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NH Abortion Parental Consent Challenge before Supreme Court

“Hypothetical” issue of exception for the health of the young mother crux of debate

By Terry Vanderheyden

WASHINGTON, December 1, 2005 (LifeSiteNews.com) – At issue in Ayotte v. Planned Parenthood is whether a New Hampshire law requiring parental notification is constitutional because it does not include an exception for the so-called health of the young mother, the US Supreme Court heard Wednesday.

The abortion case, the first to be tried by newly appointed Chief Justice John G. Roberts Jr., and likely the last to be decided by outgoing Justice Sandra Day-O’Connor, is the first since the Court overturned the partial-birth abortion ban in 2000. The ruling in the 2000 case stated that the ban was unconstitutional because it did not accommodate for the “health of the mother,” the same issue underlying Planned Parenthood’s challenge of New Hampshire’s notification law.

Day-O’Connor’s vote in 2000 turned the pro-abortion tide in their favor; if Judge Samuel Alito is confirmed before the case is decided, Justice O’Connor’s vote would be void. If the Justices are equally divided in the case, 4-4, the suit may be revisited with Alito partaking.

In arguments yesterday, Planned Parenthood of Northern New England attorney Jennifer Dalven, argued that a “judicial bypass” allowed by the law in emergency situations would be ineffective if a girl had to reach a judge on short notice. Any delay “puts the minor’s health at risk,” Dalven claimed.

Justice Antonin Scalia responded, suggesting that, if New Hampshire set up an on-call judge for fielding this type of situation in an emergency, for example, there would be no concern. “It takes 30 seconds to place a phone call,” he argued.

Justice Stephen G. Breyer presented a hypothetical case to New Hampshire Attorney General Kelly A. Ayotte, suggesting that, under the law, a doctor’s hands would be tied in the event that he was treating a teenage girl in critical condition and decided abortion was the only solution.

A Concerned Women for America column countered that the “health exception” argued was such a rare occasion as to be moot. “Over the past decade a survey of tens of thousands of teen abortions in seven states found that under a dozen abortions were performed for health emergencies.”

“The key word in the Supreme Court case is ‘hypothetical,’” the CWA added. “If the court rules in Ayotte that hypothetical exceptions are irrelevant, abortion legalities will be measured against the Constitution – just like other legal decisions – and sanity will have returned to judicial decision-making.”

In a friend-of-the-court brief in support of the New Hampshire law, the American Center for Law and Justice (ACLJ) contended that the Supreme Court has never held that all laws regulating the provision of abortions must contain a “health” exception - as the federal appeals court concluded. In fact, the ACLJ brief highlights the fact that the high court has rejected “health” exceptions in the past in the area of abortion funding and parental involvement laws.

The ACLJ brief argued that to require a “health” exception for parental notification laws “would be to make a shambles of existing abortion regulations.” Further, the ACLJ brief cited specific Congressional testimony from women who received secret abortions as children and whose testimony dramatically demonstrated that parental notification laws are needed and would play a vital role in the health and safety of children who are considering abortions.

The Family Research Council and Focus on the Family also submitted an amicus brief in support of New Hampshire's position – which is also supported by the federal government – that the parental notification law is needed to protect the health of children.

“Parental involvement laws protect vulnerable young girls from exploitation by predatory males. The ugly truth is that most pregnant teens are impregnated by adult men. A recent study of over 46,000 pregnancies of school-age girls in California found that over two-thirds were impregnated by adults,” said Cathy Cleaver Ruse, Senior Fellow for Legal Studies for Family Research Council.

“Ayotte v. Planned Parenthood is not questioning an abortion ban but rather a notification law,” added Bill Saunders, Director of the Center for Human Life and Bioethics at FRC. “The Constitution does not require a health exception to otherwise valid abortion laws and the Court has never imposed such requirements outside laws banning abortion. A broad health exception would expose children to a greater risk of coerced abortions and to possible emotional and physical harm from abortion, all without a parent's support.”

See CWA report:
Parental Notification Attacked as Harmful to Teen Health
http://www.cwfa.org/articles/9548/BLI/family/index.htm

 

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