Supreme Court: New Hampshire Abortion Case

Mary Cheh , law professor at George Washington University, was online Wednesday, Nov. 30, at 2 p.m. ET to discuss Supreme Court arguments on a New Hampshire abortion case concerning parental notification laws.

Read the story: Justices Weigh Parental Notification Law (Post, Nov. 30)

"It's not just an on-off question about whether there's a constitutional right to abortion, said Cheh in an interview with Bloomberg News. "If there is such a constitutional right, to what extent is it actually protected? And how far can a state go in regulating it?"

A transcript follows.

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Washington, D.C.: Justice O'Connor created the "undue burden" test herself from whole cloth. Do you think the Court's application of that test for legislation regulating abortion would be altered if she were to leave the Court before an opinion is delivered in this case? Do you think the Court without O'Connor would abandon the undue burden test?

Mary Cheh: You're right to say that the undue burden standard is Justice O'Connor's creation. The test seemed to evolve from statements in cases suggesting that a government interference with someone's liberty should be "substantial" before the Court would interfere. She was casting about for some test or standard that would allow the government greater latitude to regulate without eliminating the woman's right to get an abortion altogether. Of course, a lot of the "tests" that the Court uses, such as "strict scrutiny" or the "rational basis" test are all made up and don't come from the Constitution itself. The aim is to look for some verbal formula that the justice thinks strikes the right balance between conflicting principles.

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Washington, D.C.: Did the justices seem inclined to apply the Salerno standard for facial challenges to other constitutional challenges, outside of the abortion context?

Mary Cheh: Yes, the Salerno test is the standard in many cases and part of today's argument is why it shouldn't be the standard in abortion cases as well. And, for those reading this, the Salerno standard requires that, if a person wants to challenge a law before it has been applied and to strike it down without seeing how it operates in specific cases,(which is what they are doing in this and other abortion cases) then he/she has to establish that the law is not constitutional under any set of circumstances. That's obviously a very high burden.

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Washington, D.C.: What will this case turn on? The 48 hour waiting period? Parental notification vs. consent? Rights of minors vs. rights of parents? Any one issue which will likely be looked at most by the justices?

Mary Cheh: The principal issue is whether the law is invalid because it does not explicitly include a health exception in its notification requirements. Laws requiring parental notification have been upheld, but to be upheld they must have certain exceptions. One is to permit the minor to go to a judge and seek a bypass of the requirement if she is mature and it's in her best interests. Another is to permit an exception if it is necessary to save the life of the patient. The New Hampshire law has both of these exceptions. It does not have, though, an exception to skip notification if it is medically necessary to protect the health of the patient. If a doctor had a patient and made the judgment that her health was threatened and an immediate abortion was necessary, (but her life was not on the line), does the law allow skipping the notification and, if it does not, is it an unconstitutional burden on the right.

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Washington, D.C.: How large of an effect do you think this case will really have for the over-arching debate re: abortion politics? Would upholding this law really be a large victory for the anti-choice people? Do you think other states will be inclined to pass such legislation (that haven't already) if N.H. prevails?

Mary Cheh: It all depends on the reasoning used to decide the case. A right is only so strong as the "test" the Court uses to protect it. Rights can be absolutely protected (almost none are)they can be protected against all but the most compelling reasons for restriction, they can be protected against "undue burdens" being placed upon them (whatever that may mean to individual justices) or they can get almost nothing in the way of protection. Some rights or interests are protected only against irrational regulations, for example. So the significance of the case and the thing to watch is what test the Court sticks with in this area.

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Washington, D.C.: Please explain to this lay person how delaying an abortion 48 hours to send a note to a minor's parent's saying -- "Hey, your daughter got her self pregnant and now wants to have a risky, permanent surgical procedure to kill the fetus, just wanted to give you a heads up, your consent isn't required" -- is so overly burdensome? I honestly don't come at this from any ideological standpoint, I just can't understand how any rational person would be against a state's right to impose a parental notification law.

Mary Cheh: It's not overly burdensome and such notification laws are routinely upheld. The issue is the narrower one about whether the law must allow an exemption if the delay will harm the patient's health.

