Roberts Court Rewrites Abortion Law in New
Hampshire
LA Times
Roberts, Justices Find Abortion Case Accord
December 01, 2005
WASHINGTON — The Supreme Court justices seemed in surprising agreement
Wednesday on how to fairly resolve a New Hampshire abortion case without making
a major change in the law.
Chief Justice John G. Roberts Jr., hearing his first abortion case, led the
way in proposing a means to protect pregnant minors in cases of medical
emergencies while preserving the requirement that a parent be notified in
routine cases.
He said doctors could seek a court order that would allow them to quickly
perform an abortion in an emergency in which a girl's health was in danger.
Two years ago, New Hampshire lawmakers approved a measure requiring doctors
to notify a parent at least 48 hours before performing an abortion on anyone
younger than 18.
Most states have such laws, which the Supreme Court has upheld as
constitutional. New Hampshire included an exception for girls whose lives were
in immediate medical danger.
But New Hampshire included no exception for health emergencies that are not
necessarily life-threatening. Lawyers for Planned Parenthood and the American
Civil Liberties Union challenged the law as unconstitutional, and two lower
courts struck it down entirely because of this flaw.
Roberts proposed to fix the flaw and thereby save the law. And in response,
lawyers on both sides agreed with the idea of carving out an exception for
"medical emergencies." By the end of the hourlong argument, most of the
justices sounded as though they agreed as well.
"Why wouldn't [that solution] be entirely adequate to protect what you're
concerned about?" Justice Ruth Bader Ginsburg asked of ACLU lawyer Jennifer
Dalven.
"That would solve the constitutional problem in this case," Dalven
replied.
By narrowly focusing on the key issue, Roberts offered a way to defuse the
major abortion case facing the court this term.
It has been five years since the high court decided its last abortion case.
For that reason, the New Hampshire case gained extra attention.
It also threatened to reopen a divide among justices over how courts should
deal with disputed abortion regulations.
The legal briefs focused on this rather abstract issue: Should judges strike
down laws before they go into effect because they potentially are
unconstitutional in certain situations? Or should judges uphold the law and
wait until an actual plaintiff raises a specific objection?
Roberts' solution fell in between. It would carve out an exception in the
law to anticipate future situations.
Roberts was not alone in thinking of the more direct solution to the New
Hampshire case.
U.S. Solicitor General Paul D. Clement, representing the Bush
administration, had proposed a similar idea in a friend-of-the-court brief.
Clement repeated that argument Wednesday, saying that in most situations there
is nothing unconstitutional about requiring doctors to notify a girl's
parents.
"It's literally a 1-in-1,000 possibility" where a doctor must perform an
immediate abortion and cannot take the time to notify her parent, he said.
Throughout the hour, Roberts focused the lawyers on this narrow issue. It
was in keeping with his promise during confirmation hearings this year that he
would act cautiously and look for ways to uphold legislation.
New Hampshire Atty. Gen. Kelly A. Ayotte argued that the law should be
upheld as written. The law already included a "judicial bypass" under which a
girl needing an immediate abortion could ask a state judge for a waiver, she
said.
Suppose, said Justice Stephen G. Breyer, that a pregnant 15-year-old goes to
an emergency room at 2 a.m. with a medical condition that threatens her health.
What should the doctor do?
Ayotte replied that in this "rare circumstance" of a medical emergency, a
doctor could perform an immediate abortion and later defend himself from
prosecution by saying the medical welfare of the girl outweighed the need to
inform a parent.
Breyer and Ginsburg objected: Doctors should not face such prosecutions,
they said.
"What's wrong with a pre-enforcement challenge brought by the physicians?"
Roberts asked the ACLU's Dalven. "This is a problem that arises only in
emergency situations."
Ginsburg picked up on that point. "There would be no regulation of medical
emergencies," she told the ACLU lawyer, "and then you have no complaints about
the rest of the statute."
Six of the justices — John Paul Stevens, Sandra Day O'Connor, Anthony
M. Kennedy, David H. Souter, Ginsburg and Breyer — have voted to uphold a
right to an abortion. O'Connor has announced her retirement and will leave when
President Bush's next nominee wins confirmation by the Senate.
Two justices, Antonin Scalia and Clarence Thomas, want to repeal the right
to abortion set in 1973 in Roe vs. Wade.
The justices will meet privately to decide the case of Ayotte vs. Planned
Parenthood of Northern New England. The tenor of Wednesday's argument suggests
most of them will agree on a compromise that would preserve the law with a
medical-emergency provision.
