Interesting new abortion case taken up by the Supreme Court:
High Court Re-enters Abortion Debate With Emotional Case
By LINDA GREENHOUSE
Published: May 23, 2005
WASHINGTON, May 23 - The Supreme Court today accepted its first abortion case in five years, an unexpected development that, despite the rather technical questions the case presents, is likely to add even more heat to the already super-heated atmosphere surrounding the court and its immediate future.
The new case is an appeal by the state of New Hampshire of a federal appeals court ruling that struck down a parental-notification requirement for minors seeking abortions.
The Supreme Court has dealt with parental-notice statutes for many years, and has upheld those that contain safeguards for minors, including the option of bypassing the notice requirement by going before a judge. This case does not require the court to revisit those precedents.
Rather, it presents two questions that the court has not previously addressed in the context of parental-notice laws. One is whether such laws must explicitly provide an exception for minors whose continued pregnancy is a threat to their health. The other is what standard courts should use in evaluating a judicial challenge to abortion laws that like the New Hampshire law, enacted in 2003, have yet to take effect.
In striking down the New Hampshire law, the United States Court of Appeals for the First Circuit, which sits in Boston, applied a standard derived from the Supreme Court's 1992 decision that reaffirmed the right to abortion.
That decision, Planned Parenthood v. Casey, struck down a Pennsylvania requirement that married women notify their husbands before obtaining an abortion. The majority found that while many married women do consult with their husbands, and therefore would not find the requirement burdensome, the law placed an "undue burden" on the category of married women who were in abusive relationships or could not notify their husbands without adverse consequences.
Even if that category represented only one percent of all women seeking abortions, the majority concluded, it still placed a substantial obstacle in the path of a "large fraction" of those women for whom the regulation was directly relevant, and was therefore unconstitutional.
The First Circuit applied that analysis in the New Hampshire case to rule that as to that category of pregnant teen-agers with health conditions that require a prompt abortion, the law's requirements, which include a 48-hour waiting period after the parental notice, pose an undue burden for a large fraction, consequently rendering the law unconstitutional.
In the state's appeal, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, Attorney General Kelly A. Ayotte is arguing that the court should have applied a different test, under which courts are not to issue injunctions against laws that have not yet taken effect unless "no set of circumstances exists under which the act would be valid."
This standard is derived from a 1987 Supreme Court decision in a criminal case, United States v. Salerno, that was not related to abortion. The court's own precedents are unclear on this standard's continued application to abortion cases.
The court will hear arguments in the New Hampshire case in the fall. Its eventual decision could have an impact on the "partial birth" abortion cases, challenges to the new federal law, that are now pending in three federal appeals courts and will probably reach the Supreme Court in its next term. |