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Camden, N.J.: In abortion cases such as this one, where there is a narrow issue: whether the N.H. law is sufficiently providing an exception for a woman's health, can the Court overturn Roe (or Casey) in its entirety?

Mary Cheh: The Court is unlikely to reach out to that fundamental question, but it certainly could. That is, a majority (which there is not now such a majority since Roberts replaced a CJ who has always voted to overturn Roe) could say that the state can adopt any reasonable regulations it chooses, because the decision to have an abortion is not specially protected under the constitution.

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Alexandria, Va.: In Casey, the Court never mentioned the right to privacy used in Roe. Does this mean that a woman does not have a "fundamental" right to abortion? If so, how does it affect the Court's analysis in the parental-notification case.

Mary Cheh: One has to be a close reader of the Court's terminology, as you seem to be, to try to figure out exactly what they are saying. Casey departs from the "fundamental rights" language in Roe precisely because the joint opinion wanted to back away from a very strict protection of the abortion decision. Instead of giving almost complete protection, certainly in the 1st trimester, which was the case when the abortion right was called "fundamental" in Roe, the joint opinion abandoned that kind of language so it could substitute the "undue burden" standard. This standard is still hefty but gives legislatures more room to regulate. But the right, even as protected under Casey is still a substantive due process right that reads in meaning to the word liberty in the 14th amendment. And that's where the cases also find rights of privacy.

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Fairfax, Va.: Does this mean that if a woman wants/needs to get an abortion she needs to talk to a judge before she talks to a doctor?

Mary Cheh: If the minor wants to avoid the parental notification requirement, she has the option to go before a judge and establish that she is mature enough to make a decision like this and that it is in her best interests to avoid notification. But that entire "judicial bypass" issue is not what is the central dispute in this case. Going the judicial bypass route would obviously take time, and the question is whether a minor can skip the notification and the judicial by pass if there is a non-life threatening health emergency.

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Springfield, Va. : What types of conditions are covered in a "health" exception that are not included in the law being argued? I've heard some argue that "health" is a wide loophole that covers too much.

Mary Cheh: Well that is a very good question and it was on the minds of the New Hampshire legislators who voted, in a very close vote, not to add a health exception. Health exceptions have included not only physical health but also psychological health and, without some greater specificity, one can see that a wide variety of health emergencies could creatively come under this umbrella

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Washington, D.C.: For goodness sakes, it seems like the pro-choice people are making a mountain out of a molehill (is that the right saying?!) I have never heard of anyone needing an abortion done THAT second. I mean, it takes 48 hours to schedule an appointment with a clinic that performs abortions. Call the dang parents on the phone on the way to the hospital! It's not like the N.H. law requires the parents' consent anyway. Even if an abortion HAD to be performed immediately for the sake of the child's life, this law wouldn't stop an emergency procedure. But at least it should require the parents to be notified afterwards of what happened.

Mary Cheh: well in probably 99% of the cases, you are exactly right. But the argument is that the exception has to be in there for the unusual case. And, of course, as we both know, this case is seen as a battleground where each side is taking the temperature of the Court to see whether greater regulation will or will not be permitted.

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Washington, D.C.: During arguments today, the Justices were talking a lot about the severability clause in the legislation. How does this play into the case?

Mary Cheh: When someone challenges a law, it may be that some provisions are ok but others are not. Sometimes it's possible to sever the offending provisions and save the rest. It may be hard to do that kind of surgery here if the Court agrees that the law lacks an essential ingredient. Sometimes you can cut out parts, it's harder to add things if the legislature didn't so intend.

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Williamsburg, Va.: You mentioned that the Casey decision grounded the abortion right in the 'liberty' protected by the 14th Amendment, rather than the 'privacy' right of Griswold and Roe. Considering the similar 'liberty' language in Lawrence v. Texas, how relevant is it really to abortion jurisprudence when senators and judges use the coded language in confirmation hearings about whether there's a privacy right in the Constitution?

Mary Cheh: They are essentially referring to the same thing.

