WASHINGTON -- The first abortion case to be considered by the U.S. Supreme Court in five years prompted a tense discussion inside a packed chamber yesterday with justices appearing split over whether the law does enough to safeguard the health of a pregnant girl.
The case involves a New Hampshire law that requires a parent to be notified before a minor can have an abortion. Though the law does not directly challenge the right to an abortion guaranteed by Roe v. Wade, advocates on both sides on the debate believe the outcome could signal where the court under Chief Justice John G. Roberts Jr. could come down on the issue.
The debate mostly turned on the law's exclusion of a health exception for the mother. The court has ruled before that such a protection is necessary in any statute that limits access to abortions. Supporters of the law have asserted, however, that it is otherwise constitutional and that the entire law should not be struck down.
Roberts also challenged opponents of the law for targeting it in its entirety for that reason.
"Why should you be able to challenge the act as a whole if your objection is so narrowly focused?" Roberts asked Jennifer Dalven, a New York attorney who argued on behalf of Planned Parenthood of Northern New England, a defendant.
The New Hampshire law requires a parent to be notified 48 hours before an abortion can be performed on a minor. A doctor is permitted to do the procedure without notifying a parent if the girl's life is at risk. The law - which was approved by the Legislature in 2003, but overturned by two lower courts and never enacted - gives a judge the right to determine if a girl is mature enough to give informed consent for the procedure.
Though the court has ruled before that abortion restrictions must protect a woman's health, New Hampshire Attorney General Kelly A. Ayotte said that the state's law, which includes an exception when the life of the mother, but not her health, is at risk, did not need a specific safety measure. Ayotte cited a state provision, which she called a "competing harm's defense," that she believes would protect doctors who perform an abortion when a girl's health is at risk. That statute indicates that illegal conduct must be urgently necessary and that the harm sought to be avoided must outweigh the harm that the law aims to prevent.
Associate Justice Stephen G. Breyer asked what might happen if a pregnant girl goes to an emergency room in distress at 2 a.m. and doesn't want the doctor to call her parents. What if in that circumstance her future fertility was at risk, not her life, he asked.
"The physician in those instances could perform the immediate abortion," Ayotte said.
Breyer replied: "It doesn't say that in this statute; it suggests the contrary."
Justice Sandra Day O'Connor, who has historically been the swing vote in cases regarding a woman's reproductive health rights, asked if a doctor would be protected from civil and criminal action should he perform an abortion in the situation outlined by Breyer. Ayotte said that state law precludes civil liability.
"By the plain language of the competing-harms defense, it also precludes civil liability," Ayotte said.
With time yielded to him by Ayotte, Solicitor Gen. Paul D. Clement argued the U.S. government's support for the New Hampshire law. Clement said that just one in 1,000 cases exists "where there's going to be an emergency where the statute won't operate."
"Faced with that kind of case, do you invalidate 1,000 applications of the statute, noting that 999 of them are constitutional?" Clement said.
Clement said the court has some discretion in determining that the statute is unconstitutional only in cases of emergency and could draft a more precise emergency provision to address the matter.
Associate Justice David H. Souter warned against such a move, noting that the New Hampshire Legislature deliberately passed a law that does not include a health exception.
"If we were to craft such a limitation we would be flying quite precisely in the face of the expressed legislative intent," Souter said.
Dalven suggested to the court that for a pregnant girl with health problems "delaying appropriate care for even a short time can be catastrophic." "The unfortunate reality is that some pregnant teens experience medical emergencies for which the appropriate care is immediate abortion," she said.
Associate Justice Anthony M. Kennedy posed a question about how "immediate" might be defined. "There can be nurses or attendants who can get the judge on the line," Kennedy said, noting that the judicial bypass procedure "can go a long way toward saving this statute."
Dalven firmly disagreed. "Once a minor arrives in the emergency room, it is too late for her to go to court," she said. "As we said, every minute is critical."
Associate Justice Antonin Scalia tried again on that count, suggesting that New Hampshire could set up a special office, "open 24 hours a day, and this is the abortion judge, and he can be reached anytime, anywhere." "It takes 30 seconds to place a phone call," Scalia said.