Practice CAPT Exercise
Parental Notification for Abortion

Mauro, Tony. "Court Poised to Upend State Law on Parental Notice for Abortions." New Jersey Law Journal.  (Dec 5, 2005): NA. Expanded Academic ASAP. Gale. Westport Public Library. 19 Oct. 2007 

Considering its first abortion case in five years, the U.S. Supreme Court last Wednesday seemed ready to apply its pro-abortion rights precedents to rule against a New Hampshire parental notification law.

During oral arguments in Ayotte v. Planned Parenthood of Northern New England, several justices criticized the law for failing to spell out an exception that would allow doctors to perform abortions quickly in medical emergencies without having to contact parents or a judge.

Abortion rights supporters emerged from the Court cautiously optimistic about the outcome. "The chances that the New Hampshire law will come out of this intact seem very small," said Steve Shapiro, legal director of the American Civil Liberties Union, which represented challengers to the New Hampshire law.

"It all comes down to the Court forcing New Hampshire to create a medical-emergency procedure," said David Garrow, a Cambridge University professor who has chronicled the Court's abortion jurisprudence and who attended Wednesday's argument. The Court could accomplish that quickly by remanding the case to the First U.S. Circuit Court of Appeals, which struck down the entire law last year.

The Court chamber was packed, in part because it was the first occasion to see Chief Justice John Roberts Jr. handling an actual abortion case - after he carefully avoided the subject in confirmation hearings in September.

Roberts actively questioned lawyers for both sides, and only once seemed to tip his hand in favor of the New Hampshire law, which requires notice to a parent 48 hours before an abortion can be performed on a minor. Notification can be waived if a doctor certifies that the abortion is needed to prevent the patient's death.

When Justice John Paul Stevens suggested it would not have been hard for the New Hampshire Legislature to write the law with a clearer exception for medical emergencies, Roberts suggested the legislators might have felt it was unnecessary. But Roberts also indicated he was sympathetic to concerns by physicians about what to do in medical emergencies.

New Hampshire Attorney General Kelly Ayotte, who defended the state's law, appeared caught off-guard by the heavy attack from several justices on the medical-emergency issue.

Justice Stephen Breyer offered a vivid hypothetical of a 15-year-old girl who shows up at a hospital at 2 a.m. on a Saturday seeking an abortion. She has high blood pressure, and the doctor feels an abortion is necessary immediately, not to save her life but to protect her health and future fertility. "What's supposed to happen?" Breyer asked.

Ayotte said the abortion could take place under a "competing harms" balancing test and a judge could be called under the law's judicial bypass procedure. But justices seemed wary, stating that because the law is not explicit, physicians might be reluctant to perform abortions in medical emergencies for fear of losing their licenses or of being sued. Adding to his hypothetical, Breyer asked what a physician would do if "he happens to have his lawyer with him."

O'Connor and Justice Ruth Bader Ginsburg were concerned that physicians would expose themselves to litigation by performing abortions in medical emergencies. "The real problem here is the doctor on the line," said Ginsburg.

An issue in the case that loomed large before the arguments was the standard the Court should use in assessing so-called facial challenges to abortion laws - challenges filed, as in New Hampshire, before the law actually takes effect. Abortion rights opponents urged use of a strict standard under which a law restricting abortion could be struck down in a facial challenge only if the law has no applications that are constitutional.

But at the arguments Wednesday, most justices seemed content to apply a standard that would make it easier for abortion restrictions to be struck down if they merely place an "undue burden" on a woman's right to an abortion. That standard was applied in the 1992 case Planned Parenthood v. Casey, a precedent that upheld Roe v. Wade and seemed to be embraced by most justices Wednesday.

By the time American Civil Liberties Union lawyer Jennifer Dalven rose to speak on behalf of challengers to the New Hampshire law, she seemed to have an easier task before her. She repeatedly said that in medical emergencies "every minute is critical," so physicians should not be required to contact a judge before performing an abortion. Once a patient arrives in an emergency room, she said, "it is too late to go to court."

Dalven tried to encourage the justices to go beyond merely remanding the case on the medical-emergency issue. An order that in effect rewrote New Hampshire's law, she said, would "remove any incentive" for states in the future to write abortion laws that are constitutionally sound.

Tony Mauro is Supreme Court correspondent for ALM Media.

Law, Nathaniel. "Abortion: Supreme Court avoids disturbing abortion precedents by ruling on grounds of remedy - Ayotte v. Planned Parenthood of Northern New England." Journal of Law, Medicine & Ethics. 34.2 (Summer 2006): 469(3). Expanded Academic ASAP. Gale. Westport Public Library. 19 Oct. 2007 

On January 18, 2006, the United States Supreme Court unanimously held that the constitutional challenge to New Hampshire's Parental Notification Prior to Abortion Act would be remanded to the United States Court of Appeals for the First Circuit, to determine whether the Court of Appeals could, consistent with New Hampshire's legislative intent, formulate a narrower remedy than a permanent injunction against enforcement of the parental notification law in its entirety.  

