High Court Weighs Notification For Teen Abortions The U.S. Supreme Court hears arguments about New Hampshire's parental notification law. Supporters maintain parents have a right to know when girls seek abortions. Opponents fear the law chips away at Roe v. Wade. Guests provide analysis of the day's arguments, along with audiotape excerpts.
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High Court Weighs Notification For Teen Abortions

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High Court Weighs Notification For Teen Abortions


High Court Weighs Notification For Teen Abortions

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This is TALK OF THE NATION. I'm Neal Conan in Washington.

Earlier today, the Supreme Court heard its first abortion case in five years. Big news by itself; even more so with new Chief Justice John Roberts presiding. The case involves a so-called parental notification law. Like most states, New Hampshire requires doctors to notify at least one of the parents before performing an abortion on girls younger than 18. Like most states, New Hampshire provides an exception in the case of a life-threatening emergency. But New Hampshire is one of just a few states whose laws does not provide exceptions in less-dire circumstances when the health of the mother might be threatened.

Supporters of the law argue that the health exemption is a giant loophole that can be used to undermine a parent's right to be in charge of medical treatment of their children. Opponents say it is not always possible to locate parents in time to deal with some medical emergencies. In the broader sense, of course, this is to some degree a proxy fight over the larger issue of abortion and the law.

There is another issue in today's case, as well. As in many other abortion cases, lower federal courts barred enforcement of New Hampshire's law before it took effect. Is it constitutional for the courts to act before anyone is actually affected?

Later this hour, we'll hear directly from both sides. We also want to hear from you. If you have questions about the legal arguments around parental notification, or what this case tells us about the Roberts court, give us a call. Our number here in Washington is (800) 989-8255; that's (800) 989-TALK. The e-mail address is totn@npr.org.

We're going to listen to excerpts from today's Supreme Court hearing, as well. This is just the third time that the court has provided same-day access to audiotape of the proceedings. The first was Bush v. Gore in 2000; the second was the 2003 affirmation action cases involving the University of Michigan. Joining us is David Savage, Supreme Court reporter for the Los Angeles Times, who's with us here in Studio 3.

Nice to have you back on the program, David.

Mr. DAVID SAVAGE (Los Angeles Times): Oh, good to be with you, Neal.

CONAN: And before we got to the specifics of this case, I guess I have to ask you--this is the first big case where Judge Roberts is presiding as the chief justice of the United States. How is it different from Justice Rehnquist? How is it different from--did he--was he reticent? Did he fit right in as a chief justice?

Mr. SAVAGE: He certainly fit right in. He's not a shy guy and he sort of knows what he thinks and he sort of took charge at part of this argument. He--I thought going into this argument that this would be one of these classic, maybe 4-4 splits with Justice O'Connor being the deciding vote. But halfway through the argument, Roberts suggested a way to resolve this case on a narrow grounds that sort of would solve the problem at issue and it's something that both sides could agree to.

Here's what happened, Neal. You know, New Hampshire passed this law, as you said, and there was no exception in the law for health emergencies. The ACLU and some doctors said, `Wait a minute. What about a situation where we have a young girl who has a medical emergency--maybe she's not dying but she's bleeding or something like that--and the doctor needs to perform an immediate abortion. He shouldn't have to go to a courthouse and have to get some sort of order from a judge.' On that basis, the lower court struck down the law and said the whole law is unconstitutional. Roberts said, `Why not a pre-enforcement'--he called it a pre-enforcement injunction. `Why not the doctors go to court and get an order that says, "This law doesn't apply in cases of medical emergencies?"' He proposed that to both--the lawyers on both sides and basically by the end of the argument, all the justices, including Ruth Ginsburg, were saying, `Well, what's wrong with that? Doesn't that basically solve the problem?'

CONAN: Mm-hmm.

Mr. SAVAGE: So I think Roberts didn't come up with this on his own--it was in some of the briefs--but he raised this with both sides and said, `There's a simple, direct way to solve this case,' sort of a compromise solution. That is, the law can go into effect for most young girls, because they don't have medical emergencies...

