No Abortion Showdown

Thursday, December 1, 2005

THE CASE OF Ayotte v. Planned Parenthood , argued at the Supreme Court yesterday, has been billed as a major showdown on abortion rights. The justices would do a great public service if they didn't take up the gauntlet. Like any abortion case that makes it to the Supreme Court, this one has passions running high on both sides of the abortion fault line. Unlike many abortion cases, where irreconcilable values necessarily clash, the dispute here is narrow -- one the justices can and should resolve without drama or great symbolism.

At issue is a New Hampshire law requiring that physicians performing an abortion on a minor notify her parents and wait 48 hours after doing so before carrying out the procedure. The law has an exception for situations when the doctor certifies that the minor's life is at stake, but it has none for situations in which her health might be at risk -- something the court's case law generally requires. It does, however, have a provision allowing a judge to override the notification requirement and waiting period if that is in the minor's best interest, including in the interest of her health.

New Hampshire's law is clearly constitutional in the overwhelming majority of cases. Parental-notification laws, in general, are permissible under the court's abortion jurisprudence, as long as they have a judicial-override provision.

In a small subset of foreseeable instances, however, applying the law could violate the court's dictates -- as even the Justice Department, which supports the state's position, acknowledges. Those challenging the statute rightly point out that in a medical emergency in which the minor's health is threatened, having to go to a court for permission for an abortion can be a dangerously cumbersome procedure, precisely the sort of "undue burden" the court insists states must not impose on the right to choose.

However, it would be needlessly aggressive to throw out the entire statute, as both lower courts did, because in some cases it could function unconstitutionally. At the same time, the court shouldn't wait for a subsequent challenge to make clear that the law cannot be acceptably enforced in a medical emergency. Rather, the court should uphold the law in general while blocking its enforcement in those situations in which it would violate the Constitution -- that is, when a doctor believes in good faith that either waiting 48 hours or dealing with a judicial proceeding would compromise his or her patient's health. The court here must ensure that New Hampshire does not prevent minors whose health require it from getting abortions in a timely fashion.


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