WASHINGTON – The Supreme Court on Wednesday deciphered highly technical legal arguments over an abortion law in the most closely watched case to come before the justices this term.
New Hampshire Attorney General Kelly Ayotte told the nine high court justices that a lower court was wrong to strike down the entire parental notification statute based on its finding that three pieces of the act were unconstitutional. The provisions in question, two of which deal with pregnant, underage girls seeking abortion in emergency situations, would only apply to a tiny fraction of them, Ayotte said.
The most contentious part of the act is its lack of an exception for an abortion without parental notification for a girl who finds herself in a medical crisis that is not immediately life threatening.
The Roe v. Wade decision that legalized abortion in 1973 directed legislatures that seek to limit abortions to provide exceptions "for the preservation of the life or health of the mother." Later, Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed life and health exceptions, and consequently the majority of U.S. abortion laws include them.
"The unfortunate reality is that some pregnant teens experience serious medical emergencies for which the appropriate care is indeed abortion. ... Delaying appropriate care for even a very short period can be catastrophic, and puts the teen at risk of liver damage, kidney damage, stroke and infertility," said Jennifer Dalven, deputy director of the ACLU Reproductive Freedom Project, who argued the case for the respondents.
Under the act, the girl would either have to notify her parents and then wait 48 hours for the abortion, or take her appeal to a judge who would decide whether to give her physician the green light.
Ayotte was hit hard and fast by questions as to why lawmakers did not simply include a health provision. She responded that doctors in the state could invoke the competing harms defense — that is, the danger to the girl outweighed the state's interest in the fetus — if their medical opinion in an underage abortion case was questioned.
Ayotte also said that the judicial bypass provision, whereby the physician could get an OK from a judge, sufficiently protected doctors from criminal and civil complaints. But Justice Stephen Breyer wondered what would happen if a doctor diagnosed a health condition requiring an immediate abortion on Thanksgiving morning, and all the judges were out of town and unreachable by phone. He surmised that some doctors would not be willing to risk their medical license or a prison sentence.
Justice Antonin Scalia countered that scenario by questioning the assertion that pregnant girls who wind up in the emergency room would have no recourse under the Parental Notification Prior to Abortion Act.
"Let’s assume New Hampshire sets up a special office open 24 hours a day, and this is the 'abortion judge,' and he can be reached anytime, anywhere. It takes 30 seconds to place a phone call. This is really an emergency situation? If that’s the case, the doctor better not put on his gloves," Scalia said to scattered laughter in the courtroom.
Chief Justice John Roberts, whose as-of-yet-nonexistent rulings on abortion dominated his Senate confirmation hearings last September, jumped on the respondents' acknowledgement that emergency situations for pregnant teens are rare.
"Why should you be able to challenge the act as a whole if your objection is so narrowly focused?" he asked.
"There’s nothing in the claim that says this is a facial challenge and we only want a declaration that the statute is unconstitutional, and if we can’t have that we want nothing else," Dalven said.
Breyer was skeptical of Ayotte's claim that the competing harms defense offered doctors as much protection as an abortion law that included an explicit exception for health.
"Some would say in good faith that the competing right to life of the fetus is more important than the girl's future infertility," he said, hinting he was uncomfortable leaving medical decisions open to interpretation by non-physicians.
Justice Ruth Bader Ginsburg pointed out that no claim at all would better protect physicians.
Several of the justices expressed bewilderment that the New Hampshire legislature had left off the health exception, knowing full well what the consequences might be.
"That the legislature actually rejected a health exception is disturbing," Justice Sandra Day O'Connor said.
Other justices seemed more annoyed because the 1st Circuit Court of Appeals did not opt to direct the legislature to amend the law. Overall, the justices seemed largely dissatisfied with Ayotte's explanations for why the exception was left out.
"There seems to be ample record here that the legislature or a majority of the legislature made a conscious choice that they would rather have no statute than a statute with a health exception in it," said Justice David Souter, echoing doubts that the problem before the court was one of a simple error of omission.
Souter added that if the court were to send the act back to the lawmakers, "We would be flying quite precisely in the face of legislative intent."
Despite the legislature's actions, Ayotte argued that the 1st Circuit erred in ordering an injunction against the act before it was even implemented because no actual harm was alleged. She said she did not object to pre-enforcement challenges, but that a more valid lawsuit would be a brought by a physician "when he has a patient in his office but it is not an emergency."
Justice Scalia, who along with Roberts seemed more sympathetic to Ayotte's arguments, said Planned Parenthood's challenge to the act should perhaps have specifically targeted just the lack of health exception instead of the entire statute.
During Solicitor General Paul D. Clement's arguments as a friend of the court supporting Ayotte, Justice Ginsburg attacked the notion that the act could only be ruled unconstitutional if it was "unconstitutional in every conceivable application."
Clement told the justices that even if the lack of health exception is unconstitutional, it is only one small piece of the statute, and thus "severable." In other words, the presence or absence of the health provision does not have a great altering effect on the statute as a whole.
But, Ginsburg quickly asked, "How do you sever a health exception that is not there?"
The two briefly sparred on whether the court should consider if the text of the provisions or possible applications of them could be severed. But Ginsburg seemed to have the final word when she reminded Clement that the job of writing laws belongs to the legislature.
"There's no problem with what the legislature did. It just didn't do enough. ... [courts] feel much more comfortable cutting something out than putting something in," she said.
Dalven told the justices that even though Planned Parenthood had no complaint with the bulk of the statute, the New Hampshire legislature seemed intent on keeping a health exception out of the act.
"They could have enacted a law that contained the medical exception and we could have all gone home," Dalven said.
But when O’Connor asked whether Planned Parenthood would have been satisfied with an order from the lower court directing New Hampshire lawmakers to revise the act, Dalven said it wouldn’t. Planned Parenthood also charges that the act inadequately protects the privacy of minors and that the death exception is too narrow.
The outcome of the Ayotte case could have far-reaching consequences for U.S. abortion laws. It is the biggest abortion case to be argued in five years, and is being heard less than seven weeks before Senate confirmation hearings are held for Samuel Alito, President Bush's nominee to replace retiring Justice O'Connor. If Alito joins the court before a decision is made, and the court is tied at 4-4, the case may have to be argued again.