CONAN: Right.

Mr. SAVAGE: ...but for doctors who do face a medical emergency, they can act quickly. And so I have a feeling that that's--the court's going to write some decision that it looked like most of them could agree with.

CONAN: Unusual to find consensus...

Mr. SAVAGE: Yes.

CONAN: ...on a lot of issues and certainly almost on any issue involving abortion.

Mr. SAVAGE: Yes. That's sort of the last thing that you expect to happen is an abortion case where they generally agree. Because court's very closely split on this, they've been around on this issue before. They're sort of dug in. Everybody knows their views; some of them think like Justice Scalia that Roe should be overturned, some of them are strong supporters. So you always expect these to be a real--you know, a real fight, but this didn't have that sound to it.

CONAN: Mm-hmm. Let me just clarify that for a moment. This would be a general provision. In other words, they wouldn't have to act on each individual case to go find a judge. This would be a general provision that the courts would enforce there in New Hampshire and the effect would be to make New Hampshire's law very much like the law in most of the other states.

Mr. SAVAGE: Yes, that's right. It would be sort of an injunction that would apply to all future cases and it would sort of cure the problem that this law had. I mean, the Bush administration argued, and I think Roberts seemed to agree, the right solution is not to strike down the law for a thousand young girls who need abortions. Because one of them or two of them is going to face a medical emergency, why not have a court order that makes an exception for just that situation?

CONAN: Mm-hmm. Now the arguments around this case--as you say, they might have been resolved by this neat solution proposed by Chief Justice Roberts--but this seemed to be a classic case of people arguing almost a proxy fight over abortion, an attempt portrayed by opponents of this law that they're basically trying to eat away, make it more and more difficult in incremental bites, to make it more and more difficult for women to get abortions.

Mr. SAVAGE: Yes. And that's sort of the background of this case and the abortion rights opponents are justified in thinking that. I mean, after all, the Bush administration and some members of the court think Roe vs. Wade was wrongly decided and should be overturned and they--the Bush administration is supporting more regulations of abortion. And so it's understandable for the abortion rights advocates to say, you know, `Let's watch what's going on here. This could be the beginning of unraveling Roe vs. Wade, the beginning of overturning it entirely or the beginning of allowing major restrictions.' But it was not evident in this argument.

CONAN: Mm-hmm. And on the other side, that--you know, this is a law about parental rights. I mean, clearly parents--you continue to hear the argument, you know, most schools require parental notification to give the kid an aspirin.

Mr. SAVAGE: Yes, that's right. And there's also this sort of democratic argument that's made. If a state legislature passes a law like this and it has strong support in the state legislature and the Supreme Court has basically said, `This principle is constitutional,' why strike down the entire law and say you can't enforce this law at all just because of the occasional, very real problem that is the medical emergency problem?

CONAN: Mm-hmm. Well, to get at the heart of New Hampshire's attorney general's argument, Stephen--Justice Stephen Breyer put forth a hypothetical scenario. In this audio clip from today's arguments, we'll hear the voices of Justice Breyer, Attorney General Kelly Ayotte of New Hampshire and Justice Sandra Day O'Connor.

(Soundbite of Supreme Court audio clip)

Justice STEPHEN BREYER: So let's imagine a real circumstance. 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, 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.' And he's thinking that. What's supposed to happen? He calls up Pam Peglagoglio(ph) or Pam Livingston(ph) and there's no answer, there's--it's 2 in the morning and there's--you know, one of those things, `Leave a message.' OK? `Should I call your parents?' `No, they don't know I'm pregnant.' Now what's supposed to happen?

Ms. KELLY AYOTTE (Attorney General, New Hampshire): Justice Breyer, the physician in those instances could perform the immediate abortion and...

Justice BREYER: It doesn't say that in this statute; it suggests the contrary. So what is the particular provision of New Hampshire law that tells that--I mean, the doctor--all these things are, you know, questions of probability, and he doesn't want to risk being prosecuted and he doesn't want to risk losing his license. And so what particular provision is--he happens to have his lawyer with him.

