Justices to Rule on Abortions for Minors

The Supreme Court on Monday agreed to hear an abortion case, its first in five years, that will decide whether pregnant minors who face a health emergency may undergo the procedure without notifying their parents.

Thirty-three states have laws that require doctors to notify a parent, or obtain their consent, before performing an abortion on a girl under age 18. Californians will have a chance to vote on a parental notification law, either in a special election this fall or on the next scheduled vote in June 2006.

The new case comes from New Hampshire and will be heard by the justices this fall. The court will not decide whether states may have parental notification laws. Instead, the justices will rule on whether such a law must include an exemption for girls who face a medical emergency.

The case could yield a narrow ruling on whether the law itself must mention health emergencies. However, the justices could rule broadly on whether parental notification laws may stand, even if they may be unconstitutional in some situations.

For more than a decade, the Supreme Court has split on when laws should be struck down “on their face,” as opposed to how they might apply to individuals in specific situations. This rather abstract dispute arises often in relation to the issue of abortion. Not all minor pregnant girls face health emergencies, but some might.

Chief Justice William H. Rehnquist and Justice Antonin Scalia have said that laws should be allowed to stand even if they would violate the constitutional rights of certain persons in some situations. But other justices, including John Paul Stevens and Sandra Day O’Connor, have said laws should be struck down as unconstitutional if they violate the rights of a significant number of people.

Lawyers for New Hampshire, whose parental notification provision was struck down by a federal appellate court before it took effect, urged the Supreme Court on Monday to hear their appeal and rule that such abortion laws should stand as written. If a minor girl faces a health emergency, she can seek an exemption through the courts, they said.

This question “presents an important issue of constitutional law which should be settled by this court,” New Hampshire Atty. Gen. Kelly A. Ayotte said in her petition.

Since the Roe vs. Wade ruling in 1973, the Supreme Court repeatedly has struck down laws that limit abortion rights as written, without deciding how they apply to particular individuals. Many of the rulings have been 5-4.

The court doesn’t disclose how justices vote in deciding whether to hear a case, but its rules require that at least four must do so. If the court were to rule that laws regulating abortion may stand as written, it could have a broad effect by upholding more restrictions on the procedure.

Dara Klassel, an attorney for the Planned Parenthood Federation in New York, said Monday that she found that prospect ominous.

“This would make no sense in the abortion context. You would have to raise challenges on a case-by-case basis,” she said. “It was very surprising they agreed to take this up.”

But state officials say abortion regulations should not be struck down entirely just because they might be too restrictive in certain situations.

The New Hampshire dispute illustrates the issue.

Two years ago, New Hampshire lawmakers made it illegal for doctors to perform an abortion on a minor until “at least 48 hours after written notice of the pending abortion” was delivered to one of her parents. The law makes an exception when the abortion “is necessary to prevent the minor’s death.”

Lawyers for the American Civil Liberties Union and the Planned Parenthood Federation challenged the measure as unconstitutional because it did not allow doctors to act in the face of a health emergency that was not immediately life-threatening. The law as written “forces physicians to delay emergency medical care until a young woman is facing imminent death,” said Jennifer Dalven, deputy director of the ACLU’s Reproductive Freedom Project.

A federal judge agreed with the challengers and blocked the law from taking effect. In November, the U.S. 1st Circuit Court of Appeals in Boston upheld that decision and struck down the law as unconstitutional, saying it forces physicians “to gamble with their patient’s lives ... [or] risk criminal and civil liability.”

When New Hampshire’s lawyers appealed to the Supreme Court in February, they argued that the law in most instances raised no constitutional concern. For that reason, they said, the law should be allowed to stand. Minors who face a health emergency can ask a judge to waive the notification requirement, they said.

The justices issued a one-line order Monday saying they would hear Ayotte vs. Planned Parenthood of Northern New England in the next term, which begins in October.

In the past, six of the nine justices have supported the right of pregnant women to choose abortion. However, Justice Anthony M. Kennedy has voted with the dissenters to uphold stricter regulatory laws on abortion.

The high court’s last abortion case was decided five years ago, and it resulted in a bitter split. The issue of women’s health was at the center of that dispute as well.

On a 5-4 vote, the court struck down as unconstitutional a Nebraska law that banned a type of late-term abortion because it would force patients seeking a midterm abortion to undergo riskier surgery. O’Connor cast the key vote for the majority and insisted that states may not endanger the health of women who seek legal abortions.

Kennedy strongly dissented and said the ban on what critics called “partial-birth” abortions prohibited only one method of performing such an abortion.

Since then, Congress has passed a federal law banning that type of abortion, but without including an exception when the health of the woman is at risk. This law directly challenged O’Connor’s view, and a case testing the law is expected to reach the high court in the next year or two.