Supreme Court sends New Hampshire abortion notification law back for fix

As they await a lower court ruling, legislators say a broad health exception was not intended in the statute.

By Amy Lynn Sorrel — Posted Feb. 6, 2006

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The U.S. Supreme Court decision allowing New Hampshire to mend its law that requires minors who are seeking abortions to notify parents has both sides of the debate claiming victory. Some doctors and abortion rights groups praised the ruling for protecting pregnant women's health, and other physicians and anti-abortion groups lauded its permission of parental notification.

In their unanimous Jan. 18 ruling, justices agreed that "it would be unconstitutional to apply the act in a manner that subjects minors to significant health risks." But they decided not to throw out the entire law.

"Invalidating the statute entirely is not always necessary or justified," wrote Justice Sandra Day O'Connor.

Instead, the Supreme Court sent the case back to the 1st U.S. Circuit Court of Appeals in Boston and instructed the lower court to determine the state Legislature's intent when it passed the law. The question is whether New Hampshire lawmakers would prefer no parental notification law or a law adapted to meet the high court's standard for protecting the health of pregnant minors in emergencies. The Court of Appeals had ruled the statute unconstitutional because it lacked a health exception.

By following the Supreme Court's recommendation, the appellate court "can craft a narrow injunction that would adequately address emergency cases, while allowing New Hampshire's Parental Notification Act to be effective," New Hampshire Attorney General Kelly A. Ayotte said.

Abortion-rights groups and many physicians praised the high court's ruling for guarding doctors' medical judgment and minors' safety in emergency situations.

"The court has reaffirmed that women's health and safety must be protected in medical and health emergencies, and doctors, not judges, should be the ones to make those decisions," said Dawn Touzin, New Hampshire public affairs director for Planned Parenthood of Northern New England, which brought the lawsuit in 2003 challenging the law.

Doctors also were concerned with the criminal and civil liability the law placed on them if they had to perform an emergency abortion on a minor without parental notice and could not wait for a court order, said Gary Sobelson, MD, past president of the New Hampshire Medical Society, which filed a friend-of-the-court brief along with the AMA/State Medical Societies Litigation Center and several other medical societies

"[The law] placed doctors in an ethically untenable position," said Dr. Sobelson, a Concord family physician.

"The Supreme Court validated the health exception very strongly, and in that regard, we feel the ruling is a positive outcome."

Protecting parental notification

Doctors and anti-abortion groups who oppose a broad health exception applauded the ruling because it did not nullify a law they felt adequately balances legal protections for doctors and the rights of minors' families.

The law includes language that "protects a minor from having health care delayed in a true emergency situation, while at same time requiring parental notification," said Gene Rudd, MD, associate executive director for the Christian Medical and Dental Assn. Dr. Rudd, a Tennessee obstetrician, said liability is not a threat to doctors because the type of medical emergencies discussed are rare. He added that doctors "take those risks every day in medicine, and this will be routine in acting in the best interest of our patients."

The Supreme Court also recognized that only a "small percentage" of abortion cases in which pregnant minors need immediate abortions "to avert serious and often irreversible damage to their health" would pose a constitutional problem. Nonetheless, the court stated, a state cannot restrict access in these cases.

New Hampshire's law requires 48-hour parental notification before a doctor can perform an abortion on a minor, unless it is necessary to save the teenager's life. The appeals court struck it down because the exception was not broad enough to include emergencies that are not life-threatening but pose serious risks, such as infertility or kidney failure.

Without parental notification, doctors could seek a court order to perform an immediate abortion to protect the teenager's health. If doctors had to act without judicial bypass, the law contends, they would be protected from liability under the state's competing harms defense. This states that the danger avoided -- in this case, a major health risk to the minor -- would outweigh the lawful alternative -- waiting for a judge's approval to perform the abortion.

Rep. Kathleen Souza, a Republican, the only active sponsor of the bill's four sponsors, said, "Our original intent was to craft something that would have some meaning and would stand up."

She explained that she thought a health exception was too broad because it could include nonmedical definitions, such as emotional, family or social problems, that could qualify as a risk to a minor's health. "We hoped it would stand with competing harms," she said.

Although the decision is out of legislators' hands for now, Souza said she does not expect the lower court to rule the law unconstitutional because the intent was not an all-or-nothing bill.

In 2000, in the last abortion case heard before the U.S. Supreme Court, justices struck down a Nebraska law banning late-term abortions because the law lacked a health exception. New Hampshire's case was different, the court stated, because the state asked for a more "modest remedy" to repair a law it knew was unconstitutional without a health exception.

Ultimately, the key for legislators will be crafting that definition.

Those who wrote the bill without the health exception "knew full well it was unconstitutional," said Sen. Lou D'Allesandro, a Democrat who opposed the law. A good bill, he said, "ought to cover all contingencies, and this bill left out a lot of contingencies." Souza said that should the lower court require a broad health exception, "I imagine we would go back to the Supreme Court."

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External links

The Supreme Court opinion Ayotte, attorney general of New Hampshire v. Planned Parenthood of Northern New England et al., in pdf (link)

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