Court rules on teen abortion
on Jan 18, 2006 at 10:50 am
The Supreme Court on Wednesday gave New Hampshire a new chance to salvage — though in a narrower form — its law requiring that parents be notified if their teenaged daughter is seeking an abortion.
The Court, in a rare unanimous vote in an abortion case, ruled that lower courts may have gone too far in striking down the entire parental notice law, enacted in 2003. Declaring that pregnant teenagers sometimes need an immediate abortion to avert serious health problems, the Court said the New Hampshire law must be read to allow that when it occurs, which it suggested would be “in a very small percentage of cases.”
If the law can be interpreted to make that exception, and still be in keeping with what the state legislature intended, the Court indicated, the remainder of the law may remain intact. The state law, as written, makes an exception for teenagers where an abortion is necessary to save the pregnant girl’s life, but it does not make a health exception.
Justice Sandra Day O’Connor, in what may be her final ruling as a member of the Court, wrote the decision. She summed it up this way in the opening paragraph:
“We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.”
The ruling was noteworthy in a number of respects, in addition to the unanimity: the O’Connor opinion was unusually brief (ten pages in all, only six pages of analysis), it did not clarify whether abortion restrictions must always have a health exception (in non-emergency situations), it did not settle whether abortion laws’ constitutionality will be judged by a different standard than other laws (the so-called “Salerno” issue), and it was the first abortion decision in which Chief Justice John G. Roberts, Jr., cast a vote of any kind — here, silently joining in a single opinion.
In some ways, the opinion seemed to reveal a collective decision by Justices with far different views on abortion to suspend their disagreement until some future occasion, in order to deal with a case that had come increasingly to look as if it were confined to the law for clearcut medical emergencies, instead of being a major test case on the underlying constitutional controversy. By no means, however, did it bridge the existing fundamental disagreements among the Court’s members in this field of law.
Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges’ authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.
If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor’s professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.
Among the immediate follow-up questions raised by the ruling is whether the opinion will have an immediate effect on the Court’s consideration of a far more controversial abortion law — the federal ban on the procedure that abortion foes refer to as “partial-birth” abortion. Pending now at the Court is the Bush Administration appeal (Gonzalez v. Carhart, 05-380), challenging a federal appeals court ruling striking down that federal ban for lack of a health exception.
Perhaps the Court will now go ahead and grant review of the Carhart case, but it is just as likely that it would opt to send that case back to the Eighth Circuit to weigh whether the nullification of the federal statute in its entirety was necessary, under the remedy principle spelled out Wednesday in the case of Ayotte v. Planned Parenthood of Northern New England (04-1144).
The Court examined the Carhart case at its Conference on Jan. 6, but took no action. It apparently will consider it again at the Conference this Friday. Some action could be announced next Monday, which, incidentally, is likely to be Justice O’Connor’s last day on the bench. (The Senate Judiciary Committee is due to vote on the nomination of her successor, Judge Samuel A. Alito, Jr., next Tuesday, and his ultimate approval by the Senate now seems predictable.)
The Court ruling Wednesday noted that, of the 44 states with laws requiring some parental role on teenage abortions, only New Hampshire and three others make no exception “for minors’ health in an emergency.” The others are Minnesota, Missouri and Wyoming. The Court stressed, as it had before, that states do have the right to require parental involvement. “We cast no doubt” on that in the new ruling, O’Connor wrote.
Such laws, under the Court’s past precedents, must include a parental “bypass,” allowing a pregnant minor to seek approval of a judge for an abortion when bringing in the parents would not be in the girl’s best interests. Such a bypass procedure must be rapid and confidential. The challenge to New Hampshire’s law included a claim that the statute’s judicial bypass does not provide sufficient confidentiality — an issue that the Court said may arise again as the case proceeds further in lower courts.
(UPDATE: One of the comments below says that the preceding paragraph is inaccurate in saying that past precedents require a bypass for a parental notice law (as opposed to a parental consent or veto law, which must have a bypass). The Court’s record in this area is not so clear. In 1990, in Ohio v. Akron Center, the Court said it was leaving that issue open “because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures,” the Ohio notice law at issue contained a bypass procedure meeting the requirements previously laid down for consent laws. Justice Stevens, in a concurring opinion in that case, said it was correct that the issue had not been decided, but he added: “We have, however, squarely held that a requirement of preabortion parental notice in all cases involving pregnant minors is unconstitutional. Although it need not take the form of a judicial bypass, the state must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests.” The footnote in Lambert v. Wicklund (1997) to which the comment refers contains a citation to a Stevens footnote in a 1979 decision (Bellotti v. Baird) and, of course, that was some 11 years prior to Akron. It also might be noted that, in the case decided Wednesday by the Court, involving the New Hampshire law, the First Circuit’s discussion of the bypass issue in the notice context treated the two contexts as indistinguishable. The New Hampshire notice statute did provide a bypass, but the Supreme Court did not pass on that provision. O’Connor’s footnote 1, however, listed state laws requiring “parental involvement (that is, consent or notification) laws,” without distinguishing between the two. The blog, of course, very much appreciates all comments that seek to improve our accuracy. (END UPDATE.)
The most significant part of the O’Connor opinion was its Section III, the three-and-a-half pages of discussion of “the appropriate relief” when a law restricts access to abortion in a way that may “harm women’s health.”
The Court said that, in facing that issue, it was following three principles: nullify no more of an unconstitutional law than is necessary, do not rewrite states laws to make them constitutional, and stay true to the intent of the legislature in passing the law at issue.
While O’Connor wrote that the lower courts in the New Hampshire case “chose the most blunt remedy,” she did not chastise them for doing so. “That is understandable,” she said, “for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw” — the lack of a health exception, in the Nebraska state “partial-birth” law struck down in 2000 in Stenberg v. Carhart.
In the Stenberg case, however, the two sides “did not ask for, and we did not contemplate, relief more finely drawn,” the opinion noted. Here, it added, “we agree with New Hampshire that the lower courts need not have invalidated the [parental notice] law wholesale” but could have crafted a narrower court order.
“Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem,” O’Connor said. “So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutonal application” — that is, the absence of permission for an immediate abortion when needed “to avert serious and often irreversible damage” to the health of pregnant minors.
The Court conceded that there is a dispute in this case about whether the state legislature intended to have the law understood to allow such an exception. The state insists that a severability clause in the law would allow that narrowing of the sweep of the law, but abortion providers insist that the legislature wanted no health exception at all, even if that meant the entire notice law was invalidated. The Court left it to lower courts to resolve that dispute.
Finally, the Court said, if the state law does survive this further review, the First Circuit should consider the challenge to the confidentiality of the state’s judicial bypass procedure.