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Washington, D.C.: A girl under 16 is considered too immature to drink alcohol, smoke, drive, get a tattoo, breast implants ... the list goes on and on. But, she can have an abortion. Well then, I think that a 13-year-old should be able to go to a judge and tell that judge that she is mature enough for breast implants and shouldn't need her parent's permission! Would the Court apply a strict scrutiny test to this new fundamental right which, who knows, they may one day find?

Mary Cheh: the question about what makes it onto the Court's hit parade of specially protected, implied constitutional rights is the big issue in all of this. According to the Court in Casey, abortion has made it (and not stuff like breast implants) because the decision to have an abortion is like marriage, procreation, child rearing, which involves the most intimate choices a person makes in a lifetime. The Court talked about intimate, life defining decisions involving the life health and physical condition of the woman in a unique way, etc.

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Out West: I don't understand the point of parental notification laws. If your kid doesn't want to tell you, you're probably a bad parent. It just seems like a method to control women.

And why don't people who advocate for this think pregnant underage women need their parent's consent to give birth? Sounds like a mighty low opinion of motherhood to me.

Mary Cheh: Your observations go to the underlying policies of notification. There are many arguments pro and con, on the merits of notification itself. Maybe a child is scared and ashamed to tell the parent but would be better off for doing so and needs the requirement to insure it. Maybe the parent, once informed, can offer advice, comfort, and alternatives. Or as you suggest maybe the requirement will only worsen the situation in an already dysfunctional family. But these are matters for the legislature to decide, as your representatives, since, as I've said, the constitution does not prevent states from having parental notification laws, properly drawn.

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New York, N.Y.: The waiting period laws seem quite burdensome for the poor, particularly those in rural areas. Does this type of economic discrimination come into play when considering a 'burden'?

Mary Cheh: Actually it does not seem to. The Court has already upheld a 24 hour waiting period between the time a woman, in writing, requests an abortion and is given materials about the abortion procedure. This has caused a hardship particularly on women in rural or underserved areas who then have to travel, sometimes with an overnight stay, then wait or come back for the procedure. And of course the government has no constitutional obligation to pay even for medically necessary abortions for poor women even if they pay for all other medically necessary procedures.

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Leesburg, Va.: Thanks for taking my question .I am pro-choice, but I am taken aback by the opposition to the requirement that minors need to inform/get permission from their parents to have an abortion done. Doesn't the parent have the right to know what the minor has been up to? Or have I misunderstood the whole issue?

Mary Cheh: No, again, there is no question that states can require notification. That's settled. the question is whether the law must contain an exception to the requirement if the health of the woman would be endangered by complying.

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Maryland: What, exactly, is a non-life threatening health emergency? If you're not about to die, you can get permission or go see a judge. If you ARE about to die, I can't believe that the doctor couldn't perform the procedure, unless they aren't allowed to perform ANY procedure if they can't get a hold of a parent. Is that the case?

Mary Cheh: I'm not a doctor of course but there are doctors who say that there are instances of health dangers to minors who come in for an abortion which, if not performed promptly (or at any rate sooner than finding a parent and notifying or getting a judge to authorize it) will be serious.

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Washington, D.C.: Professor Cheh,

You were by far the most liberal professor I ever encountered in GW Law School. Some of my friends kept a list of all the digs and rants, etc., you made against any viewpoint that ran counter to an extreme liberal philosophy of judicial activism. So my question is, can you be fair in your analysis?

Assuming, as the Court will, that Roe is settled law, the only question the Supremes are considering is whether parental notification is an undue burden to the Constitutional right to abort a human fetus/baby.

We all know that you support unconditionally a woman's right to abort up until the moment of delivery. If I misstate your position, please let us know. So could you for a moment pretend that you were impartial -- or even dare say, in some small tiny way pro-life. What is your best argument for why parental notification laws are not an undue burden on a woman's constitutional right to abort a fetus/baby?

Mary Cheh: well, I'll leave it to the readers to decide who is overly ideological, but as to your question, there is nothing unconstitutional about parental notification laws...they do not impose an undue burden and that is settled. (P.S...I do hope you enjoyed the class nonetheless)

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Mary Cheh: Well, they are cutting me off. I very much enjoyed the chat and your questions. There were so many ...too many to get to. So I apologize if yours was not among them. Maybe we can do this again when the case is decided. Thanks much.

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