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High Court Hears New Hampshire Abortion Case

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High Court Hears New Hampshire Abortion Case

Law

High Court Hears New Hampshire Abortion Case

High Court Hears New Hampshire Abortion Case

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The first major abortion rights case since John Roberts was confirmed as chief justice is now before the U.S. Supreme Court. The case involves a New Hampshire law that requires minors to tell a parent before terminating a pregnancy. Dahlia Lithwick, legal analyst for Slate, discusses the issues at stake with Alex Chadwick.

ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

Coming up, the plight of lefties, and it has nothing to do with politics. First, this.

(Soundbite of court case)

Chief Justice JOHN ROBERTS (US Supreme Court): We'll hear argument next in Ayotte vs. Planned Parenthood of Northern New England.

CHADWICK: That is the new chief justice of the United States, John Roberts, opening today's arguments in the US Supreme Court. The fact that the court released audio of these oral arguments means this is an important case. It's the first major abortion case the court has taken up in years. It asks whether minors must notify their parents before obtaining an abortion. Dahlia Lithwick is legal analyst for the online magazine Slate and for DAY TO DAY. She was at the arguments earlier today. She's with us now.

Dahlia, there are actually two issues here.

DAHLIA LITHWICK reporting:

That's right, Alex. One of them is abortion-specific, and one of them sort of has to do with the standard by which abortion cases can be evaluated. The abortion question is essentially--New Hampshire has a law that requires doctors to notify the parents of minors before giving an abortion. It has an exception if the minor's life is in danger, but it does not have an exception when the minor's health is in danger. The question is: Is it constitutional not to have an exception for the health of a minor? The more technique question, but in some sense the more compelling one, today is whether an abortion statute, which is unconstitutional in some applications, under some sets of facts, can be struck down altogether. Traditionally that's what the courts have done. There is some question today as to whether the courts will continue to do that.

CHADWICK: OK. On the sides, there's the state of New Hampshire, joined by the Bush administration, and on the other side Planned Parenthood. What did they argue?

LITHWICK: Well, New Hampshire argued, one, there's no need for a health exception because if the doctor gets into a situation where there's an imminent health crisis, he can pick up the phone and get a waiver from a judge. Also, they said, this is a narrow, narrow, narrow minority of cases in which you even get to the health exception question. So why would you strike down the entire statute as unconstitutional?

On the other side, Planned Parenthood said, `You do not want to be in a situation where doctors are calling judges to get permission to give emergency abortions when the health of the minor is threatened.' They also said that the standard whereby you strike down an entire statute is unconstitutional in some applications. It's the court own rule, and they cited to--Supreme Court precedent in prior abortion cases, such as Casey, where the court said, `Hey, if it's unconstitutional in some cases, we're going to strike the whole thing down.'

CHADWICK: At one point in the arguments, Dahlia, Justice Stephen Breyer posed a hypothetical scenario that kind of summed up why this case is important. Here he is.

(Soundbite of court case)

Justice STEPHEN BREYER (US Supreme Court): Let's imagine a real circumstance. A 15-year-old walks in--2 in the morning on Saturday into the emergency room, and the doctor looks at her. She's pregnant. She has this very high blood pressure, whatever. And the doctor thinks to himself--he thinks, `Well, I--immediate abortion. No question, immediately deliver the child. If I don't, I don't think she's going to die, but she'll never have children.'

CHADWICK: So, Dahlia, how did the two sides respond to this hypothetical?

LITHWICK: Well, the New Hampshire side said, `That doesn't make the law unconstitutional. It's a narrow class of cases, and the doctor can pick up the phone and get a judge's permission to go ahead and perform the procedure.' The Planned Parenthood side, again, said, `You don't want to interpose a judge between a doctor and his best medical judgment about what he needs to do immediately. These are life-and-death situations, or perhaps not life and death but imminent health situations in which every minute counts.'

CHADWICK: So this is the first abortion case heard by the court since John Roberts became chief justice. And he got very involved in this question of whether the whole law can be struck down if it's unconstitutional for just a few. Here he is. He's interacting with a lawyer for Planned Parenthood.

(Soundbite of court case)

Unidentified Woman: I think there is a significant concern about whether that's what New Hampshire...

Chief Justice ROBERTS: Well, but that would be litigated in a pre-enforcement, as-applied challenge. I mean, you don't assume--the fact...

CHADWICK: So, Dahlia, I'm not quite sure what the chief justice is talking about.

LITHWICK: Well, neither are some of us, Alex. But he seems to be saying--back to this point of you don't junk the entire statute because in a handful of cases it's unconstitutional. What he was urging--and he made this point several times, Alex--is that doctors who feel that they're about to be put in this unconstitutional situation should come before the court and make an as-applied, narrow as opposed to broad challenge and get that part of the law invalidated. But he doesn't want to see the entire statute junked just because a couple of doctors have these questions about its constitutionality. So he was urging for a very, very narrow challenge to the law, not the broad one that was mounted and that was successful in the lower courts.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the court for the online magazine Slate and for DAY TO DAY. Thank you, Dahlia.

LITHWICK: My pleasure, Alex.

CHADWICK: More coming up on DAY TO DAY from NPR News.

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