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Legal Features

Ayotte v. Planned Parenthood

By Dave Caddell

On January 18, 2006, the United States Supreme Court handed down its most recent opinion related to the evolving issue of abortion. The issue being addressed by the High Court was whether a New Hampshire parental notification law places an "undue burden" on a girl's ability to exercise her fundamental right to an abortion. The New Hampshire law prohibits a physician from performing an abortion on an expecting minor until 48 hours after the minor's parent or guardian has received written notification of the abortion. The state law, however, has three exceptions that would allow the physician to perform the abortion prior to the parental notification: an abortion is necessary to preserve the mother's life, the parent or guardian certifies that he or she has already received notice, or a judge authorizes the physician to perform the abortion without parental notification based on the judge's belief that the minor is mature and capable of giving informed consent or that bypassing parental notification is in the minor's best interest. Not included, however, is an exception required by the courts that would permit an abortion without notice based on a physician's medical judgment that an abortion is necessary to preserve the health of the mother.

Before the 2003 New Hampshire law even came into effect, Dr. Wayne Goldner, a Manchester obstetrician and gynecologist who provides abortions for pregnant minors, filed suit in federal court challenging its constitutionality. Dr. Goldner claimed, among other things, that the law was unconstitutional because it lacked a provision that would "allow a physician to provide a prompt abortion to a minor whose health would be endangered" by the delays created in providing parental notification. The federal District Court judge agreed, concluding that the law failed to comply with the constitutional requirement that state restrictions on abortions provide a so-called "health exception" and that the law's "life" exception was unacceptable because it required the aborting doctor to determine with impossible precision that an abortion was "necessary" to preserve the mother's life.

On appeal, The First Circuit Court of Appeals followed suit. Citing prior U.S. Supreme Court cases, the First Circuit determined that a law seeking to regulate abortions that lacked a "health of the mother" exception is automatically unconstitutional. And since, the New Hampshire law lacked such an exception, the court reasoned, it must be stricken.

Unhappy with the two lower court decisions, New Hampshire Attorney General Kelly Ayotte and United States Solicitor General Paul Clement, appealed the decision to the United States Supreme Court. They argued that the New Hampshire law should not be invalidated on the basis that it lacks a "health of the mother exception." Such exceptions, they maintained, only apply to a very small percentage of minors seeking abortions, and to strike the entire statute based on such a small number of instances would be unnecessary. Then on May 23, 2005, the nation's High Court agreed to hear the case, giving the justices the opportunity to clarify their earlier decisions regarding whether an abortion law that lacks a "health of the mother" exception is per se unconstitutional.

In a surprising unanimous decision, written by retiring Justice Sandra Day O'Connor, the Court seemed to fashion a new rule addressing this prior confusing area of abortion law. Being clear that they were not questioning or challenging any of their prior decisions, Justice O'Connor wrote, "We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortions would be unconstitutional in medical emergencies, what is the appropriate judicial response?" In answering that question, she continued, "We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."

In essence, the Court fully recognized that in so far as the New Hampshire law forbids doctors from performing abortions on minors in a medical emergency, it is unconstitutional. Perhaps more important, however, the Court recognized and accepted two other critical observations. First, that states are free to require parental involvement when a minor considers terminating her pregnancy. This right, the Court stated, comes from parents' "strong and legitimate interest in the welfare of their young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely." And second, the number of cases where a minor must acquire an abortion to preserve her own health constitutes a very small number of total abortions performed on minors. Justice O'Connor stated, "In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health."

Based on these three observations and the Court's reluctance to "nullify more of a legislature's work than is necessary," the Court declined to follow the two lower court decisions that declared the entire statute unconstitutional--calling them "too blunt." Instead, the Court reasoned that a better response would be for lower courts to declare the statute invalid only "as applied" to those few cases where a minor would need an abortion to preserve her own health--in effect validating the statute as to the large majority of cases where the minor's health is not in danger. But determining that "There is some dispute as to whether New Hampshire's legislature intended the statute to be susceptible to such a remedy," the unanimous Court stopped short of holding the New Hampshire law valid. The Court decided instead to send the case back down to the District Court to make a determination on the New Hampshire legislature's intent. In other words, the lower court must now decide whether the New Hampshire legislature, when passing the law, would have preferred the entire statute invalidated or only as to the few instances where a minor's health is in jeopardy.

In conclusion, although the Court clearly tipped its hand as to the direction it likely will go in fashioning remedies for flaws in state and federal abortion statutes, especially with respect to the concerns for women seeking abortions to preserve their own health, neither side totally won the day with the Court. While the Court clearly rejected the notion that an entire statute is invalid merely because it lacks an exception protecting the health of the mother, it affirmed its prior established rule that women have a fundamental right to an abortion when it is necessary to preserve her health. In addition to foreshadowing the Court's willingness to permit states to provide reasonable restrictions on minors--and potentially adults--to access abortions, perhaps the most stunning aspect of this decision was the justices' common agreement. Throughout the Court's relatively long relationship with the abortion issue, the Court has been remarkably divided among sharp ideological lines. In fact, many of the Court's most notable abortion decisions were decided by a thin majority. So perhaps this case signifies not only the Court's ability to mark a reasonable path along the rough and rocky terrain it has created in the area of abortion law, but its ability to also find common threads that unite the Court, giving it the opportunity to provide clear, reliable, and stable precedents for lawmakers and interested citizens in the future.

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