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Supreme Court Kicks Back Contested Abortion Law for Minors

A lower court was wrong to declare unconstitutional a New Hampshire statute restricting abortions for minors, the U.S. Supreme Court ruled unanimously on Wednesday.

The 1st Circuit Court of Appeals went too far in striking the entire statute when only a part of it was problematic, wrote Justice Sandra Day O'Connor, who authored the high court's opinion.

It was not the court's job to override the work of the New Hampshire Legislature by trashing the statute in its entirety, O'Connor wrote in the rare unanimous opinion.

Several justices had wondered during oral arguments in November why the lower court did not instead block application of the law in medical emergencies, which could have forced New Hampshire lawmakers to amend the Parental Notification Prior to Abortion Act.

"We try not to nullify more of a legislature's work than is necessary, for we know that '[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people,'" O'Connor wrote, citing court precedent.

"The lower courts need not have invalidated the law wholesale," O'Connor continued. "So long as they are faithful to legislative intent, then, in this case, the lower courts can issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application."

Wednesday's decision was a surprise, as the case had been anticipated as the court's most significant revisiting of abortion regulations in five years. Justices Antonin Scalia and Clarence Thomas, who unfailingly vote to uphold restrictions out of the belief that the Constitution does not support abortion, joined justices with whom they often disagree on the issue.

Ayotte v. Planned Parenthood of Northern New England was also the first high court abortion case to come before Chief Justice John Roberts, and it provided no clues as to where he falls on the abortion spectrum.

The Supreme Court ordered the lower court to reconsider the statute, which sets guidelines for parental notification 48 hours before a minor can obtain an abortion but does not include an explicit exception for the health of the pregnant girl. The Supreme Court has established that abortion restrictions must include exceptions for when the health or life of the mother is imperiled.

While New Hampshire Attorney General Kelly Ayotte successfully argued that the 1st Circuit Court was wrong to invalidate the entire statute, the fate of the statute remains very much up in the air.

"We certainly welcome the decision because it reaffirms [that] abortion laws have to include exceptions for health," said Louise Melling, director of the ACLU Reproductive Freedom Project, a co-respondent in the case. "It leaves it open for us to go back down to argue that the legislature intentionally omitted the health exception. We will ask the court to recognize that and strike it down in its entirety."

The bill's sponsors considered the decision a victory for them as well.

"I'm really very pleased," said state Rep. Kathleen Souza, sponsor of the legislation. "It's not only important for New Hampshire families but the families of neighboring states, because their laws on parental notification were being thwarted by our lack of law."

Why the legislature did not simply include the health exception, which would be in keeping with years of court precedent, is "an open question," O'Connor said. Several justices in November expressed annoyance with the New Hampshire Legislature for refusing to include the health exception and seemed sympathetic to the view that the statute could not stand without it.

Souza, who called the decision a "gift," said she felt confident lawmakers would not be forced to insert a health exception, saying that the court's definition of health was overly broad, and that other state laws that don't specifically address abortion cover emergency medical care. She also said doctors may abuse a health exception to perform abortions when they are not medically necessary.

It seems unlikely that the 1st Circuit would change its mind and accept the statute as is, but Souza said she was hopeful that the law would be allowed to stand.

"Maybe the definition of health will be refined even more," she said.

Ayotte agreed that the lower court would have to clarify what she said was its murky definition of health.

"I think it would be important to distinguish health from what the opinion addresses, which is medical emergencies," Ayotte said. "What the court would be considering is how to craft or whether to craft a narrow injunction that would prohibit the act from being enforced if a medical emergency applies. That's our position, that's what we would be arguing the court should do."

Ayotte stressed that the attorney general's office was not taking a policy position on the law, but only advocating for the legislature's ability to enact laws. Gov. John Lynch, a Democrat, openly opposed the lawsuit, which is "consistent with his rights and duties as governor," Ayotte said.

Defenders of the act argued that a provision that enables a judge to approve an abortion without parental notification in the event of a medical emergency was sufficient to safeguard the mother's health. But Planned Parenthood countered that the provision presented an "undue burden" for the mother and did not safeguard doctors from prosecution.

The justices did not weigh the judicial bypass provision against the constitutionally-mandated health exception, but O'Connor implied they didn't have to.

"A state may not restrict access to abortions that are 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother,'" O'Connor wrote, again citing court precedent.

The fact that the court did not revisit the "undue burden" standard may be why Wednesday's decision was reached unanimously. But the fact that the court let precedent stand is not necessarily insignificant.

"You could read it as at least casting doubt on whether the judicial bypass provisions were sufficient," said Gillian Metzger of Columbia University Law School and a former law clerk for Justice Ruth Bader Ginsburg. "The court is intentionally not directly addressing this factual issue, but you can read into it an implied agreement with the lower court findings."

If the lower court interprets the Supreme Court's opinion in that way it could very well invalidate the statute again, ACLU's Melling said, but on the grounds that the New Hampshire Legislature was intentionally circumventing the high court's rulings on the health exception.