New Hampshire parental notification law faces repeal

Some doctors say the abortion statute infringes on their medical judgment. Others say the law works.

By Amy Lynn Sorrel — Posted April 16, 2007

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New Hampshire could become the first state to repeal a law requiring physicians to notify parents before performing an abortion on a minor. Doctors are debating whether a fresh start will result in a better measure.

The House in March passed a bill that would undo the 2003 state law requiring doctors to inform at least one parent 48 hours before the procedure unless the abortion is necessary to save the patient's life. A provision also lets doctors or young women ask a judge to bypass the requirement.

The U.S. Supreme Court in January 2006 unanimously found the law flawed because it lacked a broader health exception to protect young women from emergencies that are not immediately life threatening but pose serious risks. But justices declined to strike down the entire measure as unconstitutional and instead sent it back to federal district court to determine if it could be redrafted.

Meanwhile, U.S. District Judge Joseph A. DiClerico Jr. in a February order acknowledged lawmakers' attempt at a repeal and postponed further consideration of the law while the Legislature debates its fate. If the repeal is enacted, the case will be over.

Abortion-rights groups and some physicians say the law was defective from the beginning and that revoking it is the only way to start clean with a measure that will protect minors' safety and doctors' medical judgment.

"Our focus has been on getting rid of what has been an unconstitutional law," said Dawn Touzin, spokeswoman for Planned Parenthood of Northern New England, which brought the lawsuit in 2003 challenging the law. The measure is aimed at restricting minors' access to abortion, she said.

"A repeal is step one, and if the Legislature wants to debate it, they can do so based on the foundation of a constitutional law," Touzin added.

Some doctors expressed concern that the law's lack of a health exception put them at risk of criminal or civil liability if they had to perform an emergency abortion without parental notice and without time to wait for a court order.

Doctors should encourage parental involvement in any kind of health care, said Palmer Jones, executive vice president of the New Hampshire Medical Society.

"But if it's determined by the doctor and the patient that [parental notice] might not be the best benefit for the patient, then physicians have to continue to treat," Jones said. "There's no question that the previous legislation should be repealed, because there's a great deal of confusion regarding that decision and who makes it in these cases."

The organization, along with the American Medical Association/State Medical Societies Litigation Center and several other medical societies, filed a friend-of-the-court brief arguing against the law.

Several House lawmakers tried but failed to amend the bill to insert a health exception into the parental notification statute, rather than overturn it. Supporters of a repeal expect it to pass the Senate, which is scheduled to receive the legislation in mid-April.

Democratic Gov. John Lynch has indicated he would sign the repeal. He "believes that parents should be involved, but he also recognizes that's not possible in every case," Lynch spokesman Colin Manning said.

Looking for a better definition

But some doctors and anti-abortion groups who oppose revoking the law say that starting from scratch won't necessarily address the underlying problems with a broader health exception.

"Crafting a new law may be one approach, but I'm not sure how far that can get unless there is a health exception, and if you base that on previous definitions that the courts have allowed, then the law becomes meaningless," said David Stevens, MD, CEO of the Christian Medical Assn., which filed a friend-of-the-court brief in support of the parental notification law.

He said the current definition of a health exception can be construed beyond a medical situation to include the emotional and economic well-being of the young woman. Rather than do away with parental notification laws, such as New Hampshire's, it might be best for the courts to further clarify and define what a health exception really is, said Dr. Stevens, a Tennessee family physician.

In addition, the type of medical emergencies that a health exception would address, such as infertility or kidney failure, are rare situations, he said. So the original law would hardly, if ever, interfere with doctors' decision-making or pose a legal threat as long as doctors are acting in good faith. "At the same time, a law without any teeth will be ignored," he warned.

At least one New Hampshire state senator, Joseph D. Kenney, is pushing to correct the law rather than have it deleted, though he acknowledged it was an uphill battle.

The original measure was not intended as an all-or-nothing bill, he said. Kenney said he plans to introduce an amendment to include a health exception to comply with the Supreme Court's order, while keeping an effective parental notification law on the books.

"Repealing the law doesn't make much sense -- what makes sense is trying to look at what the court ruled and toward correcting what the original law didn't spell out," he said.

The repeal's sponsor, Rep. Elizabeth S. Hager, who also serves on the board of NARAL Pro-Choice America, disagrees. "To use this [law] as a basis to correct it would be crazy. Get it off the books and out of the courts, and then we can really start fresh."

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The path to repeal

June 2003: The New Hampshire Legislature passes a bill requiring doctors to notify parents 48 hours before performing an abortion on a minor, except in life-threatening emergencies.

November 2003: Planned Parenthood of Northern New England and other abortion rights groups file a lawsuit challenging the law.

December 2003: The U.S. District Court for the District of New Hampshire blocks the law and rules it unconstitutional because it lacks a health exception.

November 2004: The 1st U.S. Circuit Court of Appeals upholds the district court decision.

January 2006: The U.S. Supreme Court says the law would be unconstitutional without a health exception. Justices decline to overturn the measure and instead send it back to the district court.

January 2007: The New Hampshire House introduces a bill to repeal the parental notification law.

February 2007: The district court postpones further deliberation on the case to allow the Legislature to consider the repeal.

March 2007: The New Hampshire House passes the repeal, rejecting several amendments that would include a health exception and a petition for reconsideration. The Senate is expected to receive the bill in mid-April.

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