'There Are People in Good Faith on Both Sides of This'
EXCERPTS FROM ORAL ARGUMENTS
From Wednesday's arguments before the Supreme Court in a case involving New
Hampshire's parental notification law on abortion, based on a recording
provided by the court:
Justice Stephen G. Breyer: Let's imagine a real circumstance. A 15-year-old
walks in at 2 in the morning on Saturday into the emergency room and the doctor
looks at her. She's pregnant and she has this very high blood pressure,
whatever. The doctor thinks to himself immediate abortion, no question….
What's supposed to happen?
New Hampshire Atty. Gen. Kelly A. Ayotte: Justice Breyer, the physician in
those instances could perform the immediate abortion.
- Breyer: It doesn't say that in the statute. It suggests the
contrary…. All of these things are, you know, questions of probability,
and [the doctor] doesn't want to risk being prosecuted and he doesn't want to
risk losing his license…. He happens to have his lawyer with him.
- Breyer (continues): Well, so, you know, what does the lawyer say? OK,
what's the provision that cites it? There's no health exemption in this
statute.
- Ayotte: Your honor, his lawyer would advise him in those circumstances that
the competing-harms defense would protect his actions because he needs to act
urgently.
- Justice Sandra Day O'Connor: Would it protect him from a civil damages
action as well as prosecution … in a criminal case?
- Ayotte: By the plain language of the competing-harms defense, it also
precludes civil liability….
- Breyer: How do we know? I mean, what you're saying is fine. But how do we
know that that's actually the law? I mean, there are a lot of people who
absolutely in very good faith would say that isn't "competing harm." They would
say that the competing right for the life of the fetus is more important than
the possibility of the mother having children in the future herself. See, there
are people in good faith on both sides of this argument. And so how do we know
that … your competing-harms defense is going to do for this particular
woman what a health exception would do?
- Ayotte: Justice Breyer, because the harm that is being weighed here is the
harm of urgently providing care to this minor who needs it as opposed to the
harm that the act is trying to get at, which is notification of
parents….
- Solicitor General Paul D. Clement (representing the U.S. as a "friend of
the court"): What you have before you is really a case where it's literally a
1-in-1,000 possibility that there's going to be an emergency where the statute
won't operate. And the real question for you is: Faced with that kind of case,
do you invalidate 1,000 applications of the statute, noting that 999 of them
are constitutional?
- Justice Anthony M. Kennedy: Could the plaintiffs have filed a narrower
action attacking the adequacy of the bypass procedure?
- Clement: Absolutely. And … what I think I would envision them filing
is an even narrower provision that seeks a pre-enforcement declaration …
that says that this statute can apply in an emergency situation.
- Breyer: Focus on what you just said. What you've done is you've tried to
create an injunction that will separate out the sheep from the goats, all
right?
- American Civil Liberties Union lawyer Jennifer Dalven (representing Planned
Parenthood of Northern New England): I think what is quite clear from all the
briefs is that once a minor arrives in the emergency room, it is too late for
her to go to court…. Any delay from the time that the doctor faces a
pregnant teen — determines that she must have an immediate abortion
— any delay from that point forward puts the minor's health at risk.
- Justice Antonin Scalia: Well, counsel, surely not the delay for a quick
phone call….
- Dalven: … I think that my question would be: What would be the
purpose in such … a statute … if all you had to do was literally
call a number and the judge would say 'OK'? If the judge had no time, the nurse
had no time to relay the facts, the judge had no time to ask any questions, the
judge had no time to consider the evidence or look at the law, there's a real
question about what potential purpose there could be of requiring even that
small delay before a minor gets the immediate treatment she needs.
- Kennedy: Counselor … the purpose is to save the statute, which has
thousands of applications that are valid.
- Dalven: But … I don't think saving a statute is worth putting a
teen's health at risk.
- Justice John Paul Stevens: … Since the decision of the District
Court and the decision of the Court of Appeals, has the Legislature considered
enacting a different statute that would solve the problem?
- Dalven: They have not, your honor. There has been no bill put forward, to
my knowledge.
- Stevens: It seemed to me it wouldn't have been all that hard to do. I don't
know.
- Dalven: That's right, your honor. They could have enacted a law with a
medical emergency exception, and we could have all gone home.
- Chief Justice John G. Roberts Jr.: Well, maybe they assumed that the
medical health exception of the sort you're arguing for is not constitutionally
required, and that's what would be litigated in a narrow, focused challenge on
the adequacy or inadequacy of the bypass procedure.
From Associated Press
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