The news in Wednesday’s Supreme Court argument over New Hampshire's parental notification abortion law was that the John Roberts era may be one in which the right to get an abortion is further curtailed.
At least at first blush, Roberts — hearing his first case as chief justice on abortion restrictions — seemed to be trying hard to save the New Hampshire law from being declared unconstitutional, as it was by two lower courts.
What was perhaps even more important was that Justices Anthony Kennedy and Sandra Day O’Connor — both of whom back abortion rights in general — also hinted that they, too, would try hard to salvage the New Hampshire law.
Enacted two years ago, but so far suspended by litigation, the law would require a doctor who intends to perform an abortion on a pregnant minor to give 48 hours notice to one of her parents. But the law does allow doctors to perform an abortion without notification to prevent a woman's death.
'To save a statute'
Kennedy spoke of a goal, which he hinted was one he would work toward: “the purpose is to save a statute which has thousands of applications that are valid.”
If O’Connor and Kennedy joined Roberts, the likely outcome in this case would be a five-justice majority to uphold the New Hampshire law. That's because Justices Antonin Scalia and Clarence Thomas are well known opponents of Roe v. Wade, the 1973 ruling that legalized abortions in the United States.
The law said the doctor needn’t comply with the parental notice requirement if the minor persuaded a judge to bypass the parent and authorize the abortion.
The U.S. Court of Appeals for the First Circuit had ruled the entire New Hampshire law invalid, partly because it did not provide an exemption for cases in which the doctor decided that abortion was needed to prevent damage to the girl’s health.
Urging the court to go along with the appeals court in ruling the law void, Jennifer Dalven of the American Civil Liberties Union said there ought to be no wait of 48 hours to inform a parent. “Delaying appropriate care for even a very short period can be catastrophic and puts the teen at risk of liver damage, kidney damage and even stroke, and infertility,” Dalven told the court.
She later added, parrying a question from Kennedy, “Your honor, I don’t think saving a statute is worth putting a teen’s health at risk.”
Roberts presses abortion rights lawyer
But Roberts repeatedly pressed Dalven on why doctors who object to the law could not file a suit to bar its enforcement in specific emergency cases.
“Why should you be able to challenge the act as a whole if your objection is so narrowly focused?” he asked Dalven.
“The vast majority of the cases,” the chief justice contended, “don’t create emergency situations.”
New Hampshire Attorney General Kelly Ayotte welcomed the apparent aid from Roberts, telling him, “Certainly if that one application in that one potential rare case was found not to be valid, then the remainder of the applications could go forward.”
It was the clearest indication yet that Roberts is inclined to favor restrictions on abortion. He gave no explicit clues in his Senate confirmation hearings that he would favor such restrictions — although he did show he was generally inclined to defer to state legislatures if possible.
Sounding a similar note to those struck by Kennedy and Roberts, O’Connor said to Dalven that instead of striking down the entire law “how can that be narrowed in some fashion to focus on the problem? The statute may well have a majority of valid applications.”
Kennedy also took this line, telling Dalven that nurses could call a judge to get an emergency bypass ruling. “The bypass procedure can go a long way toward saving this statute,” he said.
How much delay?
True to form, Scalia used his sardonic approach in needling Dalven who argued that “any delay (in getting an abortion) puts a minor’s health at risk” when a doctor determines her health might suffer by allowing the pregnancy to continue.
“Surely not the delay for a quick phone call,” Scalia replied, posing the hypothetical case of a specially designated New Hampshire “abortion judge” (not mentioned in the actual state law) who could be reached 24 hours a day, 365 days a year.
“It takes 30 seconds to place a phone call. This is really an emergency situation? If that’s the case, the doctor had better not put on his (surgical) gloves,” Scalia cracked.
Buttressing Ayotte’s — and perhaps Roberts’s — argument was Bush administration representative in the case, Solicitor General Paul Clement.
“It’s literally a one-in-a-thousand possibility that there’s going to be an emergency where the statute won’t operate" in conformity with previous Supreme Court rulings, Clement argued. "The real question for you (justices) is faced with that kind of case, do you invalidate 1,000 applications of the statute noting that 999 of them are constitutional?”
The most definite hints of votes to strike down the New Hampshire law came from the three stalwart members of the court’s liberal wing: David Souter, Ruth Bader Ginsburg and John Paul Stevens.
Not tipping his hand clearly was Justice Stephen Breyer.
“The greatest difficulty there is in this area,” noted Breyer, is “what does that health exception mean?” He explained, “Lots of people believe that ‘health exception’ is a way of getting abortion on demand.”
Breyer’s implication: A doctor could usually find some threat to a woman’s physical or mental health that could, in his medical judgment, justify an abortion.