http://www.bloomberg.com/apps/news?pid=10000103&sid=atbqFPVDdmQA&refer=usSeveral U.S. Supreme Court justices tried to find a middle ground as they grappled with their first abortion dispute in five years, a challenge to a New Hampshire parental notification law.
The justices, hearing arguments today in Washington, scrutinized a lower court ruling that barred the law from taking effect because it didn't specifically allow emergency abortions to protect the mother's health.
Several members of the court, including abortion-rights supporters Stephen Breyer and Ruth Bader Ginsburg, suggested the 1st U.S. Circuit Court of Appeals could have stopped short of invalidating the entire parental notification statute. Ginsburg asked why the lower court didn't say the statute is ``fine for non-emergency cases, but for emergency cases, there is no law.''
Chief Justice John G. Roberts, hearing his first abortion case, suggested that any problems with the law could be handled by a narrower suit, one seeking only to block unconstitutional applications of the statute to emergency situations.
``Why should you be able to challenge the act as a whole if your objection is so narrowly focused?'' Roberts asked Jennifer Dalven, who represents women's health clinics and other groups challenging the law.
Dalven argued that invalidation of the whole statute was the best approach. Otherwise, ``the federal judiciary will be faced with rewriting abortion law after abortion law after abortion law,'' she said.
Health Risks
Dalven said the notification requirement potentially would lead to ``catastrophic'' delays, putting mothers at risk of liver and kidney damage, strokes and infertility.
New Hampshire Attorney General Kelly Ayotte said the law addresses those risks by letting pregnant girls go to a judge for permission instead of notifying their parents. She called a true emergency ``the rare case.''
Justice Anthony Kennedy, potentially the swing vote in the case, asked Dalven whether making ``one phone call to a judge'' would truly hinder doctors.
``There can be nurses or attendants that can get the judge on the line,'' Kennedy said.
Ayotte said doctors would be able to perform abortions in health-emergency cases even if they couldn't reach a judge. She said her office could issue a legal opinion clarifying that point.
Legal Liability
That explanation didn't satisfy some justices who questioned whether such an opinion would adequately protect doctors from legal liability given the statute's silence on the question.
``How do we know that that's actually the law?'' Breyer asked.
Bush administration lawyer Paul Clement argued that a true emergency was a ``one in a thousand possibility,'' not enough to invalidate the statute under the court's abortion-rights precedents.
The case is only the second abortion dispute at the high court since it reaffirmed the constitutional right in the 1992 Planned Parenthood v. Casey case. The court soon will consider whether to add another case, the Bush administration's bid to revive a federal ban on a procedure critics call ``partial birth'' abortion.
The justices also heard arguments today in a 19-year-old dispute over abortion clinic blockades. The Pro-Life Action League and Operation Rescue want the court to say that a federal anti-extortion law doesn't authorize judges to ban blockades at clinics.
Legal Standard
In the New Hampshire case, the justices are considering whether bids to invalidate abortion restrictions must meet a tough legal standard that applies in other types of cases. The state and the Bush administration say abortion laws should be overturned only if they can't ever be applied in a constitutional manner.
The case also tests whether abortion regulations must contain an explicit exception for cases in which the mother's health is endangered. Although the New Hampshire law allows abortions without parental notice or judicial approval to prevent a girl's death, it says nothing about health emergencies.
The justices are scheduled to rule by July. The case is Ayotte v. Planned Parenthood of Northern New England, 04-1144.