(Soundbite of laughter)

Justice BREYER: Well, you know, what is--a little hearsay. OK? What's the provision that saves him? There's no health exemption in this statute.

Ms. AYOTTE: Your Honor, his lawyer would advise him in those circumstances that the competing harms defense would protect his actions because he needs to act urgently necessary--in an urgently necessary...

Justice SANDRA DAY O'CONNOR: Would it protect him from a civil damages action as well as prosecution...

Ms. AYOTTE: Justice O'Connor...

Justice O'CONNOR: ...in a criminal case?

Ms. AYOTTE: By the plain language of the competing harms defense, it also precludes civil liability. I would also say that that lawyer would also advise him, `If given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.'

Justice BREYER: How do we know? I mean, what you're saying is fine, 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 life of the fetus is more important than the possibility of the mother having children in the future herself. See, there are people in good faith on both sides of this argument. And so how do we know that the New Hampshire statute is going to do--not the statute but your competing harms defense is going to do for this particular woman what a health exception would do?

Ms. AYOTTE: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it as opposed to the harm that the act is trying to get at, which is notification of parents. It's not whether or not the minor can have an abortion. The minor can always go forward and have an abortion under these circumstances. So people aren't weighing the right of the fetus in this instance to the right of the mother's health. So the weighing is quite easy.

CONAN: New Hampshire Attorney General Kelly Ayotte in a colloquy with Justices Stephen Breyer and Sandra Day O'Connor in today's arguments before the Supreme Court.

And we have to go to a break in just a moment, David, but it sounded like she was having some difficulty with some of those questions.

Mr. SAVAGE: She was.

CONAN: All right. We're going to be right back after a break. If you'd like to join the conversation, give us a call. Our number is (800) 989-8255; (800) 989-TALK. Our e-mail address is totn@npr.org.

We'll be talking about another aspect of this law in which case--in the case of--well, there's no plaintiffs since no one was actually harmed because the law never took effect because the court barred it from taking effect before anybody could be harmed; arguments about whether that was legal or not. And we'll also be speaking with some of the principals in today's case, Kelly Ayotte, the attorney general of New Hampshire, and Louise Melling, who's director of the ACLU Reproduction Freedom Project. Again, if you'd like to join us: (800) 989-8255.

I'm Neal Conan. You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

We're talking about and listening to some of the arguments before the United States Supreme Court earlier today involving a parental notification law in the state of New Hampshire and the broader issues around abortion. Our guest is David Savage, Supreme Court reporter for the Los Angeles Times. If you'd like to join us: (800) 989-8255. Or you can send us e-mail: totn@npr.org.

Let's take a call. Jim is on the line with us calling from New Haven, Connecticut.

JIM (Caller): Yes. I was very interested to listen to the commentary. I didn't hear all of it, but it sounded to me as if you were saying that this case, which is supposed to be giving us an idea of how Chief Justice Roberts will be ruling in the future, is indicating that he is very much in favor of judges legislating from the bench. It sounds as if he's very interested in allowing the New Hampshire law to stand with modifications as supplied by the Supreme Court.

CONAN: David Savage, is that a fair assessment?

Mr. SAVAGE: It's a fair criticism because that is what Chief Justice Roberts and some of the justices were proposing, is that judges could carve out an exception to this law and the ACLU attorney said basically this is the legislature's job; they should have done this. But I think the justices of the Supreme Court are going to do it themselves and it is subject to the criticism that they're rewriting--they're legislating from the bench.

JIM: Which is presumably--precisely what he is supposed to be so against, he and Scalia and the other appointees of that persuasion.

Mr. SAVAGE: Well, let me put in a good word for his side. I suppose the argument would be, they're sort of saving the law by cutting out this minor exception, that in a big picture, they're sort of saving the law and allowing it to go into effect by carving out this one exception. So they could argue, `We're actually, you know, saving most of what the legislature did rather than having it be struck down entirely.'

