Top court reviews abortion notice law

WASHINGTON – The U.S. Supreme Court grappled with its first abortion case in five years on Wednesday, considering whether a parental notification law must provide an exception when the health of an abortion-seeking minor is at risk.

Several justices seemed to search for some middle-ground solution to the case, the first abortion controversy to reach the court under its new chief justice, John Roberts. Abortion has been one of the court’s most contentious issues.

A number of justices asked whether the entire law should have been struck down or whether a narrower ruling could have been made that the New Hampshire law does not cover emergency health situations for minors seeking an abortion.

«Why should you be able to challenge the act as a whole if your objection is so narrowly focused?» Roberts asked the attorney who opposed the law.

The case does not involve a challenge to the landmark Roe v. Wade decision in 1973 that established that women have a constitutional right to abortion.

And it could end up being argued again if the justices are split by a 4-4 vote and cannot get out a decision by the time retiring Justice Sandra Day O’Connor leaves the court.

O’Connor, who often has cast the decisive vote to strike down abortion restrictions, plans to step down when her replacement is confirmed. Conservative Judge Samuel Alito has been named to replace her, and the Senate is expected to vote on his nomination in January.

O’Connor said the entire law had been invalidated and, like Roberts, questioned whether the case could be narrowed. «Obviously, it’s a matter of concern,» she said.

The New Hampshire law requires that a parent be notified 48 hours in advance of any abortion for anyone under age 18. It includes an alternative procedure of getting a judge’s approval. It provides an exception when the minor’s life is in danger, but not for non-life-threatening medical emergencies.

Justice Stephen Breyer cited the example of a 15-year-old girl who shows up in the emergency room at 2 a.m. on a weekend and has medical problems that would result in her infertility. She tells the doctor not to notify her parents.

«There’s no health exception in the statute,» Breyer said, after New Hampshire Attorney General Kelly Ayotte said the doctor could perform an immediate abortion.

Ayotte argued that it would be a «rare circumstance» when a minor would need an immediate abortion because of a health emergency.

Several justices appeared skeptical when she said that existing New Hampshire law would protect doctors from prosecution in such cases.

In its last abortion decision in 2000, the Supreme Court ruled that state abortion laws must provide an exception to protect the pregnant woman’s health. It struck down a Nebraska law that banned a type of abortion procedure.

A federal judge and a U.S. appeals court declared the New Hampshire law unconstitutional because it lacked provisions for an exception involving a medical emergency. The law, adopted in 2003, has never been enforced.

Solicitor General Paul Clement, the Bush administration’s top courtroom lawyer, also argued in support of the law. He said the opponents could have brought a narrower challenge.

Jennifer Dalven of the American Civil Liberties Union argued that the law was correctly struck down.

«The unfortunate reality is that some pregnant teens experience emergencies that require an immediate abortion,» she said, adding that they could suffer kidney and liver damage, strokes or infertility.

Justice Anthony Kennedy said the alternative procedure of getting approval from a judge might save the law, an issue that has yet to be litigated in the courts. «There can be nurses or attendants that can get the judge on the line,» he said.