High Court Takes Up Abortion Consent Case

By Fred Barbash
Washington Post Staff Writer
Monday, May 23, 2005; 11:58 AM

Amid intensifying controversy on Capitol Hill over judicial appointments, the Supreme Court today took on another abortion-related case.

Specifically, the court said it would consider whether laws requiring parental notification before a minor can get an abortion must make an explicit exception when the minor's health is at stake.

The justices agreed to review the case as debate rages in the Senate over the use of the filibuster to block judicial appointments by the president. With one or more Supreme Court vacancies likely in the near future, all sides believe that the future of the right to abortion is very much at stake.

At issue in today's case is a New Hampshire parental notification law that did not make an exception to protect the health of the minor and was therefore struck down by the 1st Circuit U.S. Court of Appeals, which cited what it considered an unbroken line of Supreme Court precedents on the subject.

A major issue in the case is also the standard to be used by the courts when reviewing such controversies.

The attorney general of New Hampshire argued that a law such as New Hampshire's must be upheld unless a challenger can show that "no set of circumstances exists" under which it would be constitutional.

The Planned Parenthood Federation of Northern New England, which challenged New Hampshire's law, argued that the operative test is the less formidable one established by the Supreme Court of whether the law places a "substantial obstacle" or "undue burden" on the right to an abortion.

Forty-four states have "parental notification" laws, which have been upheld by the Supreme Court insofar as they allow judges to "bypass" notification when they consider it necessary.

Today's case, Ayotte v. Planned Parenthood, raises the question of whether these laws, to pass constitutional muster, must explicitly mention protection of the health of the woman as one of the reasons a judge may skip parental notification.

In its last major abortion decision in 2000, the Supreme Court ruled 5-4 that state laws banning so-called "partial-birth abortions" must provide an exception to protect the mother's health.

The court will rule in its next term on today's case.

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