A Breath of Judicial Sanity

"Justices Send Back Parent-Notification Law", sez The Washington Post

The Supreme Court ruled yesterday that federal judges should not have struck down an entire New Hampshire law that requires teenagers to notify their parents before having an abortion and ordered a lower court to come up with a more limited solution that would protect minors' health in emergencies.

The unanimous decision was written by Justice Sandra Day O'Connor and will probably be her final opinion on the high court. The justice, who has cast the decisive vote on abortion cases for more than two decades, is to step down after her successor is confirmed. Next week, the Senate Judiciary Committee is scheduled to consider the nomination of Samuel A. Alito Jr. as her replacement, and his views on abortion could play a pivotal role in the vote.

The New Hampshire law, adopted in 2003, allows an exception to parental notification if a pregnant teenager's life is at risk but does not address whether the procedure may be performed if she faces other non-life-threatening health emergencies. Two federal courts in New England had said that omission makes the law unconstitutional, and it has never been enforced. The state of New Hampshire appealed to the Supreme Court, arguing that the court's precedents do not require an explicit health exception. The justices did not rule on that broad claim but did agree with New Hampshire yesterday "that the lower courts need not have invalidated the law wholesale," as O'Connor put it.

At the same time, O'Connor's opinion emphasized three propositions that, she said, are "established": State parental notification laws are constitutional; the court's precedents hold that states may not restrict access to abortions necessary to protect the life or health of the mother; and, in a very small number of cases, immediate abortion is necessary to avert irreversible health damage. That means, she wrote, that it would be unconstitutional to apply New Hampshire's law to minors facing "significant health risks." But, O'Connor wrote, before lower courts could craft a more narrow remedy -- one that might strike down the law only for this small category of major health emergencies -- they would first have to settle a lingering "dispute as to whether New Hampshire's legislature intended the statute to be susceptible to such a remedy."

All but six states have some form of statute that says girls younger than 18 must involve at least one parent or guardian in the decision to terminate a pregnancy. As required by a 1990 Supreme Court decision, those laws generally allow teenagers to avoid telling a parent if they can convince a judge that they would face abuse or that they are mature enough to make the decision on their own.

The "health clauses" of abortion regulation laws are usually the Lincoln Tunnel of legal loopholes. They've often resulted in the law effectively being gutted in practice. This ruling seems to indicate that the health exception should be based on "significant health risks." That, in itself, is a victory, since it opens the door for future consideration of the health clauses. What's truly important, however, is that SCOTUS refused to invalidate the law wholesale.

Overall, this may be a step in the right direction--to the extent that it's a step at all, rather than a holding pattern until Judge Alito joins the Bench.