CONAN: Mm-hmm. Jim, thanks very much for the call.

JIM: Thank you.

CONAN: And let's talk quickly with Lisa, Lisa calling us from Rapid City, South Dakota.

LISA (Caller): Hi.


LISA: This is a very interesting argument for me. I'm a parent and a woman, obviously, and I'm involved with this issue. I'm very much about the right to privacy and I'm pro-choice, and yet it's a complicated issue. And I kind of resent the fact that these national pundits are saying you can't mince the small details; you have to be either 100 percent for it or 100 percent against it. I think it's a very complicated issue.

As a parent, I don't believe that a minor has a right to privacy. I think that that's part of my job as a parent to be involved in especially those life-altering decisions. So that's really my point, is about how I feel like we're being pressured as a citizen, as a voter to either be pro-choice or anti-abortion, pro-life...

CONAN: Mm-hmm.

LISA: ...and that we can't debate these smaller issues or they feel it will chip away at our position. And that's the thing I have a problem with.

CONAN: David, I don't think Lisa is alone.

Mr. SAVAGE: No. There are many people with--if you look closely at the polls, people have very complicated opinions on abortion. And I've seen some of the recent Gallup polls. If you ask how many people say abortion should be legal in all circumstances or illegal in all circumstances, both of them are fairly small minorities; it's like 21 and 22 percent. That is, the majority of the people have something that's closer to an in-between position, that they think abortion should be generally legal but not in all circumstances or some sort of middle position. It's a very hard issue, I think, for everyone.

CONAN: Lisa, thanks very much for the call.

LISA: Thank you very much.

CONAN: Joining us now is Kelly Ayotte, attorney general of New Hampshire. She presented oral arguments before the Supreme Court earlier today. In fact, we heard some excerpts earlier. She joins us by phone from here in Washington, DC.

It's very good of you to be with us today.

Ms. AYOTTE: Good afternoon. Thanks for having me.

CONAN: Obviously, this law was earlier rejected by lower federal courts. Why did you decide to press on with the case?

Ms. AYOTTE: Well, I decided to file a petition with the Supreme Court, first of all, because this was a facial challenge to our statute. So the entire statute was struck down based upon one potential application, which they raised which could be problematic. And we thought that as a sort of matter of way of looking at the case that that really wasn't proper in the first instant. So that was one issue that we appealed.

And then we also felt that New Hampshire law could be applied to protect for that one potential rare situation that could arise and we wanted the court to consider that, as well.

CONAN: Mm-hmm. Certain minors--well, let me ask you about some of the talk in the case. We were talking with David Savage of the Los Angeles Times earlier about the proposal put forward by Chief Justice Roberts today of basically making a broad case exception in courts in New Hampshire. Is that something that you find acceptable?

Ms. AYOTTE: Well, actually, one of the things that we proposed in the case which we think is quite acceptable is this, is that we feel that they didn't meet their standard of review to strike our entire law down.

CONAN: Mm-hmm.

Ms. AYOTTE: And what should have been--they should have been relegated to bringing a pre-enforcement as applied challenge, which would have been focused just on the real issue of `Does it work in an emergency situation?' And if a court found that it didn't work in that situation, then a court would do what it does when any plaintiff comes in court and says, `Hey, this law doesn't work for me,' and issue an order saying, `OK, state, you can't enforce it in that one context.'

I wanted to clarify. That's not re-writing a law; that's what courts do every day. And that's what courts did, for example, the Supreme Court, in a case called Tennessee vs. Garner, considered a statute where the state could use any kind of force to effectuate a fleeing felon in an arrest. Well, the Supreme Court, what they did was, they said, `No, you can't apply your statute if it's an unarmed, non-dangerous person.' That wasn't re-writing the law; that was just saying, `You can't enforce it in this context.'

CONAN: Mm-hmm.

Ms. AYOTTE: And that's what we've asked for here.

CONAN: This judicial bypass?

Ms. AYOTTE: With respect to the judicial bypass.

CONAN: Yeah.

