WASHINGTON — The Supreme Court wrestled Wednesday with how to handle a New Hampshire law that requires a parent be told before a daughter ends her pregnancy, an emotional showdown in the court’s first abortion rights case in five years.
New Chief Justice John Roberts seemed sympathetic to the state, but other justices said they were troubled that the law does not make an exception for minors who have a medical emergency.
At the same time, the court did not appear satisfied with an appeals court ruling that struck down the law, one of dozens around the country that require parental involvement when a teen seeks an abortion.
Although the case does not challenge the 1973 Roe v. Wade ruling that said abortion is a fundamental constitutional right, the stakes are still significant and could signal where the high court is headed under Roberts and after the retirement of Justice Sandra Day O’Connor.
Abortion was a prominent subject in Roberts’ confirmation hearings and has emerged as a major issue in President Bush’s nomination of appeals court Judge Samuel Alito to replace O’Connor, who has been the swing vote in support of abortion rights.
Divisive, for court and country
As protesters demonstrated outside, the argument inside the court was at times contentious, with justices talking over each other and over the lawyers.
New Hampshire Attorney General Kelly Ayotte struggled to field sharp questions on why the state made an exception to allow abortions when a mother’s life — but not her health — is in danger.
The court has said before that abortion restrictions should include a health exception.
O’Connor, along with Justices Anthony Kennedy, Stephen Breyer and Ruth Bader Ginsburg, zeroed in on how doctors would avoid being prosecuted or sued if they performed an abortion if a severely sick minor did not want to notify a parent and a judge was unavailable to provide the necessary approval.
“That’s the real problem here for the doctor who’s on the line,” Ginsburg said.
Justice Antonin Scalia, however, said: “It takes 30 seconds to place a phone call” to a judge.
Alito could cast tie-breaking vote
If Alito is confirmed by the Senate early next year his vote could be needed to break a tie in the case, although justices may find a consensus in resolving the appeal without a landmark decision. For example, justices could tell the 1st U.S. Circuit Court of Appeals in Boston to review the matter again.
A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions than O’Connor.
While working for the Reagan administration in 1985, Alito said that he hoped the Supreme Court would one day overturn Roe . In a memo released by the National Archives on Wednesday, Alito said that because a reversal was unlikely the Reagan administration should instead try to persuade justices to accept state regulations on abortions.
The court could use this case to make it extremely difficult for abortion rights groups to challenge restrictions, without dealing with the sticky issue of overturning Roe itself. At issue is the legal standard for courts in handling lawsuits over abortion laws.
The New Hampshire case is being closely watched by the dozens of states that require minors to tell a parent or get permission before having an abortion.
Justices were told that 24 states mandate a parent’s approval and 19 states, including New Hampshire, demand parental notice.
The court is considering whether the 2003 New Hampshire law puts an “undue burden” on a woman in choosing to end a pregnancy. O’Connor is an architect of the undue burden standard, and was the deciding vote in the last abortion case five years ago, when justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome.
That law, like the one at issue Wednesday, did not have an exception to protect the mother’s health.
The New Hampshire law requires a parent or guardian be notified when an abortion is planned for someone under 18, followed by a 48-hour waiting period. A judge can waive the requirement.
“In an emergency, a woman needs to go to the hospital not a courthouse,” justices were told in a filing by Jennifer Dalven, attorney for Planned Parenthood of Northern New England which challenged the law.
The high court agreed to allow news organizations to air audio recording of the court’s argument immediately after its conclusion, giving the public its first chance to hear the new chief justice on the bench. Cameras are not allowed in the court.
Roberts, 50, replaced Chief Justice William H. Rehnquist, who died in September after a yearlong fight with cancer.
Justices agreed to hear the New Hampshire case before Rehnquist’s death — and before O’Connor surprised colleagues with news that she was stepping down.
The case is Ayotte v. Planned Parenthood, 04-1144.
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