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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

Commentary:
This article begin with this line, "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." In other words, they made minor changes to the law. But, that in itself is unconstitutional. The Supreme Court can't rewrite laws, period. It can only find a law constitutional or unconstitutional.

Conservatives used to say only Congress (and the people) can make laws, but the Roberts case turns this concept upside down. The Roberts Court in this abortion case simply rewrote the law so it would better fit its right wing agenda. Regardless of how you feel about abortion or this decision, it's important to know this Court gave itself more power without our consent.