Ms. AYOTTE: Well, it's been our position that the judicial bypass--we haven't had a chance to ever have New Hampshire put the bypass in place. We think it will work in an emergency situation, but if for some reason it doesn't, you know, we also argued that another provision of New Hampshire law will protect the physician.

CONAN: Mm-hmm. One of the legal implications of this case today was rather technical. Because the law hasn't gone into effect, the Supreme Court doesn't actually have a specific plaintiff. You'll hear some of the nuances. We're going to hear a clip of this exchange with Chief Justice John Roberts and Jennifer Dalven of the ACLU Reproductive Freedom Project. You'll also hear the voice of Sandra Day O'Connor.

(Soundbite of Supreme Court audio clip)

Chief Justice JOHN ROBERTS: Counsel, if your objection goes to the adequacy of the bypass procedure, what is wrong with a pre-enforcement challenge by physicians, presumably with standing, challenging the bypass procedure? Why should you be able to challenge the act as a whole if your objection is so narrowly focused?

Ms. JENNIFER DALVEN (Deputy Director, ACLU Reproductive Freedom Project): Two points, Chief Justice Roberts. First, is that our objection isn't to the bypass process. We believe that there would be, regardless of how good the procedures the New Hampshire Supreme Court set up, it would--there would still be inherent delay between the time a doctor diagnoses a patient and the time they get to court and get the order. So it's not a problem with the judicial bypass.

The second question...

Chief Justice ROBERTS: But it's a problem that arises only in the emergency situations.

Ms. DALVEN: That's right.

Chief Justice ROBERTS: So bring in a pre-enforcement challenge concerning compliance with the act in emergency situations. Why does that even implicate the vast majority of the cases that don't create emergency situations?

Ms. DALVEN: As Justice Ginsburg pointed out, we believe that is this case. This is--there's nothing between the cas--different between this case and the...

Chief Justice ROBERTS: This case doesn't involve an emergency situation. This is a facial challenge. There's no case at issue at all.

Ms. DALVEN: Your Honor, the state conceded a pre-enforcement challenge brought by a doctor before any particular patient was at risk would be proper and that...

Justice O'CONNOR: But what resulted here? It was the invalidation of the entire statute and all of its applications? Is that how it now stands?

Ms. DALVEN: That, I believe, is how...

Justice O'CONNOR: OK. So the question you're being asked is how can that be narrowed in some fashion to focus on the problem? The statute may well have a majority of valid applications. So how can we narrow the application, and what of our doctrines allow a narrower application? So you need to focus on that. Obviously, it's a matter of concern.

Ms. DALVEN: Sure. Sure. I think this court in Casey addressed that consideration. And Casey was essentially this case, a pre-enforcement challenge brought to the adequacy of the medical emergency exception. And this court held that if the law prohibited an immediate abortion for some of the very same conditions we outline here, it would have been unconstitutional.

Chief Justice ROBERTS: It's because the court explained that the--the inadequacies that it identified were present in a large fraction of cases. We don't know if that's true here.

CONAN: Again, a colloquy before the Supreme Court. You heard Chief Justice John Roberts, Jennifer Dalven of the ACLU Reproductive Freedom Project and Sandra Day O'Connor, as well.

Still with us is Kelly Ayotte, the attorney general of New Hampshire. And getting back to this facial challenge aspect of this, explain what that is and how it applied here, do you think.

Ms. AYOTTE: Sure. A facial challenge is a challenge brought before an act ever goes into effect...

CONAN: Mm-hmm.

Ms. AYOTTE: ...and the remedy that the plaintiffs ask for in a facial challenge is render the statute void. Don't let it apply to one person. And because that's such an extraordinarily broad remedy, the courts normally apply a much more stringent standard in reviewing that type of challenge. And so in this context, even in the Casey decision that you heard attorney Dalven reference, the court applied a standard to the spousal notification provision that would have required someone to demonstrate that it presented an obstacle in a large fraction of cases.

CONAN: Mm-hmm.

