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Supreme Opportunity
Will the Court fix its abortion mess?


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An overwhelming majority of Americans (70-80 percent) support notifying parents before an abortion on a minor girl, and for good reason. Minors are usually too immature to assess the safety of abortion clinics, the alternatives to abortion, or to recall their own medical history. In addition, they need the guidance of parents to assess the risks of abortion–like increased risk of placenta previa and premature births in future pregnancies, increased alcohol and drug abuse after abortion, or the increased risk of suicide after abortion.

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And parental notice is necessary to enable parents to care for their daughter afterwards. If parents don’t know what their daughter has been through, how can they check for any signs of extensive bleeding, fever, infection, or psychological distress? Even if there’s a life-threatening medical emergency, parents need to be notified, if only after the emergency subsides.

For these reasons, the Supreme Court has repeatedly approved parental-notice laws–at least rhetorically–since 1981. While half the states have parental-notice or consent laws, half have no laws in place, including New Hampshire. Most laws are passed only to be bottled up for years in litigation filed by Planned Parenthood or abortion clinics.

Today, the Supreme Court will hear arguments in Ayotte v. Planned Parenthood about the validity of the New Hampshire parental notice of abortion law, which a federal appeals-court decision struck down last year.

There are two major questions in this case. First, will the Court uphold the law and allow parents to have notification in New Hampshire? Second, will the Court recognize the mess it has created with its vague and contradictory decisions and clarify the standards for federal courts to assess critical requirements like parental notice?

New Hampshire patterned its law after the Minnesota parental-notice law which has been in effect for nearly 20 years with a positive impact on reducing adolescent pregnancy, birth, and abortion rates. The Supreme Court upheld the Minnesota law in 1990.

The New Hampshire law (copying the Minnesota law) has a narrowly drafted exception for real, life-threatening medical emergencies. The general rule for medical treatment is that parents must give consent (not just notice) before a doctor can treat any minor child, unless there is a life-threatening medical emergency. While some state legislatures have adopted exceptions to this general rule over the past decades–for prenatal care, sexually transmitted disease, and drug addiction–the exceptions are relatively narrow.

Planned Parenthood challenged the New Hampshire law because Planned Parenthood insists that parental-notice and consent laws in every state must have a “health” exception rather than a “medical emergency” exception.

But the Supreme Court has created its own unique and unlimited definition of “health” in abortion law, defining “health” as “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient.” “Health” means emotional well-being without limits. Thus, a “health” exception in abortion law is virtually the opposite of a real “medical emergency.”

Any potential emotional reservation a minor girl might have about a pregnancy (including pressure to have the abortion from her 22-year-old “boyfriend”) would be a “health” reason for the abortion without parental notice. Since this unlimited “health exception” would swallow the requirement of parental notice, the Supreme Court should reject the “health” exception and uphold the New Hampshire medical emergency exception.

Beyond the specifics of the New Hampshire law is the larger question of the mess the Supreme Court has created with its vague and contradictory decisions over the past 32 years. Thirteen years ago, in its 1992 Casey decision, the Supreme Court said that it was clarifying its judicial standards for reviewing state legislation (what lawyers call the “standard of review”) and wanted federal courts to be more deferential toward state regulations of abortion.

Exactly the opposite has happened. Substantial confusion abounds in the federal courts over the standards that the Supreme Court issued in Casey. The courts apply different standards–harsh, intermediate, and deferential–to assess the validity of state legislation. An increasing number of federal courts have expressed confusion as to whether they should apply harsh, intermediate, or deferential standards to assess state abortion legislation.

Some federal judges have been quite blunt in expressing their frustration over this confusion. As the Seventh Circuit appeals court wrote in 2002: “When the Justices themselves disregard rather than overrule a decision…they put courts of appeals in a pickle.” In 2003, the Sixth Circuit appeals court wrote: “We cannot ignore the difficulty of legislating against a backdrop of constitutional standards that invite state regulation on one hand while barring it with the other.”

The most recent expression of growing frustration came from federal judge Sandra Beckwith this past September. In reviewing Ohio’s parental consent for abortion law–which has been bottled up in court for seven and a half years–she emphasized that “applying the standards…is not an easy task in abortion cases…because…it becomes evident that it is difficult or impossible to apply predictably the legal standards that do exist.” Noting that the Supreme Court was scheduled to hear the Ayotte case, Judge Beckwith practically begged the Court to fix the mess: “At a minimum…[this] Court hopes that the Ayotte Court will take the opportunity to clarify the Casey undue burden standard.” These are just three of several examples.

The Court could–and may–uphold the New Hampshire parental-notice law without addressing or resolving the confusion that it has created. The Court is long overdue to correct this situation, but, since the Court ignored the confusion in 2000 in its Stenberg decision, there’s no guarantee the Court will fix the mess in Ayotte.

Clarke D. Forsythe is attorney and director of the Project in Law & Bioethics at Americans United for Life, Chicago.



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