High Court Hears Abortion Case

MARGARET WARNER:

Today's arguments concerned the first abortion case the Supreme Court has heard in five years. At issue was a New Hampshire law that requires a minor girl's parents be notified before she can have an abortion. Here to walk us through the arguments, and some rarely- available audio from the court, is NewsHour regular Jan Crawford Greenburg of the Chicago Tribune.

Hi, Jan.

JAN CRAWFORD GREENBURG:

Hi.

MARGARET WARNER:

Now, some 30 states have parental notification laws. Explain what it is about the New Hampshire statute that landed this one in the Supreme Court.

JAN CRAWFORD GREENBURG:

Well, the reason that this law is so controversial and the reason that Planned Parenthood challenged it in the lower courts as constitutional is that it does not contain a specific exception to allow doctors to perform an abortion without notifying the parent if the girl's health is in jeopardy. It's that health exception.

And Planned Parenthood and other people that attack this law have pointed to previous Supreme Court decisions that say that that health exception is necessary for these abortion regulations to be constitutional. Otherwise, they say that the Supreme Court has ruled it would be an undue burden on a woman's right to have an abortion.

MARGARET WARNER:

And that's what the First Circuit Court of Appeals had found, that in fact the whole thing was unconstitutional because that did not happen.

JAN CRAWFORD GREENBURG:

The First Circuit looked at a couple different things. It focused mainly on the health exception although it said a couple of other exceptions should have been better written as well.

But it struck down the entire law; it threw the whole law out as unconstitutional because it imposed this undue burden on the woman's right to choose.

MARGARET WARNER:

All right. So going first with the New Hampshire attorney general, Ms. Ayotte, and the solicitor general of the United States, and it was a pretty quick and heated exchange between Ms. Ayotte and Justice Breyer, among others. Let's listen.

KELLY AYOTTE:

New Hampshire's act can be applied to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion.

In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial by-pass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interest of the minor.

JUSTICE STEPHEN BREYER:

Well, let's imagine a real circumstance. A 15-year-old walks in at 2:00 in the morning on Saturday into the emergency room and the doctor looks at her. She's pregnant. She has this very high blood pressure, whatever. And the doctor thinks to himself, he think, well, immediate abortion. No question. Immediately deliver the child. If I don't, I don't think she's going to die but she'll never have children.

And he's thinking that. What's supposed to happen? He calls up Pam Hedlagagio or Pam Livingston and there's no answer. It's two in the morning. And there's, you know, one of those things, leave a message. Okay? Shall I call your parents? No. They don't know I'm pregnant. Now, what's supposed to happen?

KELLY AYOTTE:

Justice Breyer, in those instances the physician could perform the immediate abortion.

JUSTICE STEPHEN BREYER:

It doesn't say that in the statute. It suggests the contrary.

So what is the particular provision of New Hampshire law that tells that — I mean, the doctor — all these things are, you know, questions of probability. He doesn't want to risk being prosecuted and he doesn't want to risk losing his license.

And so what particular provision — he happens to have his lawyer with him. (Laughing) What does the lawyer say? Okay. What's the provision that saves him? There's no health exemption in this statute.

MARGARET WARNER:

Now several of the justices seemed to be looking for a way to make this health exemption without invalidating the entire statute.

JAN CRAWFORD GREENBURG:

That's right. And as we just saw in that exchange, the attorney general of New Hampshire said, look, there are other provisions in New Hampshire law, different laws that would allow the doctor to perform an abortion; in that situation he would not be prosecuted so he had the discretion to go ahead and perform the abortion

But then in other exchanges with other justices, just as you said, there was this real effort to try to find a way to save this law, to have the lower court rethink the issue and maybe just look at the specific circumstance where the girl had come into the emergency room without throwing out the whole parental notification law.

MARGARET WARNER:

I thought we would listen to one in which Justice Scalia and the solicitor general, Mr. Clement and Justice Souter argued about whether the court or the New Hampshire legislature was the best venue for doing that. Let's listen to that.

JUSTICE ANTONIN SCALIA:

Do you agree with Justice Breyer that the legislature can draw this with more precision than a court could?

PAUL D. CLEMENT:

No, I don't.

JUSTICE ANTONIN SCALIA:

That seems to be a solution — that the legislature can make it precise although the court could not.

PAUL D. CLEMENT:

I think the court could issue any order a legislature could issue. And I think the fact that the court would have some discretion is an answer to the argument that, oh, well, if you leave this to the courts you're cutting the legislature out of this.

JUSTICE DAVID SOUTER:

Why wouldn't it be — excuse me — why wouldn't it be an abuse of discretion in this case — because there seems to be an ample record here that the legislature or a majority of the legislature made a conscious choice that they would rather have no statute than a statute with a health exception in it?

They deliberately said the only statute we want is one without a health exception. Therefore, even if you touch all the bases that Justice Breyer has laid out, don't you end up with a position that if we were to craft such a limitation, we would be flying quite precisely in the face of the expressed legislative intent.

PAUL D. CLEMENT:

I don't think that's right, Justice Souter. And I think it's because you have to be careful. I think it's easy to use a loose language about a health exception. And I think if you look at the First Circuit opinion, they seem to suggest there needs to be a health exception.

MARGARET WARNER:

Jan, how did you read that exchange?

JAN CRAWFORD GREENBURG:

Well, Justice Souter today on the bench was clearly the most sympathetic to argument by Planned Parenthood that this law was just flatly unconstitutional; there was really no way to save it.