Ms. AYOTTE: Here, there wasn't even a demonstration that the potential issues that can arise in an emergency setting posed a substantial obstacle in a large fraction of cases. So we're talking about a case on a facial challenge that from our position didn't meet the burden of proof it needed to meet to render our entire statute void.

CONAN: And, David Savage of the Los Angeles Times, this aspect of the case, again, rather technical-sounding, but important implications for other kinds of abortion cases including perhaps the upcoming case involving the procedure opponents call partial-birth abortion.

Mr. SAVAGE: Yes. I think it's going to be hard to figure out how this case is going to play out on that one. But certainly the health issue is the center of the dispute over the partial-birth abortion. That is, is it necessary for the health of some women for doctors to be able to do this particular procedure?

I do think there's a very good argument against the facial challenges. Kelly Ayotte made it and the Bush administration made it. That is there's something that goes too far about striking a law down entirely that could be constitutional in 99 out of 100 cases. And so I think--as I say, I think the court's going to try to find a way to deal with this more narrowly in this case.

CONAN: Mm-hmm. And if they do that, Kelly Ayotte, is that--well, obviously, you have to accept it; it's the Supreme Court. But is this something that you would agree with?

Ms. AYOTTE: Absolutely. I mean, certainly that, from our perspective, would be a good result in the sense that at least we would have an opportunity to apply our statute in New Hampshire in most if not all of its applications.

CONAN: Thanks very much for being with us today. We appreciate your time. It's been an unbelievably busy day for you, and we thank you for taking the time to speak with us.

Ms. AYOTTE: I'm happy to be here. Thank you.

CONAN: Kelly Ayotte, attorney general of New Hampshire, came down to argue the case before the United States Supreme Court and joined us by phone from here in Washington, DC.

You're listening to TALK OF THE NATION from NPR News.

Louise Melling is director of the ACLU Reproductive Freedom Project, a lawyer representing Planned Parenthood of Northern New England, the respondent in today's Supreme Court case on the New Hampshire parental notification law, and she joins us here in Studio 3A.

And it's very good of you to be with us today as well.

Ms. LOUISE MELLING (Director, ACLU Reproductive Freedom Project): Thank you. I'm happy to be here.

CONAN: As you heard, New Hampshire lawmakers said the health exception would render the parental notification useless 'cause it would just be an enormous loophole that people could take advantage of. And your response to that?

Ms. MELLING: Obviously disagree. What's at issue here is whether a doctor--whether there should be an exception so that a doctor can take care of medical emergencies, medical emergencies that not only endanger a teen's life but also endanger a teen's health. If you look at the exceptions that exist in other states, first of all, their language doesn't in any way permit them to be a loophole, and in fact the evidence shows that they aren't functioning as a loophole. Teens are notifying their parents or going to court.

CONAN: And therefore--and again, getting back to this compromise, I guess, that was proposed by Chief Justice Roberts, is that something that's going to solve this, bring the New Hampshire law more or less into line with the laws in most of the other states on parental notification?

Ms. MELLING: There's a couple issues. I think in today's argument what we saw was that the justices clearly accepted and really understood that you needed to have some protections for teens who face a medical emergency. And then the question was what to do about it. And I think really the question then comes down to whether the court decides to write the exception into the statute or whether the court then strikes the law and has the New Hampshire Legislature fashion the exception in the way that the New Hampshire Legislature would choose to do.

CONAN: And would that be--as we just heard the attorney general of New Hampshire say, that's fine with her. Would that be acceptable for your side as well?

Ms. MELLING: Well, I think what you heard Jennifer Dalven say today in court was if the court fashions the emergency exception, says that the law applies in every instance except medical emergencies, that would take care of teens in New Hampshire. But you have a different problem. You have a different question about whether that's really the role of the court. Where the Legislature consciously chose not to add a health exception, should the court do it or should the court send it back and see what the Legislature does? We don't know for sure that the Legislature would pass this law with a health exception, and then we don't know what parameters it would put on its own health exception.

