But Breyer said the parental notification law itself "suggests the contrary." He also did not embrace Roberts's approach, telling U.S. Solicitor General Paul D. Clement that any effort to have courts craft a solution would "get into the greatest difficult issue there is in this area, which is: What does that health exception mean? We've said throughout that that health exception has to be defined first by a legislature."
But two key moderates on the court -- Justices Sandra Day O'Connor and Anthony M. Kennedy -- made comments similar to Roberts's. And one of the court's more liberal members, Ruth Bader Ginsburg, while generally voicing skepticism about New Hampshire's position, implied late in the argument that she might be open to a compromise.
Ginsburg sketched a hypothetical option like the one offered by Roberts, then observed to Dalven: "Then you would have no complaints about the rest of the statute."
It was expected that the case would not turn into a vehicle for reassessing Roe v. Wade . But the repeated emphasis on a narrow ruling that might return the hardest questions to lower courts was perhaps more of a surprise.
New Hampshire had not only asked the court to rule that it does not have to have a health exception, but it also asked the court to apply a strict standard under which its law could not be challenged unless it could be shown to be unconstitutional in all circumstances.
At yesterday's argument, however, the justices showed little interest in that claim. And Ayotte and Clement readily agreed when asked whether they would be satisfied with a ruling that narrowed the issue to emergency cases and sent the matter back to the lower courts.
"We think that is a very good mechanism," Ayotte told Roberts.
"The entire tenor of the justices' questions suggested that they are focused upon the specifics of the New Hampshire case and not any broader questions," said David J. Garrow, an abortion-law specialist at Cambridge University in Britain, who attended the argument.
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