Abortion in the United States: In the Courts In part two of All Things Considered's look at abortion today, we look at a New Hampshire abortion notification law case before the Supreme Court and public opinion. Then, we take a broader look at other abortion-related cases that might come before the high court in the future.
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Abortion in the United States: In the Courts

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Abortion in the United States: In the Courts


Abortion in the United States: In the Courts

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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Robert Siegel.

This half-hour we're looking at the issue of abortion, the courts and American society. The right to an abortion is generally popular in the US. A recent Pew Center poll said that 65 percent of Americans favor keeping Roe vs. Wade. The same poll also says that there is a great deal of support for some restrictions on abortion, including spousal notification and parental consent.

NORRIS: Parental notification is at the center of a case that is currently before the Supreme Court. When a minor wants to have an abortion, a New Hampshire law requires that the provider notify one of her parents at least 48 hours beforehand. Lower courts struck it down because it does not include an exception for the health of the young woman. The Supreme Court has already heard arguments in the case and expects to rule later in the term. Josh Rogers of New Hampshire Public Radio talked to people in Concord, and he reports that parental notification is popular in New Hampshire, just as it is across the country.

JOSH ROGERS reporting:

New Hampshire citizens have a reputation for liking their privacy, and the state has a long track record of support for the Roe vs. Wade decision. A July poll by the University of New Hampshire found 75 percent favor judicial nominees who'd uphold it; that number just about squared with opinions of post-holiday shoppers at a Concord strip mall.

Dr. CHARLES WINTERLING: I would hate to see Roe struck down.

ROGERS: That's Charles Winterling, a retired physician.

Dr. WINTERLING: I practiced medicine back in the day when I saw what happened to women who had illegal abortions. I watched young women die from them.

ROGERS: Yet Winterling admits to being unsure when it comes to requiring parental notification.

Dr. WINTERLING: I think it's a sticky issue. For a 12-year-old, that's one thing. For a 17 1/2-year-old, it's another thing entirely. I don't know. I'm--I really can't answer that.

ROGERS: A pair of shoppers, dodging the rain under a nearby awning, agreed with some 60 percent of New Hampshirites. They say it's not enough to let parents know their daughters are having an abortion. They say parents should have to give consent. Darlene Roy, an unemployed 32-year-old, says for her, terminating any pregnancy is wrong, saving for a single exception.

Ms. DARLENE ROY: Only in the case of rape. That's the only case to do it.

ROGERS: Her companion, 34-year-old Roland Borbo(ph), agrees with 46 percent of the New Hampshire electorate in supporting a qualified right to an abortion. He says it depends on the age of the fetus.

Mr. ROLAND BORBO: Couple weeks, that's one thing. But if there's actually a baby formed, then I think it's probably not right.

ROGERS: Another couple, on winter break from nearby Plymouth State University, say adults should be able to exercise total discretion over abortion decisions. Asia Devork(ph) and Adam Agosta(ph) differed, though, when it came to girls sharing their abortion decision with a parent.

Ms. ASIA DEVORK: They could have a bad relationship with their parents, or something really bad could happen to them because of telling their parents. The state would have no idea. They have no way of regulating what goes on in the family household.

Mr. ADAM AGOSTA: I think that a parent needs to know something like that because it's really hard on a person's well-being. It really is.

ROGERS: Agosta says his view's affected by having his teen-age girlfriend get an abortion without telling her parents. He adds, though, that any mandatory notification law ought to include a clear exception to protect the health of the mother. The absence of such a provision is why New Hampshire's law is now pending before the US Supreme Court. For NPR News, I'm Josh Rogers in Concord, New Hampshire.

SIEGEL: Joining us now to talk about what the future might hold in the way of litigation over abortion is Jeffrey Rosen, professor of law at George Washington University.

Welcome back to the program, Jeff.

Professor JEFFREY ROSEN (George Washington University): Good to be here.

SIEGEL: We just heard mention of the notification provisions of the New Hampshire law. That's the case that's currently before the Supreme Court that's been argued already.

Prof. ROSEN: It is. And the question before the justices is whether to strike down the parental notification provision because it doesn't contain a medical emergency exception or whether to essentially create that exception and say that the law can stand.

SIEGEL: Other questions that might come before this term of the Supreme Court regarding abortion?

Prof. ROSEN: The court will decide next week whether to hear a challenge to a federal ban on partial-birth abortions. A few years ago the court struck down state bans on so-called partial-birth or late-term abortions on the grounds that they didn't contain a health exception. And Congress went around and repassed a similar ban; didn't include a health exception. Lower courts have struck this down on the grounds that the reasoning applies, and the Supreme Court will decide whether to take this up.

SIEGEL: Does the federal law ban abortions in the third trimester of any procedure, or does it simply ban that procedure, which as we say is called by its opponents partial-birth abortion?

Prof. ROSEN: The law bans the procedure, and supporters say that this is a procedure that's very rare and only takes place in the third trimester. Opponents of the law say that the ban on the procedure is so imprecisely drafted that it might actually cover a very common procedure that takes place often in the second trimester and, therefore, really is a wedge into a far broader ban on early term abortions.

SIEGEL: So as for the immediate short-term cases either at the Supreme Court or possibly coming to the Supreme Court, even if one upheld the ban in the federal law and even if one upheld the New Hampshire law as it's written, the right to an abortion in the first trimester of pregnancy remains a right.

Prof. ROSEN: Absolutely. And this is a crucial point. Now abortion rights supporters say that this is a slippery slope and that by upholding these popular late-term procedures, it's really an attack on the early-term right. But that's probably not the way it's going to materialize on the court. The early term right will remain solid and protected.

SIEGEL: So what we see nowadays are challenges around, first of all, later-term abortions and, also, varieties of notification that are required, whether it's a minor notifying her parents and what exceptions there might be to that or whether it's a woman notifying her husband. Evidently polls show that's a popular provision as well--spousal notification.

Prof. ROSEN: It is. Between 60 and 70 percent of the public supports many of these provisions, and by upholding them, the Supreme Court has exquisitely expressed the views of the public on all of these issues. The Supreme Court, in its abortion jurisprudence, has tended to uphold the provisions that the public likes and just strike down the ones that it doesn't.

SIEGEL: When the legalization of abortion really came on the map in the United States, California legalized abortion in some cases, and then later New York state legalized abortion in many cases. Governors like Ronald Reagan and Nelson Rockefeller signed into law state laws that made legal a practice that had been before that illegal. What have we gained by taking this out of the arena of state legislatures, state elections and governors by having it all settled by the federal courts all these years?

Prof. ROSEN: There are pro-choice critics of Roe, such as Justice Ruth Bader Ginsburg, who argue that by constitutionalizing the abortion debate, the court short-circuited a trend toward liberalization that would have continued and accomplished nothing more than to energize the pro-life movement to destroy our political confirmation hearings by making all of them about abortion and essentially to distract attention from the fact that the core right to abortion is popular and secure.

SIEGEL: Jeffrey Rosen of George Washington University Law School and legal affairs editor of The New Republic, thank you very much for talking with us.

Prof. ROSEN: Thanks very much.

SIEGEL: One last thought. Almost 13 years ago, I asked George Michaels, the New York state legislator who had cast the deciding vote to legalize abortion, had he thought back in 1970 that the vote that ended his career would also end the debate over abortion. He said, `That's right, I thought this would end it.' Well, 36 years later, Judge Samuel Alito will go before the Senate Judiciary Committee next week, and abortion is very much on the agenda.

NORRIS: If you want to preview the hearings, you can go to npr.org.

SIEGEL: You're listening to ALL THINGS CONSIDERED from NPR News.

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