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Supreme Court Sends Abortion Case Back to New Hampshire

January 18, 2006 at 12:00 AM EST
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GWEN IFILL: The court today declared at least one part of the 2003 New Hampshire parental notification law “intolerably vague,” and then sent the entire case back to the lower court.

Along the way, retiring Justice Sandra Day O’Connor made two important points that could affect future abortion rulings: “States,” she wrote, “have the right to require parental involvement when a minor considers terminating her pregnancy.” And she said, “A state may not restrict access to abortions that are ‘necessary, in appropriate medical judgment for preservation of the life or health of the mother.’”

So what can be read between the lines in today’s unanimous decision, and what does that mean to those judges who agreed with her on this, yet disagree on abortion rights?

For that we turn to Marcia Coyle, Supreme Court correspondent for The National Law Journal.

Welcome back, Marcia.

MARCIA COYLE: Thanks, Gwen.

GWEN IFILL: Forty-eight hours of notification which now these young minors have to give to their parents before they could proceed. A lot of states have attempted to pass these kind of parental notification laws.

MARCIA COYLE: Right.

GWEN IFILL: How did this one end up before the court?

MARCIA COYLE: Well, the New Hampshire law is like about 40 other states that have parental notification. Physicians are prohibited from performing abortions on minors until 48 hours after written notice has been given to a minor. So in that respect, it’s very much like most of the states.

GWEN IFILL: The written notice has been given to the parents, not to the minor.

MARCIA COYLE: Right. I’m sorry, to the parent or the guardian.

GWEN IFILL: Right.

MARCIA COYLE: There are exceptions. The major exception would be if a physician in the medical record certifies that the abortion was necessary to save the life of the minor, so notice — notification could not be given, and also there’s a so-called “judicial bypass.” If for some reason parental involvement is not recommended, the minor can go to court and have the court decide that it’s in the minor’s best interest, or not, to have the abortion.

But where New Hampshire’s law is different from the majority of other states that do this is that it lacked an explicit exception for abortions to preserve the health of the minor in medical emergencies.

GWEN IFILL: What was “intolerably vague” about this law?

MARCIA COYLE: New Hampshire argued, for example, that the judicial bypass provision would take care of most of those medical emergencies, but it really wasn’t clear. And it also wasn’t clear whether physicians who acted in medical emergencies would be able to escape civil or criminal liability.

So it was too vague. The lower court struck the entire statute down.

GWEN IFILL: Do we think that the state legislature intended to omit these exceptions?

MARCIA COYLE: This is a big question, and one of the reasons why the court sent it back to the lower courts. The court wanted to craft a remedy here that fit the problem. It didn’t — the opinion by Justice O’Connor said it’s not necessary to strike the whole statute if we can remedy this one problem.

But in remedying this problem, the court has to act in accordance with legislative intent.

During the oral argument, the opponents of the statute said the legislature had made it very clear that it did not want a health exception in the statute, and it would prefer to see the statute be struck down entirely than to have that. The state of New Hampshire argued that that was not the case. So the Supreme Court told the lower court before we — you address the remedy, first find out what the legislature’s intent is.

GWEN IFILL: What was the distinction between the way the court handled this case and the way they handled previous notification cases, say in the case of partial birth abortion?

MARCIA COYLE: Well, as Justice O’Connor pointed out in her opinion, it’s not unusual for a lower court to strike the entire statute when it finds a constitutional flaw. The Supreme Court itself did that six years ago when it faced a challenge to Nebraska’s so-called “partial birth abortion law.” That law lacked any exception for the health of the mother.

But the court has in the past and in other decisions found provisions in state laws to uphold and strike down without striking down the entire statute. In this decision, the court seemed to be sending a stronger message to lower courts that if you can save the statute, then tailor your remedy to the constitutional flaw.

GWEN IFILL: Don’t knock the whole thing down.

MARCIA COYLE: Right.

GWEN IFILL: How significant was it that it was Sandra Day O’Connor who wrote this unanimous opinion as perhaps her farewell to the court?

MARCIA COYLE: I think it was significant symbolically. Today was probably her last day on the bench for hearing oral arguments, assuming Judge Sam Alito is confirmed in the next two weeks. There are no oral arguments in the next two weeks.

It may also be her last opinion for the court. There will be decisions probably this coming Monday, but she may not write one.

The opinion had to have been assigned by Chief Justice John Roberts because he was in the majority, and he gave it to her, and it also symbolizes how pivotal she has been in all of these abortion rulings. She has been the key deciding vote in so many of them.

GWEN IFILL: And also, in order to give this unanimity to the departing justice, people like Justice Thomas and Justice Scalia, who don’t necessarily agree with the underpinning assertion she made about what is protected by law having to do with abortion, agreed with her.

MARCIA COYLE: They did, and that was, I think, something they did for her.

GWEN IFILL: A courtesy.

MARCIA COYLE: Right, absolutely. Nobody wrote separately. There was one section in the opinion, and it was an important section, in which she said it was established that states may not restrict access to abortion when it’s necessary to preserve the life or health of the mother. And she cited 30 years of case law setting that out.

But there was one case she did not cite, and that was the Nebraska partial birth abortion decision in which Justices Kennedy, Scalia, and Thomas had dissented. And I think that sort of leaves that issue open, sets the stage for the next big battle.

GWEN IFILL: What does it say about a case like this, which is basically just vacating, remanding it, they call it, sending it back to the other court, that both sides of the abortion battle hailed it as a victory?

MARCIA COYLE: Because it was a narrow ruling. The anti-abortion groups could take away from it her strong comments that it’s established that states may require parental involvement in minors’ access to abortion. The pro-abortion groups could take away from it that it’s established that states cannot restrict abortion when necessary to preserve the life or health of the mother.

There was something for both sides, but it didn’t answer the essential question that the court may well face next term on the necessity of an exception for preserving the health of the mother in the partial birth context in a federal statute.

GWEN IFILL: It never seems to go away. Marcia Coyle, thanks so much.

MARCIA COYLE: You’re welcome.