Justices Send Back Parent-Notification Law

Lower Court Must Modify N.H. Abortion Measure Instead of Striking It Down

The unanimous decision was written by Justice Sandra Day O'Connor and will probably be her final opinion on the high court. The justice, who has cast the decisive vote on abortion cases for more than two decades, is to step down after her successor is confirmed. Next week, the Senate Judiciary Committee is scheduled to consider the nomination of Samuel A. Alito Jr. as her replacement, and his views on abortion could play a pivotal role in the vote.

The New Hampshire law, adopted in 2003, allows an exception to parental notification if a pregnant teenager's life is at risk but does not address whether the procedure may be performed if she faces other non-life-threatening health emergencies. Two federal courts in New England had said that omission makes the law unconstitutional, and it has never been enforced. The state of New Hampshire appealed to the Supreme Court, arguing that the court's precedents do not require an explicit health exception. The justices did not rule on that broad claim but did agree with New Hampshire yesterday "that the lower courts need not have invalidated the law wholesale," as O'Connor put it.

At the same time, O'Connor's opinion emphasized three propositions that, she said, are "established": State parental notification laws are constitutional; the court's precedents hold that states may not restrict access to abortions necessary to protect the life or health of the mother; and, in a very small number of cases, immediate abortion is necessary to avert irreversible health damage. That means, she wrote, that it would be unconstitutional to apply New Hampshire's law to minors facing "significant health risks." But, O'Connor wrote, before lower courts could craft a more narrow remedy -- one that might strike down the law only for this small category of major health emergencies -- they would first have to settle a lingering "dispute as to whether New Hampshire's legislature intended the statute to be susceptible to such a remedy."

All but six states have some form of statute that says girls younger than 18 must involve at least one parent or guardian in the decision to terminate a pregnancy. As required by a 1990 Supreme Court decision, those laws generally allow teenagers to avoid telling a parent if they can convince a judge that they would face abuse or that they are mature enough to make the decision on their own.

New Hampshire's version makes it a crime for a doctor to perform an abortion on a minor unless the doctor has written proof that at least one parent has been notified -- or the doctor certifies the girl will die without an abortion.

But unlike the parent-involvement laws in most states, the New Hampshire statute does not explicitly let a doctor proceed when the girl may be about to suffer serious injury short of death.

Though written by O'Connor, yesterday's ruling closely followed an approach outlined not only by her but also by Chief Justice John G. Roberts Jr. in remarks at a Nov. 30 oral argument on the case.

Both sides found reason to cheer the result. New Hampshire Attorney General Kelly A. Ayotte said in a prepared statement that the "Court's opinion respects the New Hampshire Legislature's authority to adopt parental notification laws." She said that the U.S. Court of Appeals for the 1st Circuit, based in Boston, "can craft a narrow injunction that would adequately address emergency cases, while allowing New Hampshire's Parental Notification Act to be effective."

Jennifer Dalven, a lawyer for the American Civil Liberties Union who represented the abortion providers in the Supreme Court, said the "ruling tells politicians they can't jeopardize women's health when they pass abortion laws."

Yesterday's opinion barely touched what seemed to be the central issues when the case, Ayotte v. Planned Parenthood of Northern New England , No. 04-1144, came to the court: whether the New Hampshire law is constitutional, and how the court should go about deciding its constitutionality.

In 1987, in a case that was not about abortion, the court ruled that a law could be struck down "on its face" -- that is, before it goes into effect -- only if there is no possible constitutional way to enforce it.

But in an important 1992 ruling, Planned Parenthood v. Casey , the court seemed to apply a different standard to state abortion regulations, noting that such rules could not pose an "undue burden" to women in "a large fraction of cases."

If the court applied the more restrictive 1987 standard to abortion laws such as New Hampshire's, it would become much harder for abortion rights advocates to defeat regulations in court.

And that could have affected the eventual outcome of the Bush administration's appeal of lower-court rulings striking down the 2003 federal ban on the procedure opponents refer to as "partial birth" abortion.

The Bush administration supported New Hampshire in yesterday's case, telling the court it "may have direct relevance" to its partial-birth appeal.

In its closed-door conference tomorrow, the court will discuss whether to hear that appeal. There is just enough space on the court's argument calendar for a hearing and ruling before the current term ends in June, though the court also has other options: waiting, returning the case to lower courts for reconsideration in light of yesterday's opinion, or declining to hear it.

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