Supreme Court on Abortion

TERENCE SMITH:

The Supreme Court announced today that it will hear arguments about required parental notification when an abortion is being performed on a minor. The case will be considered next term. It'll be the first time since 2000 that the court has considered an aspect of the highly divisive abortion issue. Joining us to tell us about the case and the day in court is NewsHour regular Jan Crawford Greenburg of the Chicago Tribune.

Jan, welcome. Explain what this case is all about.

JAN CRAWFORD GREENBURG:

This case came about in 2003 when the New Hampshire state legislature passed this law requiring that parents be notified 48 hours before their young daughters were going to get an abortion.

TERENCE SMITH:

Young being under 18.

JAN CRAWFORD GREENBURG:

Under 18, their minor daughters. There were a number of exceptions in the law including if the minor didn't want the parents to be notified she could go to a judge and ask that the judge allow her to bypass that notification. But the law did not contain an exception that would allow a doctor to perform the abortion if the minor's health were in danger or health were at stake.

So a group of abortion providers and Planned Parenthood sued to block the law before it ever took effect, and the lower courts agreed that the law was unconstitutional, because it did not contain that health exception to protect the minor's health.

TERENCE SMITH:

And the Supreme Court had in fact addressed this issue five years ago, in 2000, did it not?

JAN CRAWFORD GREENBURG:

Well, the last time that the court took up an abortion case involved a completely different state law, but yes, it was a health exception that at the end of the day decided that case. That involved a law from Nebraska, and a very controversial procedure called what's known as partial birth abortion. And the Supreme Court struck down the state's ban on that procedure, saying that it unduly burdened a woman's right to choose and it did not contain this health exception to protect the mother in certain circumstances.

Now, the state of New Hampshire argues that this case is completely different, that there are other areas in the New Hampshire law that would enable these young girls to get an abortion if her health were really in jeopardy, and they say that the Supreme Court doesn't need to step in at this point. I mean the Supreme Court does need to step in and reverse the lower court rulings, but that the courts should not have stepped in at this point.

TERENCE SMITH:

Right, they're saying it may not be in this law, but it's in New Hampshire law.

JAN CRAWFORD GREENBURG:

That's right.

TERENCE SMITH:

All right. There are a number of states, are there not, that have similar parental notification laws?

JAN CRAWFORD GREENBURG:

Forty-four states have parental notification laws, and some of those are worded a little differently and others have health exceptions. But certainly the ruling has, a ruling in this case could affect laws in a number of states. And beyond the narrow issue of the health exception, why this case is getting a lot of attention is that the state of New Hampshire in asking the Supreme Court to step in here and reverse the lower court ruling is arguing that lower courts have been too quick to strike down state restrictions on abortion.

The state of New Hampshire is arguing that the lower courts should use tougher standards when they're taking a look at state laws that impose these restrictions. So that ruling, if the court were to agree, that kind of ruling would have a much broader impact on a number of abortion restrictions, in completely different areas.

TERENCE SMITH:

Right. So that's the nub then, the issue of whether it gets extended to those others?

JAN CRAWFORD GREENBURG:

That's right and that's one reason why this case is going to be quite controversial and get a lot of attention when it comes up in the fall because the state officials acknowledge that a minor with a health exception doesn't come up that often, but the standard the courts use when they're evaluating claims that abortion restrictions are unconstitutional is something that happens in every case.

TERENCE SMITH:

Right. And it does come up. You said the case will be argued in the fall term. That puts something of a spotlight on who'll be on the court in the fall. Is it likely to be the same court?

JAN CRAWFORD GREENBURG:

Well, as you know it's been widely assumed that the Chief Justice William Rehnquist will retire next month. He's suffering from thyroid cancer; he's 80 years old, he's back in court. He's been participating in these decisions. But it is widely assumed, I believe the White House assumes, that he will step down at the end of this term.

And of course abortion rights groups were quick to seize on the timing of the court's announcement today. They said this highlights how high the stakes are, not only for the future of the Supreme Court, but for the appellate courts, these issues that courts are grappling with, the Supreme Court is very narrowly divided on some abortion issues, and so a new Justice or certainly two new Justices could make a difference in how the court decides some of these cases.

TERENCE SMITH:

Now you say it's widely assumed he'll step down, but it's been widely assumed for a while.

JAN CRAWFORD GREENBURG:

That's right; in fact I think we've been writing for the last five years that one, two or three Justices are going to retire. This court has been intact longer than any court with nine justices in U.S. history. And I think it's incredible to think that President Bush did not get a retirement in his first term.

But with the Chief Justice's illness and his age, the advancing age of other Justices, Justice Stevens for example is 85, people are starting to have more confidence when they say that it's assumed that one or more justices will step down in the next year or two or three.

TERENCE SMITH:

So if indeed it involved the Chief Justice and Justice Stevens and even Justice Sandra Day O'Connor, you'd really change the composition then of the court, on this issue.

JAN CRAWFORD GREENBURG:

On this issue and a number of issues. This court is very closely divided, 5-4, on any number of controversial issues, abortion, affirmative action, religion, gay rights.

On abortion, the court has been 5-4 on cases affecting restrictions, state efforts to scale back a woman's right to choose. What is not at issue in this case that the court took up today, and what is not in play even with one retirement or two is Roe versus Wade, whether or not the Supreme Court will abandon that landmark decision that said the Constitution guaranteed the woman a right to an abortion. That's not on the table.

There are three Justices on this court right now who would overturn Roe, one of them is the Chief Justice, one is Justice Scalia, one's Justice Thomas. So if the chief retires the president would have to appoint someone to replace him to overturn Roe, and then he'd still need two others. It's very difficult to get a justice to overturn Roe, as President Reagan found out with two of his appointees who refused to overturn that, so that's a difficult hill to climb.

But what's more likely is that the justices to replace the Chief and perhaps Stevens and O'Connor, if they were to retire the next few years, could join and overturn or uphold some of the state restrictions on abortion. For example, in 2000, the partial birth abortion ban, that was five to four. So some of the state laws that have scaled back a woman's right to choose, you know, those are the laws that could be in play.

TERENCE SMITH:

So we'll have to see not only, you know, exactly which issues come up, but who the Justices are to hear them.

JAN CRAWFORD GREENBURG:

That's right.

TERENCE SMITH:

Okay, Jan, thank you very much.