But the other justices, some of the more conservative justices, suggested that, let's look at some of the other provisions in the law, that judicial by-pass, for example, that the attorney general had mentioned in our earlier exchange in which, you know, the judge could see if perhaps there was a reason not to notify the parents.

Perhaps there are other areas in the law the lower court should have focused on before it just threw the whole statute out.

MARGARET WARNER:

And, in fact, they kept wrestling with this issue particularly involving whether the lower court either should have decided it more narrowly or could be forced to. There was an exchange with Justice Ginsburg, the lawyer for Planned Parenthood and Justice O'Connor. Let's listen to that.

JUSTICE RUTH BADER GINSBURG:

Why wouldn't it be entirely adequate to protect what you're concerned about to say, this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there's imminent danger to health and then all those imminent danger to health situations would be left unregulated? The statute doesn't reach them. But non-emergency cases would continue to be governed by the statute.

Why couldn't, in other words, why wasn't that the appropriate judgment for the First Circuit to have entered in this case, to say statutes apply to non-emergency cases but for emergency cases there is effectively no law.

JENNIFER DALVEN:

Your Honor, that would solve the constitutional problem in this case but I believe it is not the best course for three reasons: First, as this court has already discussed, the states around the country have adopted at least ten different medical emergency definitions. And this court has no way to know which if any of those formulas —

JUSTICE SANDRA DAY O’CONNOR:

But is there any objection by you to remanding this thing, to let it be more narrowly focused?

JENNIFER DALVEN:

I believe it is not the better course. We can't tell what exception the New Hampshire legislator would have chosen.

In addition, I think there is real cause for concern about rewriting this law for New Hampshire. If this court says that that's the proper course, I believe that the federal judiciary would be faced with rewriting abortion law after abortion law.

MARGARET WARNER:

So now what did you conclude from this particularly the role that O'Connor and Ginsburg played?

JAN CRAWFORD GREENBURG:

First of all, you saw the lawyer for Planned Parenthood picking up on Justice Souter's point that, you know, the courts don't really need to be doing this. This law is unconstitutional.

MARGARET WARNER:

Period.

JAN CRAWFORD GREENBURG:

Start over, legislature. Exactly.

But Justices Ginsburg and O'Connor suggesting what it seems like the court is wanting to do here which is just write an opinion, send it back down to the lower court and say, rethink it more narrowly, save part of the statute and move on.

Justice O'Connor's role also is very interesting because, as you know, she's retiring. She's only on the bench until her successor is confirmed. So we don't even know if her vote is going to count in this case because if she has retired or if her successor has been confirmed before this opinion has been released, her vote won't count.

And she's been the swing vote, the key vote in all of these abortion regulation cases. They've been decided — a lot of them – five to four. So her vote, whether she's here or not, could be significant.

But today it looked like perhaps this wasn't going to be a five/four case because you saw some of the other justices coming together to try to reach this more narrow conclusion.

MARGARET WARNER:

So, many of them interested in doing that.

JAN CRAWFORD GREENBURG:

Yes.

MARGARET WARNER:

Now, finally there was of course huge curiosity about where Chief Justice Roberts would come down in this case. And listening to the arguments he basically would just pepper with occasional questions.

And we're just going to play one and then just maybe you can decode it for us.

CHIEF JUSTICE JOHN ROBERTS:

If your objection goes to the adequacy of the by-pass procedure, what is wrong with a pre-enforcement challenge by physicians presumably withstanding, challenging the by-pass procedure?

Why should you be able to challenge the act as a whole if your objection is so narrowly focused?

MARGARET WARNER:

All right. So what did you take from that and the other things he said?

JAN CRAWFORD GREENBURG:

Well, he had — his questions were very consistent throughout the argument. He was aggressive in making this point. And he kept coming back to it throughout the course of the argument. He was active from bench.

And he is again trying to narrow the focus, not only of how you challenge this law; he's saying that doctors should be perhaps challenging this in the first instance.

MARGARET WARNER:

Doctors who would actually face a true situation.

JAN CRAWFORD GREENBURG:

Right. And when that situation actually occurred as opposed to some, as happened in this case, Planned Parenthood sued before the law even took effect based on some hypothetical situation that could arise in the future.

So he's actually kind of looking to see a way of narrowing even the way you would challenge this law in the outset and on a more narrow way and perhaps save the law again in a more narrow way than the court had done below in the First Circuit.

MARGARET WARNER:

And finally in your comments earlier about Justice O'Connor, so were you suggesting that you think there's a strong likelihood this may have to be reargued?

JAN CRAWFORD GREENBURG:

Margaret, I did going in. I mean, I thought that this case and I think a lot of people if you talk to them thought that this case looked like it was going to be five/four. Justice O'Connor has been one of the justices providing often the fifth vote saying that we need that health exception in these state abortion laws or we're going to strike them down.

That's been pretty consistent but after this argument it was just so interesting seeing justices looking for ways to maybe save the statute, send it back to the lower court, have the lower court perhaps rethink it in a more narrow way.

So we may not get that five/four. And, as a result, it wouldn't be the four/four if she retired before her successor were confirmed, which would mean it would have to be reargued. So we could actually get a decision that lasts in this case.

MARGARET WARNER:

All right. Jan, thanks so much.

JAN CRAWFORD GREENBURG:

You're welcome.