Justices to hear arguments on abortion notification law

The Supreme Court will take on its first abortion case in five years, hearing arguments Wednesday on a New Hampshire law that says parents must be notified before a minor obtains an abortion, even in most cases of medical emergency.

 Besides being a possible bellwether for how abortion cases may fare under the changing Supreme Court, the case could be significant in determining how much latitude states have in setting limits on abortion and when such limits may be legally challenged. 



 Champions of the measure, which has been overturned by two lower courts, say it provides parents with vital access to decisions about a daughter's health and well-being. Opponents argue that it fails to include an adequate health exception for the woman seeking the abortion, and they describe it as an effort by the Bush administration and conservatives to chip away at the protections of Roe vs. Wade, the 1973 court ruling that guaranteed a woman's right to an abortion. 



 The New Hampshire law requires a physician to wait 48 hours after the notification of a parent or guardian before performing an abortion on a girl who is younger than 18. The only exception provided in the statute is if the girl's death is imminent. The law includes a judicial bypass, which gives a judge the right to determine if a minor is "mature and capable of giving informed consent to the proposed abortion." Under the law, a judge must rule within seven days of when a petition is filed on behalf of the girl. 



 But State Rep. Terie Norelli, a New Hampshire Democrat who opposes the restrictions, said it's foolish to force a pregnant girl whose health is at risk to potentially wait a week before an abortion can be performed. 



 "I do not believe that there is anyone who would prefer that a judge make a health care decision in an emergency medical situation," Norelli said. 



 Under the New Hampshire law, a doctor who performs an abortion without following the notification procedure could be charged with a misdemeanor, which is punishable by up to one year in prison, and subject to a civil action by the person wrongfully denied notification. 



 Opponents of the law believe that if it is upheld, it would open the door for states to pass laws also denying adult women abortions in cases of a medical emergency. 



 "Because of prior precedent they may not overturn Roe, but what this case would do is eviscerate Roe, it would leave Roe standing but with no legs," said Dawn Touzin, public affairs director of Planned Parenthood of Northern New England, a defendant in the lawsuit. 



 Pro-choice advocates believe the health exception is a crucial element of any notification law since it allows a doctor to perform an abortion in a number of emergency circumstances that might prove harmful, if not fatal, to a girl's health. 



 Meanwhile, the legal arguments being made in support of the New Hampshire law strike particular fear among the law's opponents. 



 With backing from the Bush administration, which filed a "friend of the court" brief in the case, New Hampshire Attorney General Kelly A. Ayotte will argue for the law on two points: that other emergency health protections are already in place, making the health exception unnecessary; and a more technical legal assertion -- that only individuals harmed by the law should be able to challenge it. If the justices accept the latter, it could prevent court challenges to abortion limits until laws allowing them are already on the books. 



 "What's going on in this case is the attorney general and the Bush administration would eliminate that ability to challenge laws before any harm occurs," said Brigitte Amiri, staff attorney for the American Civil Liberties Union, which is arguing for the defense. "We'd have to wait until young women and teenagers were actually harmed before going to court." 



 Ayotte argues that New Hampshire already has a statute in place called a "competing harm's" defense, which would protect a doctor who performs a necessary emergency abortion without notifying a child's parent. 



 "We're not taking the position that you should not protect women's health," Ayotte said. "We're just saying that you don't necessarily need an express provision." 



 On its way to becoming law, the measure was nearly blocked at every juncture and only squeaked through the state Senate in 2003 by a one-vote margin. It passed the House 187-181. 



 In December 2003, a U.S. District Court judge ruled the entire law unconstitutional because it lacked a health exception and issued an injunction preventing it from going into effect. 



 The U.S. Court of Appeals for the First Circuit upheld the lower court ruling in November 2004. 



 Questions loom about how the court will rule on abortion-related matters under the leadership of Chief Justice John Roberts. 



 Outgoing Justice Sandra Day O'Connor -- a key swing vote on reproductive health matters -- will hear the case, but she could leave the court before the case is decided. 



 Without hearing the case, her replacement will be ineligible to vote on it, meaning the court could produce a tie, effectively upholding the lower court ruling. But the court might also choose to rehear the case in front of all nine members. 







 Distributed by the Los Angeles Times-Washington Post News Service.