CONAN: Is the goal to get the health exception or is the goal to get the Legislature to enact it?

Ms. MELLING: The goal is certainly to protect teens' health. But the goal also is to make sure that legislatures accept their responsibility to pass laws that are constitutional and take care of situations as opposed to displacing all of that role to the court.

CONAN: Well, if you put that argument to Roe v. Wade, that would put the basic decisions on abortion back in the hands of the state courts, wouldn't it?

Ms. MELLING: No, no, no, no. This is--I'm sorry if I wasn't clear.

CONAN: Oh. Perhaps I'm misunderstanding.

Ms. MELLING: Here what I'm saying is that there is a constitutional violation, there's no question. And you get that constitutional...

CONAN: I see.

Ms. MELLING: ...violation because Roe is the backdrop. And then the question is: Who writes the words that says medical emergencies are covered? Is that taken care of? Does the court say we carve out an exception to this law for medical emergencies or do they say, `Legislature, you rejected this whole idea, your law clearly has a constitutional violation, it's not our task as the court to make this up; you, Legislature, now you figure out whether you want the law with the health exception or not. We leave it back to you to decide whether you want the law you could have consistent with the Constitution'?

CONAN: Now, obviously, there's been no decision reached in this case and it'll probably be months before we find out what it is, but as you saw the court in operation today and listened to excerpts, I wonder, how did the Roberts court--how was it different on this issue of such importance to so many people in this country?

Ms. MELLING: I wouldn't actually really presume to speculate. The court was active, the court was engaged in the issue. I was, you know, pleased that the court seemed willing to hold firm to its idea that you have to have protections for women's health and then I don't know.

CONAN: OK. Well, stay with us. We may get some more listeners involved after the break.

If you'd like to join us, again, it's (800) 989-8255, (800) 989-TALK. The e-mail address is totn@npr.org.

Later in the program, is it a Christmas tree or is it a Holiday Tree? The issue arrives on Capitol Hill and about 90 feet of fir, conifer green.

I'm Neal Conan. We'll be back after the break. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington.

Here are the headlines from some of the other stories we're following here today at NPR News. President Bush laid out what he called a clear and comprehensive strategy to win the war in Iraq. In a speech today at the United States Naval Academy in Annapolis, the president said Iraqi troops are increasingly taking the lead in fighting the insurgency. And the stock of Research In Motion, the company behind the BlackBerry wireless e-mail device, fell 5 percent today. That followed a federal court ruling in a long-running patent dispute involving the technology used by BlackBerry. You can hear details on those stories and of course much more later today on ALL THINGS CONSIDERED from NPR News.

Tomorrow on TALK OF THE NATION, 50 years after the struggle began to end segregation, some of our schools and neighborhoods are as segregated as ever. We'll examine the reason why the race still divides us. That's tomorrow on TALK OF THE NATION from NPR News.

Today we're talking about abortion, parental notification and Supreme Court arguments. Still with us is David Savage, Supreme Court reporter for the Los Angeles Times, and Louise Melling, director of the ACLU Reproductive Freedom Project, a lawyer representing Planned Parenthood of Northern New England who is of course involved in the case today before the Supreme Court.

Let's get a listener on the line. And this is Jackie. Jackie calling us from San Francisco.

JACKIE (Caller): Hi.


JACKIE: I was 19 years old in 1968. I was a victim of date rape and I could not get a therapeutic abortion in California. And I went to Colorado and I wound up with a quack. I was infected, I came back to California, and 10 days later I wound up with a temperature of 106. I was admitted to the emergency room at 3:00 in the morning, and there was no decision made for three days on whether or not I could receive a therapeutic abortion because the doctors were concerned about the viability of the fetus. And when it was finally determined that my health was in danger, I was required to get a parental consent and it was not possible to locate my parents. So I went another day.

I'm just outraged by this situation. I'm living with complications. I'm sterile. I'm 57 years old. The only thing that's unusual about my story is that I'm alive to tell it. And I think that the health of teen-age women is forgotten and I hope that the Supreme Court will stop making jokes about lawyers being present in emergency rooms and remember that this is about the health of young women. And I don't think that there's anything else I have to say.

