Justices hear two abortion cases

Neither proceeding threatened any fundamental change in the right to abortion.
DALLAS MORNING NEWS
WASHINGTON -- The first abortion cases of the John Roberts era made their way to the Supreme Court on Wednesday, and the chief justice appeared ready to guide both back to where they came from.
In one widely anticipated case, the chief justice all but asked his colleagues to allow the New Hampshire Legislature to broaden an exception in the state's parental notification law to deal with emergency health concerns.
And in the other case -- a 20-year old racketeering proceeding involving abortion protesters -- he appeared as bewildered as the other justices that the case still existed at all.
Neither of the proceedings threatened any fundamental change in the right to abortion, despite the hopes and fears of the handful of protesters from both sides of the issue who gathered in clusters on the marble steps outside the court.
Notification
The New Hampshire statute involves very strict parental notification requirements aimed at minors having abortions. At the risk of criminal penalties, doctors are required to notify at least one parent of any minor girl considering an abortion at least 48 hours before the procedure is done.
In 2003, the U.S. 1st Circuit Court of Appeals declared the entire New Hampshire law unconstitutional because its provisions for handling medical emergencies were too narrowly restricted to matters of life and death.
In previous decisions, the Supreme Court has ruled that abortion restrictions should not infringe on "health-related" decisions, some of which -- though not life-threatening -- can be serious. Abortion opponents, however, have resisted broad health exemptions, seeing them as loopholes in such laws.
New Hampshire is among 43 states with some form of parental-notification or parental-consent abortion law.
New Hampshire Attorney General Kelly Ayotte told justices that state law, in her opinion, would protect any doctor forced by circumstance to conduct health-related abortions on a minor with prior approval by a judge.
"If given the opportunity, my office would be prepared to issue an opinion [to that effect]," Ayotte said.
"But -- your opinion -- that's the real problem here; [it's] the doctor who's on the line," Justice Ruth Bader Ginsburg said.
A nudge from the chief justice, however, moved the argument away from the necessity of a broader health exception toward the best way of making changes to save the substance of the New Hampshire law.
"Why should you be able to challenge the act as a whole if your objection is so narrowly focused?" Chief Justice Roberts asked Jennifer Dalven, who argued for Planned Parenthood of Northern New England and a group of abortion rights advocates who have, to this point, successfully derailed the law.
Suggestion
He suggested, repeatedly, to both sides that New Hampshire physicians file a "pre-enforcement challenge"-- a kind of courthouse inquiry -- into the reporting requirements that bother them. The inquiry, he said, might make it possible to cull what is illegal or unacceptable without scrapping the entire law.
Justice David H. Souter, a former attorney general in New Hampshire, said he was skeptical of any compromise on something the legislature had already rejected.
"They [the New Hampshire legislators] deliberately said the only statute we want is one without a health exception," Souter said. Even if adequate provisions were made, he said, they would fly in the face of that state's "legislative intent."
In Wednesday's other argument, the entire court seemed to have little patience for the third appearance of two cases, originally filed in 1986. In those cases, the National Organization for Women was asking the court, in effect, to reconsider a jury verdict for racketeering the group won against abortion protesters.
The verdict was thrown out by the high court two years ago, but reinstated by an appeals court on the basis of information not specifically mentioned in the Supreme Court opinion. Several justices cautioned NOW's attorney, Erwin Chemerinsky, not to read too much into the specifics missing from the earlier opinion.