Justices consider parental notification case

By Tom Strode - Dec 15, 2005

The Supreme Court heard oral arguments Nov. 30 on whether a lack of a health exception is enough to gut a state law that requires parental notification for an underage girl’s abortion.

A decision in the case, which marked the first time the high court has considered a state abortion restriction in five years, appeared difficult to predict after the arguments.

The justices heard arguments between a lawyer for Planned Parenthood of Northern New England and the attorney general of New Hampshire over that state’s 2003 parental notice measure, which required a doctor to notify a parent or guardian at least 48 hours before performing an abortion on a girl under 18 years of age. Solicitor General Paul Clement also supported the state on behalf of the federal government.

A federal judge struck down the New Hampshire law because it did not include an exception to protect the girl’s health, and the First Circuit Court of Appeals upheld the ruling.

Clement told the justices, “What you have before you is really a case where it’s literally a one in a thousand possibility that there’s going to be an emergency where the statute won’t operate. And the real question for you is: Faced with that kind of case, do you invalidate one thousand applications of the statute knowing that nine hundred and ninety nine of them are constitutional?”

Defenders of the law point out it is modeled after a Minnesota parental notice measure that the Supreme Court upheld in 1990. They also contend a woman’s health has been defined so broadly by the justices since 1973 as to include any reason for having an abortion.

“The issue is that there is an effort by the pro-choice side to finally capture the absolute right to abortion that they have been seeking,” National Right to Life Committee General Counsel James Bopp told reporters after the arguments. If all laws that provide for such requirements as informed consent and sharing alternatives to abortion “are subject to being waved by the attending physician because he or she considers the very broad health interests of the woman to be at stake, then that would nullify every single law that regulates abortion,” Bopp said. “They want an all-encompassing, absolute right to abortion without any regulation, and that’s how they’ve approached this case in this court, and that is what is troubling the justices.”

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