CONAN: Jackie, I know it's not easy to make--talk about things like that. Thank you so much for calling us to talk about it.

JACKIE: I'm just calling on behalf of all the women who've died. The only thing that's unusual about my situation is that I'm alive to tell about this horror story.

CONAN: Louise Melling, let me bring you into this. Obviously--thank you very much, Jackie. The--obviously things have changed a great deal since 1968, but that's a situation--that's the situation we're really talking about here, isn't it?

Ms. MELLING: We are talking about situations where a teen's health would be seriously compromised if the physician had to wait the 48 hours mandated by the law or less. And what the doctor is supposed to be able to do, what the doctor is allowed to do when faced with those situations--under New Hampshire law, the doctor cannot go forward under the law we challenged.

CONAN: We know you have to leave us, you've got another appointment, but we thank you for taking the time to be with us today.

Ms. MELLING: Thank you.

CONAN: Louise Melling, director of the ACLU Reproductive Freedom Project, was kind enough to join us here in Studio 3A.

And let's see if we can get one more call in on this. Gary. Gary joins us from Kansas City.

GARY (Caller): Hello. Thank you.

CONAN: Go ahead, Gary.

GARY: Thank you. I'm an emergency physician and I'm greatly troubled by what I perceive to be the intellectual dishonesty of the right-to-life movement in this issue. I guess the best way to summarize it is there are abortions and there are abortions. They consider a tubal pregnancy termination early on to be an abortion when in fact that's not a viable pregnancy and when in fact the life of the mother is in danger. And I'm highly insulted by the idea that if I'm a presented as an emergency physician with a patient who may happen to be a minor who needs to have that pregnancy terminated to prevent that pregnancy from rupturing and causing her to bleed to death, I'm highly insulted that I would ever have to get permission of anybody to do the right thing to treat that patient to save her life. We have emergency exceptions for treating patients. We treat patients without consent all the time in the emergency department. And this is one more example of how sometimes it's necessary to do the right thing when there's nobody to get permission from.

I'd also dare say that there are physicians willing to commit civil disobedience to do the right thing for their patients rather than follow some misguided law. And I really thank you very much.

CONAN: Well, Gary, one thing, you sort of lumped a large movement together, the right-to-life movement. There are a lot of distinctions. Not everybody would agree with that.

GARY: Well, I would agree with you on that, too, that there are--but there's a faction of that movement that thinks there's no reason to end a pregnancy and there's...

CONAN: Yeah.

GARY: And I just have no--I respect people's rights to their opinion; I respect the fact that different people, based on their religious background or their moral beliefs, more or less have to object to abortion in various cases, because otherwise they would be sanctioning murder. And I respect that. But I don't respect the idea that a doctor can't do the right thing to save a patient's life when it's clearly what needs to happen.

CONAN: OK. Gary, thanks very much for the call. We appreciate it.

GARY: Thank you.

CONAN: David Savage, before we let you go, New Hampshire is one of five states, as I understand it, that did not have the health exemption. If the Supreme Court issues the decision on the basis of the compromise you were talking earlier, on Justice Roberts, would that cover the other states where there is no health exemption?

Mr. SAVAGE: No, not directly, although seemingly it would give those other states, doctors in those other states, a way to, a means of accomplishing the same thing. That is, if they go to court and say on behalf of me and all other emergency room doctors, like the doctor who was just on the phone...

CONAN: Yeah.

Mr. SAVAGE: ...or all other doctors faced with a medical emergency of a young girl, we can go ahead with an abortion and then get an order that would allow that in advance, say it in advance, and then the doctors would know that if that situation arose, they could move quickly.

CONAN: David Savage, as always, nice to have you with us in the studio. Appreciate your time.

Mr. SAVAGE: Glad to be here, Neal.

CONAN: David Savage, the Supreme Court correspondent of the Los Angeles Times, was joining us here in Studio 3A.

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