Ayotte, Kelly (New Hampshire Atty. Gen.) v. Planned Parenthood of Northern New England, et al. (01/18/2006)

Questions presented: (1) Did the 1st Circuit Court of Appeals apply the correct standard in a facial challenge to a statute regulating abortion when it ruled that the undue burden standard cited in Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 876-77 (1992) and Stenburg v. Carhart, 530 U.S. 914, 921 (2000) applied rather than the "no set of circumstances" standard set forth in U.S. v. Salerno, 481 U.S. 739 (1987)? (2) Whether the New Hampshire Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann 132:24-28 (2003) preserves the health and life of the minor through the Act's judicial bypass mechanism and/or other state statutes?

BY TAWNEY SAYLOR, MEDILL NEWS SERVICE

Minors in at least 33 states are required to notify a parent, or obtain a parent's consent, prior to having an abortion.

In June 2003, the New Hampshire legislature passed an act that made it illegal for doctors to perform an abortion on a minor unless her parents were notified in writing at least 48 hours prior to the procedure.

According to the act, an abortion could only be performed without notification if it was necessary to prevent the minor's death.

The act also contained a provision that allowed state judges to waive the notification requirement. If a minor did not want her parents notified, she could request a confidential hearing. The judge would then have a maximum of seven days to decide if the minor was "mature and capable of giving informed consent" or if abortion without consent "would be in her best interests."

If the minor's petition were denied, she would have an opportunity to appeal, and the appellate court would also be required to rule within seven days. Access to the courts would be granted 24 hours a day, seven days a week.

The act was to take effect on Dec. 31, 2003.

The law immediately evoked a strong reaction from abortion-rights advocates, who turned to the courts to challenge the measure.

On Nov. 17, 2003, a complaint was filed in federal court by a group of local abortion providers and Planned Parenthood of Northern New England. They said the act was unconstitutional because it did not provide an exception to protect the health of a minor in cases when her life was not threatened.

The district court agreed with the challengers, and permanently blocked the law just two days before it was scheduled to take effect.

New Hampshire Attorney General Peter Heed took the case to the 1st Circuit Court of Appeals. The questions before the court were: whether New Hampshire's act contained an adequate health exception, whether it contained an adequate death exception, and whether it placed an undue burden on minors who wanted to obtain an abortion.

The 1st Circuit affirmed, declaring the law unconstitutional.

Writing for a unanimous panel, Judge Joseph DiClerico, Jr. explained that "a statute regulating abortion must contain a health exception in order to survive a constitutional challenge."

DiClerico traced the origin of the health requirement to the 1973 Supreme Court decision in Roe v. Wade, which held that "the State, in promoting its interest in the potentiality of human life, may…regulate…abortion except where necessary, in appropriate medical judgment, for the preservation of life or health of the mother."

The Attorney General had acknowledged that the act contained no explicit health exception, but argued that the provisions of the New Hampshire law provided a functional equivalent.

The court dismissed the argument, saying the law's provisions were inadequate.

"Even when the courts act as expeditiously as possible, those minors who need an immediate abortion to protect their health are at risk," DiClerico wrote. Furthermore, "the time component of the Act's death exception forces physicians either to gamble with their patient's lives in hopes of complying with the notice requirement before a minor's death becomes inevitable, or to risk criminal and civil liability by providing an abortion without parental notification."

Because of the act's lack of a health exception and overly narrow death exception, the court declared it unconstitutional and barred it from taking effect.

Lorraine Kenny, public education coordinator for the American Civil Liberties Union, said the case is "something people should be paying attention to, because it could have a big impact on abortion jurisprudence from here on out."

"It's much broader than an abortion context, it's also a privacy issue," she said. "A lot of things are tied into this question of the government's role in America's life."

Kenny said the ACLU is committed to protecting people from government intrusion in their private lives, and abortion is "something to be decided by women and their doctors, not the government."

However, according to University of St. Thomas law professor Teresa Stanton Collett, who filed a friend-of-the-court brief on behalf of the New Hampshire Legislators, parental notification laws have proven to be successful throughout the country.

"Experience in states having parental involvement laws has shown that, when notified, parents and their daughters unite in a desire to resolve issues surrounding an unplanned pregnancy," Collett said. "Parents can provide or help obtain the necessary resources for early and comprehensive prenatal care. They can assist their daughters in evaluating the options of single parenthood, adoption or early marriage. Perhaps most importantly, they can provide the love and support that is found in many healthy families of the United States."

Also, Collett said, in many cases these laws have resulted in a decrease in teen pregnancies, which is something "everyone agrees is desirable."

On May 23, 2005, the U.S. Supreme Court accepted review in the case, the first case challenging an abortion law that the Court has accepted in five years.

On Nov. 30, 2005, the Court held oral aguments and permitted same day audio to be disseminated. It was the first such broadcasting the Court has allowed under Chief Justice John Roberts.

On Jan. 18, 2006, the Court issued its opinion, effectively giving New Hampshire a chance to save its parental notification law.

The unanimous opinion stayed clear of the abortion fray by remanding the case as it vacated the 1st Circuit's judgment in favor of Planned Parenthood. But writing for the Court, retiring Justice Sandra Day O'Connor made one thing clear: "We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response?"

The answer, she wrote on behalf of the unanimous Court, is to have lower court have a go at it.

"Making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a `far more serious invasion of the legislative domain' than we ought to undertake," O'Connor wrote.