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Landmark in abortion law unlikely

Supreme Court justices show little interest in using a parental notification case to make sweeping changes.

By BILL ADAIR
Published December 1, 2005

WASHINGTON - The abortion case before the U.S. Supreme Court on Wednesday was billed as a possible turning point. Groups on both sides held demonstrations outside the building. The head of NARAL Pro-Choice America called the case "monumental."

After all, the court is changing. Chief Justice John Roberts took over in October after the death of William Rehnquist, and federal judge Samuel Alito has been nominated to replace the retiring Sandra Day O'Connor.

But an hourlong argument Wednesday over a New Hampshire law requiring parents be notified before a minor has an abortion suggested the justices are approaching the case very narrowly. They showed little interest in using it to make a sweeping change in abortion law.

And even if O'Connor's replacement takes a stronger stand against abortion rights than she has, it appears a majority of justices will still uphold the landmark case of Roe vs. Wade. " "Roe, " said legal historian David Garrow, "is not in play."

The case Wednesday was about a New Hampshire law that requires parents be notified at least 48 hours before a minor can have an abortion. The only exception is when an abortion is necessary to prevent the minor's death.

Abortion doctors and Planned Parenthood challenged the law because it did not allow abortions for a minor whose health was jeopardized but did not face a risk of death.

A federal district court agreed with their suit and struck down the law shortly before it took effect. That decision was upheld by an appellate court that said the law was unconstitutional because it did not have a broad enough exception involving the health of the pregnant minor.

The U.S. Supreme Court has allowed states to require parental notification before a minor can have an abortion. At least thirty-three states, including Florida, have such laws. But the court has also said state laws on abortion must have exemptions that protect the health of the woman.

On Wednesday, New Hampshire Attorney General Kelly Ayotte told the justices that the law was constitutional because it had sufficient health protections. She said that even if judges found the health provision was unconstitutional, they could strike down that portion and leave the rest of the law intact.

Jennifer Dalven, an attorney for Planned Parenthood, said the law prevented doctors from responding quickly when a minor's health was at risk.

"Once a minor arrives in the emergency room, it is too late for her to go to court," Dalven said.

She said pregnant girls who need an emergency abortion should not be delayed by legal requirements.

"Every minute is critical. Every minute puts them at risk of losing their future fertility," Dalven said.

But Justice Antonin Scalia scoffed at that suggestion and said the law allowed doctors to get a timely court response to perform an emergency abortion.

"It takes 30 seconds to place a phone call," Scalia said.

Several justices said parental notification laws were acceptable but that the New Hampshire one was incomplete. "There is no problem with what the legislature did," said Justice Ruth Bader Ginsburg. "It just didn't do enough."

The comments of the justices, including some such as O'Connor who have supported abortion rights, hinted that they would send the case back to the lower court so the health provision could be struck down, while the parental notification requirement would be allowed to take effect.

The case was the first significant abortion controversy to come before the court in five years and the first for Roberts. His comments were limited to the New Hampshire law, but he sounded supportive of the law even if the health provision had to be struck down.

In another case Wednesday, the court heard arguments about whether federal racketeering laws could be used to sue abortion clinic demonstrators.

Garrow, the legal historian who has written extensively about abortion laws, had said earlier in the week that the New Hampshire case might be a turning point for the court. But after he saw Wednesday's argument, he said the justices were approaching the case so narrowly that they did not seem ready for a dramatic change.

"This is not going to be remembered as a landmark case 10 years from now," he said.

[Last modified December 1, 2005, 01:08:09]