High Court to Weigh Parental Notification for Abortion

In Depth

look at how the Supreme Court's rulings on abortion have evolved since the 1973 'Roe v. Wade' decision.

The Supreme Court hears arguments Wednesday on a New Hampshire law requiring minors to notify their parents before getting an abortion. A federal appeals court ruled against the law, saying it should carry an exemption for a minor whose health is at stake.

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If you're looking for clues to the Supreme Court's future direction on abortion, you may get them starting today. A changing high court hears arguments in an abortion case. It's a test of a New Hampshire law requiring parental notification for minors who get the procedure. This law does not provide an exception in cases where the minor's health is in jeopardy, and opponents want the court to declare this law unconstitutional. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

Until two years ago, New Hampshire had no regulations whatsoever on abortion. In 2003, the state senate passed by just one vote a law requiring that the parents of a minor be notified in person 48 hours before a doctor can perform an abortion. The only exception is if an abortion is needed to prevent the imminent death of a minor. As soon as the law was enacted, abortion providers in New Hampshire challenged it in court, and a federal appeals court ruled the law unconstitutional because it did not provide an exception for cases of medical emergency when the health of the minor is in jeopardy. New Hampshire appealed to the US Supreme Court which will hear arguments in the case today.

The first and threshold question to be resolved by the court is: Who has standing to challenge an abortion law and when? For years, pro-choice forces have successfully challenged restrictions before they went into effect on grounds that the laws it issue imposed an undue burden on a woman's right to have an abortion. And usually it is abortion providers who bring these challenges on behalf of their patients; the idea being that pregnant patients have such a tiny time window. And if doctors wait until after the law goes into effect, they will face possible prosecution for violations of the law. In this case, though, New Hampshire argues that the courts should not make decisions about a law when nobody has actually been affected or harmed yet.

Ms. KELLY AYOTTE (Attorney General, New Hampshire): We don't have an actual patient here.

TOTENBERG: Attorney General Kelly Ayotte contends that under established Supreme Court precedents, those seeking to invalidate a lot outright must show that it would limit abortion rights not just in some cases but in all cases.

Ms. AYOTTE: Plaintiffs have to establish that there are no set of circumstances under which this law can be applied constitutionally.

TOTENBERG: James Bopp, Council for the National Right to Life Committee, seconds that, contending that the New Hampshire parental notification law benefits the vast majority of girls while those challenging the law offer only speculative harm.

Mr. JAMES BOPP (Council for the National Right to Life Committee): We're sacrificing all those other girls because of this very speculative, very unusual set of circumstances.

TOTENBERG: But Jennifer Dalven of the ACLU Reproductive Freedom Project counters that for more than a decade the Supreme Court has consistently allowed doctors to challenge laws on behalf of their patients because the time window for abortions is so small, and in medical emergencies, there's often no window at all.

Ms. JENNIFER DALVEN (ACLU Reproductive Freedom Project): What the state is saying here, in essence, is that doctors can't go to court to challenge laws before they harm their patients. Rather, individual women have to go to court, one by one, to seek exceptions from laws that will hurt them. And that is a radical shift from how the court has treated abortion cases in the past.

TOTENBERG: Thus, Dalven says, that the Supreme Court's ruling on the threshold question of when a law can be challenged could affect not just parental notification laws but laws imposing restrictions on abortion for women of all ages. If the Supreme Court rules that an advance challenge to the law is permissible, though, it will then move on to the second question in the case, whether a law requiring parental notification must include an exception not only to prevent a pregnant woman's imminent death but to protect her health. New Hampshire State Legislator Fran Wendelboe was one of the sponsors of the parental notification law. She says including a health exception in the law would have meant including a giant loophole.

State Representative FRAN WENDELBOE (New Hampshire): Practically any reason could be determined to not be in the best health interest and not really truly be a serious physical health issue.

