New Chief Justice Faces Abortion Issue

As required by a 1990 Supreme Court decision, those laws generally include a "judicial bypass": Teens may avoid telling a parent if they can convince a judge that they would face abuse or that they are mature enough to make the decision on their own.

New Hampshire's version would make it a crime for a doctor to perform an abortion on a minor unless the doctor has written proof that at least one parent has been notified or unless the doctor certifies the girl would die without the procedure.

But unlike the parental involvement laws in most states, the New Hampshire statute does not explicitly let a doctor proceed when, in the doctor's judgment, the girl might be about to suffer serious health consequences short of death.

Opponents of the law say that is unconstitutional because the Supreme Court has said in past cases that state regulations without health exceptions put an "undue burden" on the right to abortion. It is unrealistic, they say, to expect teens facing such pregnancy-related conditions as severe uterine bleeding or sudden spikes in blood pressure to wait for a parent or a court to let them have an abortion.

In the words of a brief filed by the American Civil Liberties Union, which is representing the law's opponents: "The central issue in this case is simple but profound: Can the state omit a medical emergency exception from an otherwise permissible abortion regulation, even when it is undisputed that compliance with the regulation in emergencies will result in serious medical harm?"

New Hampshire counters that such rare crises could be dealt with through the law's existing exceptions. Under the 1987 Supreme Court case, the state argues, the risks of a severe health emergency are too small to warrant invalidating the whole statute.

A brief submitted by New Hampshire legislators who back the law notes that, out of tens of thousands of abortions done on teens in six other states for which records exist going back to 1991, only 11 were "emergency health abortions."

The law's opponents do not dispute that the number of people at risk may be small, but they argue that the risk even to some people, combined with the legal uncertainty the law imposes on doctors, makes the law unconstitutional.