In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act ("The Act").  The Act specifies, in pertinent part, that "No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed ... until at least 48 hours after written notice of the pending abortion has been delivered...."  The Act allows for three exceptions where a physician may perform an abortion on a minor child without parental or guardian notification.  The first exception arises when the abortion provider certifies that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice to a parent or guardian.  The second exception occurs where the person or persons who are entitled to receive notice certifies in writing that they have been notified.  The third and final exception allows a minor to petition a judge to authorize her physician to perform an abortion if the judge finds that the minor is mature and capable of giving her informed consent, or that an abortion without parental notification serves the minor's best interests.  This "judicial bypass" measure is confidential and given precedence over other pending matters so that the court may reach a prompt decision.  Additionally, the trial and appellate courts must rule on bypass petitions within seven days.  Though the Act acknowledges the above exceptions to parental notification prior to a minor's abortion procedure, the Act does not explicitly allow for an exception whereby a physician may perform an abortion in a medical emergency without parental notification.

The Respondents, Dr. Wayne Goldner and three clinics (including Planned Parenthood of Northern New England) that offer reproductive health services and abortions for pregnant minors, brought suit under 42 U.S.C. [section] 1983.  The Respondents alleged that New Hampshire's Parental Notification Prior to Abortion Act is unconstitutional because the Act does not explicitly include an exception allowing a physician to perform an abortion on a minor in a medical emergency when the minor's health would be endangered by delays inherent in the Act.  The United States District Court in New Hampshire declared the entire Act unconstitutional on the grounds that the Act failed to meet the constitutional requirement that any law that restricts a woman's access to an abortion must provide a health exception.  The Court also found that the "judicial bypass" provision would not operate quickly enough in medical emergencies, and that the Act's life exception was unconstitutional because it forces physicians to "certify with impossible precision" when abortion is medically necessary to avoid death.  On appeal, the United States Court of Appeals for the First Circuit concluded that the entire Act was unconstitutional notwithstanding the judicial bypass measure, because the judicial bypass was not an adequate substitute for an explicit health exception within the statute itself.  The Court of Appeals affirmed the District Court's decision, declaring the Act unconstitutional and preventing the Act's enforcement.  

The United States Supreme Court subsequently granted a request to review the Court of Appeals' decision, specifically to "decide whether the courts below erred in invalidating the Act in its entirety because it lacks an exception for the preservation of pregnant minors' health."  In a narrowly tailored holding, the Supreme Court agreed that New Hampshire's Parental Notification Prior to Abortion Act could be applied unconstitutionally in certain situations (e.g. when a pregnant minor's health is at risk).  Instead of affirming the lower courts' decision to invalidate the law in its entirety, however, Justice Sandra Day O'Connor, writing for the Supreme Court, vacated the First Circuit Court of Appeals' decision and returned the case to the Court of Appeals to determine whether a remedy exists that would correct the constitutional flaw in the Act without invalidating the entire law.  Most significantly, the Supreme Court avoided addressing its controversial abortion precedents and decided Ayotte on the grounds of choice of remedy.

Justice O'Connor began the opinion by stating: "We do not revisit our abortion precedents today, but rather address a question of remedy...."  The Supreme Court carefully sidestepped the opportunity to confront its controversial abortion precedents by phrasing the issue as a question of what the appropriate judicial relief should be when a court is faced with a statute that, in restricting access to abortion, may be applied in a manner that unconstitutionally harms a woman's health.  When confronted with a constitutional flaw in any statute, the Court noted that the remedial preference would be to enjoin "[O]nly the unconstitutional applications of a statute while leaving other applications in force ... or to sever its problematic portions while leaving the remainder intact...."  The Supreme Court enumerated three principles that should inform a Court's approach to remedies.  The first principle is that a Court will not invalidate any more of a legislature's work than is necessary, because invalidating an entire act as unconstitutional thwarts the intent of the people's elected representatives.  The "normal rule" and correct response is a partial invalidation of the portions of the statute that are unconstitutional, while leaving the rest of the statute otherwise intact.  The second principle is that a Court must avoid rewriting state law to conform the law to Federal constitutional requirements, even while the Court attempts to salvage the law.  The Court noted that making line-drawing distinctions in "murky constitutional context[s]" may involve an invasion of the legislature's field, and therefore a Court should be hesitant to enter that domain.  Finally, the third principle is that a Court cannot use its remedial powers to skirt the legislature's intent.  Once a Court finds an application or portion of a statute unconstitutional, the Court must ask: "Would the legislature have preferred what is left of its statute to no statute at all?"

