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Justices weigh parental notification law
Thursday, December 01, 2005
  

Pennsylvania has parental consent law
   Pennsylvania is one of 35 states that enforce laws requiring parental consent or notification prior to a minor's abortion. (Nine states have laws on the books that have been blocked.)
   But Pennsylvania's Abortion Control Act contains an explicit exception for a "medical emergency" as well as a so-called judicial bypass that allows a teenager to convince a judge that she has good reasons for not informing a parent.
   According to the state Department of Health, 4,142 women 18 years of age and younger received abortions in 2004. The department does not keep statistics on how many teen-agers seek a judge's permission to have an abortion without notifying a parent.

 

 

WASHINGTON --In the first major abortion case to be argued before it in five years, the Supreme Court seemed inclined yesterday to reinstate a New Hampshire law requiring that doctors planning to perform an abortion on a minor notify one of her parents.

Under the state's two-year-old Parental Notification Prior to Abortion Act, a doctor may not perform an abortion on a minor until 48 hours after one of the parents has been notified.

The law does permit a teenager who doesn't want to inform her parents to try to convince a judge that she is mature enough to make the decision on her own.

Notification also can be waived if the doctor decides an immediate abortion is necessary to prevent the patient's death, but there is no exception for protecting the "general health" of the mother.

Citing the lack of such a provision, the 1st U.S. Circuit Court of Appeals in Boston declared the law unconstitutional and issued an injunction preventing any of its provisions from being implemented.

But yesterday most justices -- including the new chief justice, John G. Roberts Jr. and swing voter Sandra Day O'Connor, who may not be on the court when the case is decided -- were receptive to New Hampshire's argument that if the law were reinstated doctors wouldn't have to inform parents when an immediate abortion was necessary to prevent serious health problems.

"In that unlikely event, a doctor would not be subject to civil liability or criminal prosecution," New Hampshire Attorney General Kelly A. Ayotte told the court, noting that a separate state law allows for a defense of "competing harm."

Ms. Ayotte was supported by U.S. Solicitor General Paul D. Clement, the Bush administration's chief courtroom lawyer. Mr. Clement told the court that the 1st Circuit was wrong to block implementation of the entire New Hampshire law because of the "one in a thousand possibility" that a doctor would have to perform an abortion before a parent could be notified.

But Jennifer Dalven, a lawyer for Planned Parenthood of Northern New England, told the justices they should consider the law as it was written.

She said its lack of a health exception could lead a doctor to waste valuable time trying to get in touch with a parent.

"Every minute is critical," she said. "Every minute puts them at risk of liver damage or infertility."

But even justices who were sympathetic to the possibility of emergency abortions on minors suggested that the problem could be addressed without declaring the whole statute unconstitutional.

Chief Justice Roberts seemed intrigued by the possibility of what he called a "pre-enforcement challenge" in which doctors would argue to a court -- not in reference to any particular patient -- that the law didn't give judges enough power to bypass the parental-notification requirement.

Ms. Ayotte, indicating that the state wouldn't object to such a procedure, said it would be "quite a different lawsuit from this one" because it wouldn't render the entire law unconstitutional.

Yesterday's argument -- one of two involving abortion -- was viewed by activists on both sides as significant and both "pro-choice" and "pro-life" demonstrators gathered outside the court building. The case attracted attention because of the health-exception issue and because New Hampshire had argued that abortion laws, like other laws, should be declared unconstitutional "on their face" only if a court found that there was "no set of circumstances" in which the law could be constitutional.

The high court has not followed that standard in abortion cases, ruling for example in 1992 that Pennsylvania's requirement that women inform their husbands if they were planning to have an abortion was unconstitutional even though notification wouldn't be a problem in most cases.

Although several justices referred yesterday to the debate about how easy it should be for judges to block complete laws dealing with abortion, the issue did not loom as large in yesterday's argument as many legal observers had predicted. The justices focused more on the fact that the appeals court could have issued a narrower ruling that "severed" the issue of medical emergencies from other applications of the law.

"Is there any objection to remanding this thing [to the appeals court] to have it more narrowly focused?" Justice O'Connor asked Ms. Dalven.

Ms. Dalven replied that the courts shouldn't try to salvage an unconstitutional law by rewriting it.

If federal Judge Samuel A. Alito Jr. is confirmed to succeed her, Justice O'Connor probably won't be on the court when it decides the New Hampshire case. That possibility had alarmed abortion-rights advocates, because she was in the five-justice majority in a 2000 ruling in which the court struck down Nebraska's law against so-called "partial birth" abortion because it didn't contain an exception to protect the woman's health.

But yesterday Justice O'Connor seemed inclined to reinstate the New Hampshire law, as did Justices Stephen Breyer and Anthony Kennedy, provided that some arrangement could be crafted for medical emergencies in which timely parental notification was impossible. Only Justice David H. Souter seemed fully to accept Ms. Dalven's argument that the law was unconstitutional on its face.

Justice Antonin Scalia, a longtime critic of Roe v. Wade, was skeptical of the scenario in which notifying a parent would create a dangerous delay in a medically necessary abortion.

"It takes 30 seconds to place a phone call," Justice Scalia told Ms. Dalven.

If a delay that brief posed a problem, he added, "the doctor had better not put on his gloves."

In yesterday's other argument, a lawyer for anti-abortion activists asked the court to lift an injunction against Operation Rescue and other organizations that dates back to clinic blockades in the 1980s and early 1990s.

In 2003, the justices threw out a racketeering judgment against Operation Rescue and the Pro-Life Action Network on the grounds that the protesters' acts did not involve robbery or extortion, the main elements of a federal law called the Hobbs Act that also refers to "physical violence ...in furtherance of a plan or purpose to do anything in violation of this section."

Anti-abortion activists hailed the 2003 decision as a complete victory, but the 7th U.S. Circuit Court of Appeals in Chicago concluded that four of the 121 acts ascribed to the protesters by a jury might still amount to a violation of the Hobbs Act because they involved "physical violence."

Alan Untereiner, a lawyer for anti-abortion activist Joseph Scheidler, urged the justices to reaffirm their 2003 decision, which seemed to wipe out all of the violations that gave rise to a permanent injunction against blockades and violent clinic protests.

Mr. Untereiner also argued that the Hobbs Act did not apply to acts of violence unrelated to extortion and robbery, a position supported by Lisa S. Blatt of the U.S. Solicitor General's Office.

But Duke University Law Professor Erwin Chemerinsky, representing the national Organization for Women, told the court that "the 7th Circuit did exactly the right thing" in proposing that a trial court revisit the four violations ascribed to Operation Rescue and determine if they violated the Hobbs Act and thus justified a continuation of the injunction.

No justice seemed eager to reopen the case or rush to a decision on whether the Hobbs Act prohibits acts of violence not related to robbery or extortion.

First published on December 1, 2005 at 12:00 am
Michael McGough can be reached at mmcgough@nationalpress.com or 1-202-662-7025.
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