a "friend of the court" brief written for a number of current and former New Hampshire state legislators by Prof. Teresa S. Collett explains, "Notwithstanding the absence of a health exception in the Minnesota statutes, there is no evidence of any harm to Minnesota minors in the fifteen years the statute has been in effect."

Pro-abortionists insist that there is no provision in New Hampshire's law for medical emergencies. Not so, says Mary Balch, NRLC's director of state legislation, not so at all.

"The recent claim made by pro-abortion activists that the law doesn't contain a medical emergency exception is a red herring," she says. The law does not preclude a doctor from treating any medical emergencies and does contain an exception allowing immediate abortions for life-threatening medical emergencies. In other situations, Balch explained, a parent of the minor girl would have to be notified or a judicial bypass obtained before an abortion is performed.

"When a minor daughter confronts a medical emergency, she needs her parents most," Balch said. "As knowledgeable doctors have briefed the Supreme Court, an immediate abortion would not be appropriate treatment for any non-life-threatening complication of pregnancy."

Then there is the "standard of review" issue, which, again, requires considerable background. There are three competing answers to the question of how/whether a law can be stopped in its tracks before it ever goes into effect (called a "facial" challenge). (See also pages 1-2, 21-22)

The High Court summarized its standard for "assessing a pre-implementation facial challenge to a validly enacted statute" in the 1987 case of U.S. v. Salerno, according to Collett. Under Salerno, the plaintiff must show that "no set of circumstances exists under which the Act would be valid."

This standard, although not originally formulated in an abortion case, "has been applied by the Court to the regulation of abortion a number of times," according to Collett.

A second standard emerged in the 1992 Casey decision. Without explicitly overturning Salerno--indeed, without even mentioning it--the Court invoked the "undue burden" standard--whether a statute unduly burdens a woman's right to abort in a "large fraction" of the cases involving the statute's application.

Standard number three cropped up in the 2000 Stenberg v. Carhart case. Justice Breyer (writing for the majority) turned Salerno on its head: "Nebraska has not convinced us that a health exception is 'never necessary to preserve the health of a woman.'"

Instead of the plaintiff having to show that no set of circumstances exist under which the law is constitutional, now the state legislature has to prove that there is not a single instance in which the law is unconstitutional. And just as Salerno is not explicitly overturned (or even mentioned) in Stenberg, there is no reference to Casey's standard requiring the plaintiff to show that the statute operates unconstitutionally in a "large fraction" of cases.

Lower courts have split on which standard to apply. Prof. Collett quotes Seventh Circuit Court of Appeals Judge Frank Easterbrook, who wrote, "This leaves us with irreconcilable directions from the Supreme Court ... .When the justices themselves disregard rather than overrule a decision--as the majority did in Stenberg and the plurality did in Casey--they put courts of appeal in a pickle."

Prof. Collett points out that the Courts of Appeals for the 5th, 9th, and 10th circuits "have interpreted Stenberg v. Carhart ... as creating a per se requirement of a health exception to parental involvement laws." But, she argues, unlike Stenberg, none of the cases to which the three courts of appeal applied Stenberg (nor New Hampshire's parental notice law) bans an abortion procedure, which is what the High Court said Nebraska's partial-birth abortion ban did.

Moreover, parental involvement laws "promote the health and safety of minors," which the High Court acknowledged as far back as the 1979 case of Bellotti v. Baird. Parental involvement laws "obviously do not purport to ban abortions but simply seek to promote the interest of minors in having the benefit of parental involvement," Collett writes. These interests were not involved in Stenberg.

The irony is that while Casey acknowledged that the Court had previously gone "too far" by "striking down ... abortion regulations which in no real sense deprived women of the ultimate decision," the lower courts, Collett writes, "are now rendering decisions that place even more restrictions on states than that in the pre-Casey era."

In Ayotte, the Supreme Court is being asked to clear up what it has muddied. This is dicey in any set of circumstances, but even more so when Justice O'Connor remains on the court until a successor is confirmed.

Whether Justice O'Connor's vote factors in on this or any case depends on timing. Her vote counts only if the decision is publicly disclosed while she is on the Court.

Under Court rules, if she departs before the decision in the case is announced--and her absence leaves the vote at 4–4--the justices have the option of rehearing oral arguments.

O'Connor has already heard arguments in Gonzales v. Oregon. This case asks the justices to decide whether legalized assisted suicide in Oregon must be facilitated by allowing federally controlled drugs to be used to kill people if such killing is not prohibited by state law.

For more about Ayotte v. Planned Parenthood, see the other story that begins on page one, the editorial on page two, and excerpts from various friend-of-the-court briefs which begin on page 21.