Wednesday, January 18, 2006
WASHINGTON - The Supreme Court gave New Hampshire a chance to salvage its restrictions on abortion Wednesday, sidestepping for now an emotional subject that is likely to be revisited when a new justice joins the court.
New Hampshire's victory may be short-lived because the justices ordered a lower court to consider how to fix problems with the 2003 law requiring a parent to be told before a minor daughter ends her pregnancy.
The 9-0 decision reaffirmed that states can require parental involvement in abortion decisions and that state restrictions must have an exception to protect the mother's health. It also gave states new ammunition in defending restrictions on the procedure.
Justice wrote the decision, most likely the final one of her 24-year career. O'Connor, a key swing voter at the court on abortion rights, capital punishment and other issues, is retiring and will step down soon if the Senate confirms nominee Samuel Alito.
The ruling broke little new ground. However, justices said that lower courts in addressing flaws in abortion laws do not have to take the "most blunt remedy," striking down an entire law. Instead, the justices said that other "modest" options are available.
"In the case that is before us ... the lower courts need not have invalidated the law wholesale," O'Connor wrote. "Only a few applications of New Hampshire's parental notification statute would present a constitutional problem."
New Hampshire is one of 44 states that require parental notice or permission before abortions on minors. The law, which says abortion providers must notify at least one parent 48 hours before performing an abortion on a minor, had been challenged by abortion clinics.
The Supreme Court agreed that the state law could make it too hard for some minors to get an abortion, because there is no special accommodation for someone who has a medical emergency.
Minnesota, Missouri, and Wyoming have abortion laws with a similar problem, O'Connor said.
The case returns to the 1st U.S. Circuit Court of Appeals in Boston, which had ruled that the law was unconstitutional.
Civil rights groups predicted that the appeals court would again strike down the law.
"It tells politicians that they must include protections for women's health and safety when they pass abortion laws," said Jennifer Dalven, an attorney with the .
Douglas Kmiec, a constitutional law professor at Pepperdine University, said "the state interest in limiting abortion received something significant" in the ruling. He predicted that courts will be less likely to block entire abortion laws in the future.
New Chief Justice John Roberts had recommended the narrow resolution when the court heard arguments on Nov. 30. As the court's leader, he assigned the opinion to O'Connor to write.
"We do not revisit our abortion precedents today," O'Connor wrote in the opening of the decision, the court's first abortion ruling since 2000.
In that 2000 case, O'Connor was the fifth vote to throw out a Nebraska law banning a type of late-term abortion, because the law did not have an exception to protect the mother's health.
David Garrow, a Supreme Court historian at Cambridge University, said he was surprised the court "would choose to resolve this case in a way that may unintentionally have the effect of increasing the amount of future abortion litigation."
O'Connor's departure could leave the court deadlocked on how far states can go in limiting abortion, although there are five other justices who would vote to uphold .
Alito was questioned extensively last week during his Senate confirmation hearing about his views on abortion, including the 1973 Roe v. Wade ruling that declared abortion a fundamental constitutional right. He steadfastly refused to agree with assertions by Democrats that Roe v. Wade was "settled law."
Another major case awaiting justices is the Bush administration's appeal of a lower court ruling that struck down a federal ban on a late-term procedure that critics call "partial birth" abortion. The federal law has no health exception.
The case Wednesday was Ayotte v. , 04-1144. Attorney General Kelly Ayotte, left, for whom the case was named, discusses from her office in Concord, N.H., Wednesday, Jan. 18, 2006, the U.S. Supreme Court ruling on the New Hampshire abortion notification law. (AP Photo/Jim Cole)
Source: AP-Yahoo News.
Dave Haigler, Abilene, Texas
lawfirm webpage: www.haigler.info
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