High Court Hears Abortion Case
The Supreme Court is considering its first abortion rights case under the leadership of Chief Justice John Roberts, with an unpredictable outcome because of the court's changing makeup.
The stakes are significant in the dispute over a New Hampshire law requiring minors to tell a parent before ending a pregnancy, although the case does not challenge the 1973 Roe v. Wade ruling that said abortion is a fundamental constitutional right.
"The case doesn't go to the core of Roe v. Wade; it doesn't ask or require the justices to determine whether the right to an abortion still is a constitutional right," said CBSNews.com legal analyst Andrew Cohen. "It forces the court instead to look again at limits and restrictions and conditions upon that right."
The outcome is likely to signal where the high court is headed on an issue that has been emotional and divisive among the justices and around the country.
"Court dynamics are also in play," reports CBS News correspondent Wyatt Andrews. "The case gets argued in front of Justice Sandra Day O'Connor, one of the architects of the woman's health exception. All sides will be keenly watching to see if O'Connor helps decide this case before the Senate decides if Judge Samuel Alito replaces her."
Abortion was a prominent subject in Roberts' confirmation hearings and has emerged as a major issue in President Bush's nomination of Alito to replace O'Connor, who is retiring. O'Connor has been the swing vote in support of abortion rights.
Abortion cases generally draw large crowds at the Supreme Court, but buzz around Wednesday's argument was particularly frenzied because the court until this fall had no turnover for 11 years.
Abortion rights protesters held signs that said "Save Roe!" while anti-abortion activists sang hymns in front of the court before the argument.
As arguments began, New Hampshire Attorney General Kelly Ayotte urged the court to uphold that state's parental notification law.
Justice David Souter, a New Hampshire native, wasted little time before firing questions at Ayotte about how the state's law deals with situations where a minor's health — but not life — is in danger and she needs an immediate abortion.
Justices Anthony Kennedy and Stephen Breyer zeroed in on how doctors would avoid being prosecuted or sued if they performed an abortion if the minor did not want to notify a parent and a judge was unavailable to provide the necessary approval.
The justices did not seem satisfied when Ayotte said another, existing New Hampshire law would protect the doctor from legal action and that the state's attorney general would set a policy that would shield physicians in such instances.
"How do we know that's the law?" asked Breyer. "There are people of good faith on both sides of this argument" who may disagree about the other law's meaning.
O'Connor, a supporter of Roe v. Wade and the first woman named to the court, is retiring after 24 years and will likely leave the court before the case is decided. A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions.
It is unknown how Roberts or Alito would vote on a rollback of Roe v. Wade.
Meanwhile, the court could use this case to make it extremely difficult for abortion rights groups to challenge restrictions, without dealing with the sticky issue of overturning Roe. At issue is the legal standard for courts in handling lawsuits over abortion laws.
The New Hampshire case is being closely watched by the dozens of states that require minors to tell a parent or get permission before having an abortion.
Justices were told that 24 states mandate a parent's approval and 19 states, including New Hampshire, demand parental notice.
"If the court follows its most recent precedent, and there is little reason to think it won't, New Hampshire's abortion notification law is in trouble because it does not contain an exception eliminating the notification requirement if the young woman's health is in danger," Cohen said. "And if the Court goes in that direction similar laws in dozens of other states will be in jeopardy and will have to be changed."
The court is considering whether the 2003 New Hampshire law puts an "undue burden" on a woman in choosing to end a pregnancy. O'Connor is an architect of the undue burden standard, and was the deciding vote in the last abortion case five years ago, when justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome.
That law, like the one at issue Wednesday, did not have an exception to protect the mother's health. New Hampshire argues that exceptions are permitted when the mother's health is at risk, and that should be enough.
The law requires a parent or guardian be notified when an abortion is planned for someone under 18, followed by a 48-hour waiting period. A judge can waive the requirement.
"I don't think the issue of notification itself is going to cause the justices any problem. I think the main issue for them will be when that notification cannot be required by law -- if, for example, the pregnant woman's life or health is in jeopardy," Cohen said. "So you can easily see a scenario here where the court ultimately gives something to both sides -- affirming the concept of notification but also protecting important exceptions to it."
"In an emergency, a woman needs to go to the hospital not a courthouse," justices were told in a filing by Jennifer Dalven, attorney for Planned Parenthood of Northern New England which challenged the law.
The Supreme Court agreed to allow news organizations to air audio recording of the court's argument immediately after its conclusion, giving the public its first chance to hear the new chief justice on the bench. Cameras are not allowed in the court.
Roberts, 50, replaced Chief Justice William H. Rehnquist, who died in September after a yearlong fight with cancer.
Justices agreed to hear the New Hampshire case before Rehnquist's death — and before O'Connor surprised colleagues with news that she was stepping down.
The case is Ayotte v. Planned Parenthood, 04-1144.