The Supreme Court, re-entering the abortion debate amid burgeoning speculation about Chief Justice William H. Rehnquist’s retirement, agreed Monday to hear an appeal of a decision striking down a state parental notification law.
Justices will review a lower court ruling that struck down such a law in New Hampshire. The Boston-based 1st U.S. Circuit Court of Appeals said the 2003 law was unconstitutional because it didn’t provide an exception to protect the minor’s health in the event of a medical emergency.
The decision to review the emotional case, which also comes at a time of bitterly partisan fighting in the Senate over President Bush’s nominees for federal judgeships, will be heard in the next term beginning in October. Liberal groups have vowed to fight any Rehnquist replacement who opposes the high court’s landmark 1973 decision legalizing abortion.
“Boy, it does make for an interesting summer — potential chief justice retirement, the filibuster fight and the Supreme Court delving into the abortion issue once again,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice.
Jennifer Dalven, the American Civil Liberties Union lawyer handling the case, said: “We are welcoming the opportunity to put to rest any lingering questions about whether a woman’s right to an abortion is entitled to full constitutional protection.”
In their appeal, New Hampshire officials argued that the abortion law need not have an “explicit health exception” because other state provisions call for exceptions when the mother’s health is at risk. They also asked justices to clarify the legal standard that is applied when reviewing the constitutionality of abortion laws.
The New Hampshire law required that a parent or guardian be notified if an abortion was to be done on a woman under 18. The notification had to be made in person or by certified mail 48 hours before the pregnancy was terminated.
Last big abortion ruling was in 2000
In its last major abortion decision in 2000, the Supreme Court ruled 5-4 that state abortion laws must provide an exception to protect the mother’s health. Justices at the time reasoned that a Nebraska law, which banned so-called “partial-birth” abortions, placed an “undue burden” on women’s abortion rights.
Since then, several lower courts have applied that health exception to abortion laws requiring parental notification. The New Hampshire case challenged whether the Supreme Court’s 2000 ruling actually required that.
Abortion laws are “entirely different than parental involvement laws, which obviously do not purport to ban abortions, but simply seek to promote the interests of minors in having the benefit of parental involvement,” New Hampshire legislators wrote in a friend-of-the-court filing.
Earlier this year, justices declined to hear a challenge to the landmark Roe v. Wade ruling by the woman known as “Jane Roe” who was at the center of the historic case.
It also declined to consider reinstating an Idaho law requiring girls under age 18 to get parental consent for abortions except under the most dire of medical emergencies.
The latest case is Ayotte v. Planned Parenthood, 04-1144.