Justices to weigh parental notice for abortions

November 30, 2005|By JENNIFER SKALKA | JENNIFER SKALKA,SUN REPORTER

The Supreme Court will take on its first abortion case in five years today, hearing arguments on a New Hampshire law that says parents must be notified before a minor obtains an abortion, even in most cases of medical emergency.

Besides being a possible bellwether for how abortion cases might fare under the changing Supreme Court, the case could be significant in determining how much latitude states have in setting limits on abortion and when such limits may be legally challenged.

Champions of the measure, which has been overturned by two lower courts, say it provides parents with vital access to decisions about a daughter's health and well-being. Opponents argue that it fails to include an adequate health exception for the minor and describe it as an effort by the Bush administration and conservatives to chip away at the protections of Roe v. Wade, the 1973 high court ruling that guaranteed a woman's right to an abortion.

The New Hampshire law requires a physician to wait 48 hours after a parent or guardian has been notified before performing an abortion on a female younger than 18. The only exception provided in the statute is if the girl's death is imminent. The law includes a judicial bypass, which gives a judge the right to determine whether a minor is "mature and capable of giving informed consent to the proposed abortion." Under the law, a judge must rule within seven days when a petition is filed on a girl's behalf.

But state Rep. Terie Norelli, a New Hampshire Democrat who opposes the restrictions, said it is foolish to force a girl whose health is at risk to wait a week before an abortion.

"I do not believe that there is anyone who would prefer that a judge make a health care decision in an emergency medical situation," Norelli said.

Under the New Hampshire law, a doctor who performs an abortion without following the notification procedure could be charged with a misdemeanor, which is punishable by up to one year in prison, and subject to a civil action by the person wrongfully denied notification.

Thirty-five states have parental notification or consent laws on the books or scheduled to take effect, and though the requirements of the provisions vary, just four of them lack health exceptions for the mother. Those states - Missouri, Minnesota, Wyoming and North Dakota - have not faced court challenges about the health exception.

Maryland's notification law requires the consent of or notice to one parent; however, the law allows a physician to waive notification based on a girl's maturity or if contacting a parent would not be in her best interest.

Opponents of the New Hampshire law say that if it is upheld, it would open the door for states to pass laws denying women abortions in cases of a medical emergency.

"Because of prior precedent they may not overturn Roe, but what this case would do is eviscerate Roe, it would leave Roe standing but with no legs," said Dawn Touzin, public affairs director of Planned Parenthood of Northern New England, a defendant in the lawsuit.

Pro-choice advocates believe the health exception is a crucial element of any notification law because it allows a doctor to perform an abortion in emergency circumstances that could prove harmful or fatal. For example, a girl could hemorrhage, experience kidney or liver troubles, or her fertility might be in jeopardy.

Meanwhile, the legal arguments being made in support of the New Hampshire law strike particular fear among opponents of the New Hampshire provision.

With backing from the Bush administration, which filed a "friend of the court" brief in the case, New Hampshire Attorney General Kelly A. Ayotte will argue for the law on two points: that other emergency health protections are already in place, making the health exception unnecessary; and a more technical legal assertion - that only individuals harmed by the law should be able to challenge it. If the justices accept the latter, it could prevent court challenges to abortion limits until laws allowing them are on the books.

"What's going on in this case is the attorney general and the Bush administration would eliminate that ability to challenge laws before any harm occurs," said Brigitte Amiri, staff attorney for the American Civil Liberties Union, which is arguing for the defense. "We'd have to wait until young women and teenagers were actually harmed before going to court.

"It would be a new legal world if the Bush administration and the [New Hampshire] attorney general win this piece of the case," she said.

What started as a law affecting only New Hampshire residents, "has gone way beyond that," Touzin said. "It will affect every state."

Ayotte argues that New Hampshire has a statute called a "competing harm's" defense, which would protect a doctor who performs a necessary emergency abortion without notifying a child's parent.

"We're not taking the position that you should not protect women's health," Ayotte said. "We're just saying that you don't necessarily need an express provision."

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