High Court Hears Arguments on Abortion Notification Law
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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
ROBERT SIEGEL, host:
And I'm Robert Siegel.
The Supreme Court has re-entered the abortion debate for the first time in five years. With new Chief Justice John Roberts on the bench, the court heard a challenge to a New Hampshire law. That law requires parents to be notified 48 hours before their minor daughter receives an abortion. In a rare event, the court has allowed same-day broadcast of the audio of today's arguments. NPR's Nina Totenberg has our coverage.
NINA TOTENBERG reporting:
While the New Hampshire law does allow abortions without parental notification to prevent imminent death, it does not have a similar exception for medical emergencies where death is not imminent. The American Medical Association in a brief filed with the court says that while such situations are not common, there are a significant number of cases in which an abortion is the standard of care needed to prevent strokes, organ damage and infertility. And because the New Hampshire parental notification law does not have an exception for such cases, a federal appeals court struck down the statute as unconstitutional. The state then appealed to the Supreme Court, contending that as a threshold matter no court should invalidate a state abortion law before it's gone into effect. Were the Supreme Court to accept that argument, it would transform much of the established practice with respect to abortion laws, making it much more difficult to challenge abortion restrictions on women of all ages.
In the Supreme Court today, though, a majority of the justices did not seem to buy the notion that abortion laws cannot be challenged in advance of their enforcement. At the same time, though, the justices didn't seem anxious to invalidate a parental notification law such as this one as it applies to most minors. The court's problem was how to keep the law intact and yet provide for medical emergencies. New Hampshire Attorney General Kelly Ayotte insisted that a doctor who couldn't reach a parent or a judge could go ahead. But Justice David Souter, who served on the New Hampshire courts for 12 years, was doubtful.
Justice DAVID SOUTER (US Supreme Court): You go through the kind of a worst-case analysis and you say, `Well, you know, assuming that all of the safeguards somehow do not work, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability.' Doesn't that mean because there is a required health exception?
Ms. KELLY AYOTTE (New Hampshire Attorney General): There is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.
Justice STEPHEN BREYER (US Supreme Court): Well, so let's imagine a real circumstance.
TOTENBERG: Justice Stephen Breyer.
Justice BREYER: A 15-year-old walks in at 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.'
TOTENBERG: So then the doctor tries to reach a judge, but it's 2 AM and he gets an answering machine and the minor refuses to allow her parents to be called. Ayotte told the court that in such circumstances the doctor could go ahead with an immediate abortion because there's another state law that allows doctors to raise as a defense if they're prosecuted the fact that they weighed competing harms. Justice Breyer wasn't satisfied.
Justice BREYER: But how do we know that that's actually the law? I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm. They would say that the competing right to the life of the fetus is more important than the possibility of the chil--of the mother having children in the future herself.
Ms. AYOTTE: The minor can always go forward and have an abortion under these circumstances. So people aren't weighing the right of the fetus.
TOTENBERG: Justice Stevens: `But the state Legislature considered this very defense and rejected it.' Answer: `The Legislature rejected a generalized health exception.' Chief Justice Roberts then turned to the question of what kind of challenge to the law should be allowed and when. In short, can the courts act before the law goes into effect?
Chief Justice JOHN ROBERTS (US Supreme Court): Am I right in reading your briefs that you don't object to a pre-enforcement challenge to the bypass procedure itself brought by physicians, for example?
Ms. AYOTTE: Mr. Chief Justice, no, we do not object in that sense. We think that is a very good mechanism to bring forth a case.
TOTENBERG: But Justice Ginsburg said there is no such animal as an as-applied challenge to a statute before it goes into effect.
Justice RUTH BADER GINSBURG (US Supreme Court): But I don't see how it's as applied if the physician just says, as you put it, `I don't have to wait until faced with an actual medical emergency to bring this suit.'
Ms. AYOTTE: The physician would bring the claim and would say `As applied to me, I perform abortions.'
TOTENBERG: Justice Stevens: `Why isn't that this case?' Justice Ginsburg: `Exactly.'
Supporting New Hampshire in court today was the Bush administration and its solicitor general Paul Clement.
Mr. PAUL CLEMENT (Solicitor General): 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 1,000 applications of the statute...
Unidentified Man: Could...
Mr. CLEMENT: ...noting that 999 of them are constitutional?
TOTENBERG: Not so, said lawyer Jennifer Dalven of the ACLU Reproductive Freedom Project. She represents doctors who successfully challenged the law in the lower courts, and she told the Supreme Court that the lack of a health exception to the parental notification requirement puts teen-agers at grave risk. Justice Kennedy wasn't buying that argument, noting that the New Hampshire law allows judges to OK abortions without parental notification. Why, he asked, isn't there time to just call a judge in medical emergencies?
Ms. JENNIFER DALVEN (ACLU Reproductive Freedom Project): The undisputed evidence here is that for women in some emergencies every minute is critical, every minute puts them at risk of losing their future fertility and of major organ damage.
Justice ANTONIN SCALIA (US Supreme Court): And there can be nurses or attendants that can get the judge on the line.
TOTENBERG: Justice Scalia chimed in.
Justice SCALIA: It takes 30 seconds to place a phone call.
Ms. DALVEN: Yes, Your Honor.
Justice SCALIA: This is really an emergency situation?
Ms. DALVEN: Yes...
Justice SCALIA: I mean, I guess if that's the case the doctor better not put on his gloves.
Ms. DALVEN: If all you had to do was literally call a number and the judge would say OK--if the judge had no time--the nurse had no time to relay the facts, the judge had no time to ask any questions, the judge had no time to consider the evidence or look at the law, there's a real question about what potential purpose there could be of requiring even that small delay before a minor gets the immediate treatment she needs.
Justice SCALIA: But, Counselor, the purpose is to save a statute which has thousands of applications that are valid.
Ms. DALVEN: I don't think saving a statute is worth putting a teen's health at risk.
TOTENBERG: Most of the justices seemed to agree, but the court seemed to be reaching for a way to deal with medical emergencies without invalidating the whole law. Justice Ginsburg.
Justice GINSBURG: So why wouldn't it be entirely adequate to protect what you're concerned about to say this New Hampshire statute is unconstitutional to the extent that it fails to provide an exception for situations where there's an imminent danger to health and then all those imminent danger to health situations would be left unregulated--the statute doesn't reach them--but non-emergency cases would continue to be governed by the statute?
TOTENBERG: Indeed, it seemed there was a clear court majority for something approximating that view. The question remains how to get there within the legal rules of the game. Nina Totenberg, NPR News, Washington.
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