In Ayotte, the Supreme Court found that the District Court and the Court of Appeals had chosen the "most blunt remedy" by invalidating New Hampshire's Parental Notification law in its entirety.  The Supreme Court agreed with New Hampshire's position that such a wholesale invalidation of the parental notification law was unnecessary. Therefore, the Supreme Court concluded, as long as the lower courts remain faithful to legislative intent, the lower courts can issue a more narrowly drawn injunction preventing enforcement of only the statute's unconstitutional applications while leaving the rest of the statute in force.  Or, if the lower courts find that they cannot issue an injunction preventing the unconstitutional applications of the statute, then they could invalidate the statute in its entirety as long as the courts find that such an action was within the New Hampshire legislature's intent.  

"Eight Senate Democrats Flip, Kill Parental Notification Bill. " National Right to Life News.  33.10 (Oct 2006): 3. 

WASHINGTON

On the last day of the regular congressional session, a bill (S. 403) to require notification of one parent before a minor obtains an out-of-state abortion died when Senate Democrats voted over-whelmingly to block it.

Hours before Congress adjourned for pre-election campaigning on September 29, 57 senators voted to remove the final procedural obstacle to S. 403 and send it to President Bush for his signature.

But 57 was three votes short of the 60 required under Senate rules to break through a procedural roadblock erected by the Senate Democratic leadership, which had been obstructing the progress of the legislation for months.

Over half of the states have laws in effect that generally require notification to, or consent of, one or both parents (or authorization by a judge) before an abortion can be performed on a minor daughter. But such laws are often circumvented when minors travel to neighboring states that lack such laws. Many abortion clinics in non-notification states advertise across state lines in Yellow Pages, using avoidance of parental notification as a selling point.

The bill, S. 403, the Child Custody Protection Act, as it initially passed the Senate on July 25 by a vote of 6534, would have prohibited transporting a minor across state lines to obtain an abortion, if this abridged the parents' right to be notified under the home-state law. However, the Senate Democratic leadership subsequently raised unusual procedural barriers that prevented the bill from going to a House-Senate conference committee, where it could have been reconciled with a bill on the same subject passed by the House in 2005 (H.R. 748).

On September 26, the House of Representatives took up the Senate-passed bill, added a provision to require an abortionist in any state to notify one parent before performing an abortion on a minor from another state (with certain exceptions), and sent the bill back to the Senate by a vote of 264153 (under the title "Child Interstate Abortion Notification Act," CIANA, pronounced "SEE-Anna").

When the Senate Democratic leadership responded by indicating that the amended bill would face further obstruction, pro-life Senate Majority Leader Bill Frist (R-Tn.) made a decisive attempt to win enactment of the bill by forcing the cloture vote.

The pro-life motion was supported by 51 of the chamber's 55 Republicans (93%), but by only six of the 45 members of the Democratic caucus (13%).

"The Senate Democratic leadership once again blocked bipartisan legislation that would keep our nation's children safe from exploitation," Frist said in a statement released after the vote.

Nancy Keenan, president of NARAL, issued a press release attacking the House and Senate Republican leadership for pushing the bill, which she said "shows that anti-choice congressional leadership is out of step with Americans' priorities."

Of the 14 Democrats who had initially voted in favor of S. 403 on July 25, eight flipped and voted to kill the parental notification requirement on September 29. They were Ken Salazar (Co.), Tom Carper (De.), Bill Nelson (Fl.), Daniel Inouye (Hi.), Evan Bayh (In.), Kent Conrad and Byron Dorgan (both ND), and Herb Kohl (Wi.).

The six Democrats who voted in favor of the bill on both occasions were Mark Pryor (Ar.), Ben Nelson (Ne.), Mary Landrieu (La.), Harry Reid (Nv.), Tim Johnson (SD), and Robert Byrd (WV). The four Republicans who opposed the bill on both occasions were Lincoln Chafee (RI), Susan Collins and Olympia Snowe (both Maine), and Arlen Specter (Pa.).

"It is remarkable that only six out of 45 Senate Democrats voted to require a parent to be notified before an abortion is performed on a young daughter in some other state," commented NRLC Legislative Director Douglas Johnson, who noted that the bill allowed exceptions for cases involving abuse, medical emergencies, and judicial waivers of notification. "We commend Majority Leader Bill Frist for fighting to the end to free this legislation from the grip of a Senate minority, a minority that has preserved the ability of profiteering abortionists to keep parents in the dark."

Senator Rick Santorum of Pennsylvania, the third-ranking Republican senator, who had pushed strongly for enactment of the bill, said afterwards, "The passage of this common sense legislation would have been particularly important to Pennsylvania because most of Pennsylvania's surrounding states have weaker parental involvement laws. ... It is unfortunate that the Democrats stood in the way of enacting this vitally important legislation."

The chief sponsors of the legislation are Sen. John Ensign (R-Nv.) and Congresswoman Ileana Ros-Lehtinen (R-Fl.).

The bill provided that violators could be sued by a minor's parents, or subject to federal criminal misdemeanor penalties of up to one year of incarceration and up to a $100,000 fine.

The NRLC website contains a great deal of additional information on this subject, including a letter from NRLC to the Senate about the bill, and summaries of state parental notification and consent laws. Go to www.nrlc.org/federal/ccpa/index.html.