The new case is an appeal by the State of New Hampshire of a federal appeals court ruling that struck down a parental-notification requirement for minors seeking abortions.
The Supreme Court has dealt with parental-notice statutes for many years and has upheld those that contain safeguards for minors, including the option of bypassing the notice requirement by going before a judge. This case does not require the court to revisit those precedents.
Rather, it presents two questions that the court has not previously addressed in the context of parental-notice laws: provisions for health concerns and what kind of challenges should be allowed to abortion laws that have not yet taken effect.
The court's answers could be important for its consideration of future abortion cases, including ones challenging the recent federal law that prohibits the procedure that abortion opponents call partial-birth abortion. That law has been declared unconstitutional in federal district courts around the country, and appeals by the Bush administration are now pending in three federal appeals courts.
Those cases are likely to reach the Supreme Court in its next term, increasing the visibility and volatility of the abortion issue in what may be a transitional time for the court in view of the likely retirement of Chief Justice William H. Rehnquist. He has, however, been a consistent dissenter from the court's decisions upholding the right to abortion, so his replacement would not be likely to shift the balance on the court.
One question facing the court in the current case is whether parental-notice laws, or by extension, any abortion regulations, must explicitly provide exceptions for those women whose continued pregnancy is a threat to their health. Beginning with Roe v. Wade in 1973, and including the court's most recent decision, which invalidated Nebraska's partial-birth abortion law in 2000, the court has held that the government may not constitutionally ban an abortion necessary to preserve a pregnant woman's health.
The New Hampshire parental-notice law, enacted in 2003, provides an exception for minors whose pregnancy threatens their life, but does not include a more general health exception. It was in part on this basis that the United States Court of Appeals for the First Circuit, which sits in Boston, declared the law unconstitutional last November.
The other question in the case is what standard courts should use in evaluating a judicial challenge to abortion laws that like the New Hampshire law have not yet taken effect. Typically, as in this case, abortion rights advocates challenge restrictions by seeking injunctions as soon as a new law is enacted.
In striking down the New Hampshire law, the federal appeals court applied a standard derived from the Supreme Court's 1992 decision that reaffirmed the right to abortion.
That decision, Planned Parenthood v. Casey, struck down a Pennsylvania requirement that married women notify their husbands before obtaining an abortion. The majority found that while many married women do consult with their husbands, and therefore would not be affected by the requirement, the law did place an "undue burden" on the category of married women who were in abusive relationships or who could not notify their husbands without adverse consequences.
Even if that category represented only 1 percent of all women seeking abortions, the majority concluded, it still created a substantial obstacle for a "large fraction" of those women for whom the regulation was directly relevant, and was therefore unconstitutional.
The First Circuit applied that analysis in the New Hampshire case to rule that even if most pregnant teenagers do not have health problems requiring a termination of pregnancy, the law's requirements, which include a 48-hour waiting period after parental notice, pose an undue burden on a large fraction of those who suffer from such conditions as eclampsia or premature membrane rupture. Consequently, the law was unconstitutional, the appeals court ruled.
In the state's appeal, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, Attorney General Kelly A. Ayotte is arguing that the court should have applied a different test, under which courts are not to issue injunctions against laws that have not yet taken effect unless "no set of circumstances exists under which the act would be valid."
This standard is derived from a 1987 Supreme Court decision in a criminal case, United States v. Salerno, which was not related to abortion. The court's own precedents are unclear on this standard's continued application to abortion cases. The First Circuit concluded that the court's 1992 Casey decision overruled the Salerno test. Other federal appeals courts have found otherwise.
On the health question, the state is arguing that a teenager with a health problem can go before a judge, who can take health into account even though the statute itself does not mention it. The First Circuit found this argument inadequate, noting that the judicial process, even expedited as the statute requires, can take up to two weeks. Other appeals courts have recently struck down parental-notice laws in Colorado and Idaho because the laws did not contain a health exception.