Justices to Hear N.H. Abortion Notification Challenge

By Charles Lane
Washington Post Staff Writer
Tuesday, May 24, 2005

As if the Senate negotiations over filibusters and the federal judiciary were not intense enough, the Supreme Court issued a reminder yesterday of its power over the pivotal issue in the fight: abortion.

In a one-line order, the court said it would rule on the constitutionality of a New Hampshire law that requires an abortion provider to give a minor's parents 48 hours' notice before the procedure, unless a judge grants an exception or the girl's life is at risk.

But, unlike parental notification or consent laws in most other states, the law makes no exception for cases in which the health of the pregnant girl is at risk. The question for the Supreme Court is whether that makes the New Hampshire law unconstitutional.

Though the case presents no direct challenge to the broad abortion right recognized in Roe v. Wade , and will not be argued until next fall -- with a ruling due by mid-2006 -- both sides in the filibuster debate said it shows that the stakes go well beyond the appeals court nominations now in contention.

"This is something we will bring up to our constituents as to why the Supreme Court battles are so important," said Wendy Wright, senior political director of Concerned Women for America, which supported an end to Democratic filibusters of President Bush's nominations for the courts.

Marcia D. Greenberger, co-president of the National Women's Law Center, which opposed Republican efforts to eliminate the filibuster, said: "If the composition of the court changes, it's hard to predict if new justices will apply the law we've come to rely on."

The U.S. Court of Appeals for the 1st Circuit, based in Boston, ruled last year that the New Hampshire law is unconstitutional under a 1992 Supreme Court decision that said states may not impose any "undue burden" on the right to abortion. The Supreme Court defined that as a law that "in a large fraction of cases" puts a "substantial obstacle" in the way of someone seeking an abortion.

In its appeal, however, New Hampshire said the 1st Circuit applied the wrong legal standard. It cited a 1987 Supreme Court ruling that suggests opponents of the law must show that the law would impinge on abortion rights not just in some or most cases but in all cases.

While this is a seemingly technical point, the court's ruling on it could have a far-reaching impact.

If the justices affirm the ruling of the 1st Circuit, striking down the law, the effect will be to fortify and entrench Supreme Court abortion rights precedents -- before Bush has the chance to appoint multiple justices who may not favor abortion rights.

There will be little change in the balance on the court if Bush replaces the ailing chief justice, William H. Rehnquist, between now and a decision in the New Hampshire case, known as Ayotte v. Planned Parenthood , No. 04-1144. Rehnquist is already reliably opposed to abortion rights.

But if the court were to uphold the New Hampshire law, it would open the door to other states to adopt similar legislation.

And opponents could not sue until a person pressed a claim for an injury she blamed on the law.

At present, 33 states, including Virginia and Maryland, have a parental notice or consent law for parents of girls younger than 18 seeking an abortion. Eight of those states have provisions similar to those in the New Hampshire law, according to lawyers at the National Women's Law Center. Six states and the District have no law.

In 10 other states, parental involvement laws have been adopted but are not being enforced because of legal disputes.

One of those states is Idaho, whose law was struck down last year by the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, because its health exception was too limited. The Supreme Court declined to hear Idaho's appeal in March -- making yesterday's decision to hear New Hampshire's appeal encouraging to its supporters.

"Since the court is hearing a case where the law was struck down, that gives us hope that they want to correct a mistake," Wright said.

A ruling that abortion regulations do not necessarily have to have a health exception could also affect the new federal ban on the late-term procedure critics call "partial birth" abortion. That ban, enacted by Congress with Bush's support in 2003, included no exception to protect the mother's health. Instead, Congress included findings that such an exception was unnecessary.

It has yet to go into effect, however, because three federal district courts have ruled it unconstitutional. Those rulings, now on appeal in three circuit courts, cited the Supreme Court's 2000 decision striking down a Nebraska ban on partial-birth abortion because it lacked a sufficient health exception.

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