TOTENBERG: But doctors say that's nonsense, that there are several conditions, that while relatively uncommon, do occur in significant numbers and pose a real threat to the health of the mother--acute hypertension that could cause a stroke, liver damage, vision loss and long-term damage to the kidneys, intro uterine infections that cause infertility and tubal pregnancies that untreated can cause lasting damage or even eventually be a threat to the mother's life. Leslie DeMars is an obstetrician/gynecologist at Dartmouth-Hitchcock Medical Center in New Hampshire.

Dr. LESLIE DeMARS (Obstetrician/Gynecologist, Dartmouth-Hitchcock Medical Center): These truly are going to be emergent circumstances and we don't want to have to temporize or provide substandard care at a time when urgent or emergent appropriate care may make the difference between a woman's better outcome and a life where she has a lifelong complication or organ damage.

TOTENBERG: That viewpoint is reiterated in a brief filed by the American Medical Association and the Association of Obstetricians and Gynecologists. The brief notes that while abortion may be indicated in only a small percentage of cases, conditions that could result in profound health consequences do occur in a significant number of cases. And with some conditions such as hypertension, the danger of a medical crisis occurs most often in first pregnancies and 40 percent more often in teen-agers. Dr. DeMars says that in a hypertensive crisis, for example, the doctor may be able to treat a patient with drugs for 24 hours or less.

Dr. DeMARS: But there's no warning signs as to when this woman could actually have a stroke, when she could rupture her liver and have intraabdominal hemorrhage and this standard of care is not to temporize.

TOTENBERG: In short, the medical standard of care is not to wait, but New Hampshire contends that if there is such a medical emergency, doctors can go to court to get authorization for an abortion without parental notification. Not so say the doctors. Even if New Hampshire had a system for contacting judges 24 hours a day, which it does not, doctors often don't have time for that to which James Bopp of National Right to Life responds...

Mr. BOPP: Well, then get on the phone and call the parents because if there's any time in the world that the parents should know about what's happening to their child is when their child is bleeding, potentially compromising her health and life.

Ms. NANCY MOSHER (Director, Planned Parenthood of New England): Sometimes parents aren't reachable in an emergency situation.

TOTENBERG: Nancy Mosher is director Planned Parenthood of New England.

Ms. MOSHER: It just makes absolutely no practical sense to send someone with a health emergency to a judge.

TOTENBERG: Dr. DeMars notes that there are situations, in fact, where a teen is simply too sick to either provide consent or help even locate a parent. And waiting, says DeMars, to notify a parent in such an emergency is considered substandard care.

Dr. DeMARS: And in no other circumstance would we not be allowed to perform emergency medical care in the best interests of that teen.

State Rep. WENDELBOE: It's only common sense that any parent, given those set of circumstances, would want to know that their child has a serious health issue.

TOTENBERG: New Hampshire Legislator Fran Wendelboe.

State Rep. WENDELBOE: It just boggles the mind. In New Hampshire, you have to have parental permission to have your ears pierced, permission. You have to physically have a parent go with you to the tanning booth. This is about parental rights. Parents are the ones that are best capable of making health decisions for their children.

TOTENBERG: One thing Wendelboe agrees with pro-choice advocates about is the significance of today's case. If the Supreme Court makes it more difficult to challenge abortion restrictions, as the state of New Hampshire urges, the decision would likely have widespread consequences. Almost every restriction imaginable would go into effect before it could be challenged. And just which justices will decide this important case? In the past, Justices O'Connor and Kennedy have been decisive votes on abortion questions before a closely divided court. But O'Connor may well have stepped down by the time the decision in this case is announced which would mean that Kennedy's vote could prove pivotal or it could be that the court will order this case re-argued when and if Samuel Alito is confirmed and replaces O'Connor.

Nina Totenberg, NPR News, Washington.

INSKEEP: You can read about the way the Supreme Court's view of abortion has evolved over the years by going to npr.org.

It's MORNING EDITION from NPR News.

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