Court weighs girls' access to abortion

Pro-choice activists disagree. "The big issue for them is continuing to restrict a woman's ability to make decisions about her own reproductive health; it is not about parental rights," says Maria Vullo, a New York lawyer who filed a brief on behalf of the National Coalition Against Domestic Violence.

The New Hampshire law does not mandate parental notification in every instance. But rather than a broad health exception, the law says a physician can authorize a notification bypass only if he or she certifies that an abortion is needed to prevent the girl's death. In addition, a pregnant teen can ask a state judge for authorization not to tell a parent if the judge determines that she is mature and capable of giving informed consent, or that obtaining an abortion without telling a parent would be in the minor's best interests.

The judicial bypass process could take up to two weeks, a delay opponents say endangers pregnant teens. "In an emergency, a woman needs to go to the hospital, not a courthouse," writes Jennifer Dalven in her brief to the court. Ms. Dalven, a lawyer with the American Civil Liberties Union, is arguing the case on behalf of Planned Parenthood. "Requiring a minor to delay appropriate care until she can secure a court order ... is not only unconstitutional, it is inhumane," she writes.

New Hampshire Attorney General Kelly Ayotte says the notification law does not create a substantial obstacle to a woman's right to an abortion. "The act provides pregnant minors with the benefit of parental guidance and assistance in exercising what is undoubtedly a difficult choice," the attorney general writes in her brief. A parent can help provide essential medical history information to the physician, she adds.

In addition to the health-exception issue, the high court will consider a second, equally significant question. The justices agreed to examine whether the appeals panel used the proper test when it struck down the entire New Hampshire statute as unconstitutional.

Ms. Ayotte and US Solicitor General Paul Clement are arguing that abortion laws should be subject to the same test that courts use to judge the constitutionality of all other statutes. To prevail in striking down a law in its entirety, those challenging it must prove that the law is invalid in all its applications, not just some applications.

The federal judge and appeals court panel that struck down the New Hampshire statute did not use that standard. Rather, they read O'Connor's "undue burden" standard as creating a constitutional bar to laws that substantially hinder a woman's right to obtain an abortion.

If a majority of justices embrace the more rigorous standard, it would be significantly harder for abortion-rights activists to immediately challenge abortion restrictions in court. In many cases they would have to wait until a pregnant woman was harmed in some concrete way by a restriction. Even then, only a portion of the statute might be struck down, not the entire abortion law.

How the court rules in this area will have a direct effect on pending legal challenges to a 2003 federal law banning so-called partial-birth abortions. Like lawmakers in New Hampshire, Congress excluded a health exception from the partial-birth abortion law.

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