Supreme Court Weighing Parental Notification

Wednesday, November 30, 2005

It's that time again when activists on both sides clash outside the Supreme Court which is currently debating a New Hampshire abortion law requiring parental notification. It's the first case on abortion, Ayotte v. Planned Parenthood, 04-1144, the court has heard in five years.

New Chief Justice John Roberts seemed sympathetic to the state, but other justices said they were troubled that the law does not make an exception for minors who have a medical emergency.

The court has said before that abortion restrictions should include a health exception. O'Connor, along with Anthony Kennedy, Stephen Breyer and Ruth Bader Ginsburg, zeroed in on how doctors would avoid being prosecuted or sued if they performed an abortion if a severely sick minor did not want to notify a parent and a judge was unavailable to provide the necessary approval.

"That's the real problem here for the doctor who's on the line," Ginsburg said.

Justice Antonin Scalia, however, said: "It takes 30 seconds to place a phone call" to a judge.

If Alito is confirmed by the Senate early next year his vote could be needed to break a tie in the case, although justices may find a consensus in resolving the appeal without a landmark decision. For example, justices could tell the 1st U.S. Circuit Court of Appeals in Boston to review the matter again.

The court is considering whether the 2003 New Hampshire law puts an "undue burden" on a woman in choosing to end a pregnancy. O'Connor is an architect of the undue burden standard, and was the deciding vote in the last abortion case five years ago, when justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome.
With Alito likely to replace O'Connor, it is quite possible that the "undue burden" test will become insignificant if he joins the conservative wing as expected. I haven't heard the audio tapes yet but according to the press release it appears Chief Justice Roberts will vote similarly to the man whom he replaced and will be part of the 5-4 minority against the dismantling of the New Hampshire law.

The big question here is Anthony Kennedy. When it comes to abortion we know he accepts it as a constitutional right but often (though not all the time) votes to uphold restrictions.

My prediction: Planned Parenthood wins.

Majority: Stevens, Ginsburg, Breyer, Souter, Kennedy (swing)
Minority: Scalia, Thomas, Roberts, Alito