Supreme Court to Hear Parental Notification Case
BY Dave Andrusko

When the Supreme Court, under its new Chief Justice John Roberts, hears Ayotte v. Planned Parenthood of Northern New England, the justices will not only be hearing their first abortion case in five years but also will find themselves in the unusual position of having a member on the bench who has already announced her retirement.

To the surprise of almost everyone, Associate Justice Sandra Day O'Connor, a tried and true supporter of abortion, announced on July 31 that she was stepping down after 24 years on the High Court.

President Bush first selected John Roberts to replace O'Connor, but when Chief Justice William Rehnquist died, Mr. Bush nominated Roberts to take Rehnquist's place. The Senate subsequently confirmed Roberts as the nation's 17th Chief Justice by a vote of 7822.

Harriet Miers, the president's next choice to replace O'Connor, stepped down October 27, citing the requests from senators for documents from her service in the White House. "I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process."

Four days later President Bush nominated U.S. Appeals Court Judge Samuel Alito, Jr. However, if confirmed, Judge Alito would not assume his position until late 2005 or early 2006.

Whether Justice O'Connor's vote factors in on 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.

The High Court will hear Ayotte on November 30. There are two important questions raised by Ayotte. First, must a parental notice law include a "health" exception, which Citizens for Life executive director Roger Stenson calls a "truck-sized loophole."

Second, essentially, is how easy should it be for pro-abortionists to halt a newly enacted abortion statute before it ever goes into effect (this is called a "facial challenge")?

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.

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

The New Hampshire law, 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 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.

A year ago this month, 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.