Wednesday the US Supreme Court takes up a case that could change the abortion battle in a fundamental way, potentially allowing state lawmakers across the nation to enact more-restrictive regulations on a woman's right to choose abortion.
The case, Ayotte v. Planned Parenthood of Northern New England, examines the constitutionality of a New Hampshire law requiring teenage girls to notify at least one parent before obtaining abortions. It carries broad implications for reproductive rights nationwide, and could be a turning point in a debate that has divided the country for more than three decades.
Instead of seeking to overturn the landmark decision in Roe v. Wade, the case marks a change in tactics by antiabortion forces trying to narrow and constrain the reach of the 1973 abortion precedent.
In addition, it highlights the significance of the potential replacement on the high court of retiring Justice Sandra Day O'Connor, a supporter of abortion rights, with nominee Samuel Alito, who is believed to personally oppose abortion. If a majority of justices vote to uphold the New Hampshire law, their decision could lay the groundwork for a major shift in the constitutional framework erected by Justice O'Connor upholding women's reproductive rights.
Timing could be everything. O'Connor will participate in Wednesday's oral argument, but unless she is still on the sharply divided court when the decision is announced, her vote won't count. If Judge Alito is confirmed in the meantime, the case might have to be reargued next year. Should that happen, O'Connor's vote would be replaced by that of Alito.
While the case does not threaten the central holding of Roe v. Wade, analysts are watching to see if the court's conservatives - and new Chief Justice John Roberts - are willing to use the New Hampshire case to topple a pillar of O'Connor's abortion jurisprudence.
In decisions since 1992, O'Connor has insisted that the Constitution requires invalidation of state laws that create an "undue burden" on a woman's right to an abortion when the procedure is necessary to preserve her health.
Lawmakers in New Hampshire deliberately excluded a broad health exception from their parental-notification law. Abortion-rights groups say the exclusion renders the law unconstitutional. A federal judge and a federal appeals court panel agreed.
Antiabortion activists counter that the New Hampshire law strikes the proper balance between permitting abortions and encouraging alternatives.
They say the New Hampshire issue is different than other abortion fights. It is not about an adult woman's fundamental right to choose for herself, they say. Rather it is a balance between a pregnant teen's constitutional right to choose and the constitutional right of parents to raise their children without government interference in highly personal matters dealing with medical procedures, healthcare, and important life choices.
"The idea that we should have the government come between a child and her parents is a violation of everything we believe in this country," says Kelly Shackelford of the Liberty Legal Institute in Plano, Texas.
If juveniles need parental approval to open a bank account, get a tattoo, or even use the services of a tanning salon, parents certainly have a right to be informed that their child is about to undergo an abortion, pro-life activists say.
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.