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U.S. Supreme Court Seeks Narrower Remedy Than Striking New Hampshire Parental Notification Abortion Law Wholesale


U.S. Supreme Court Seeks Narrower Remedy Than Striking New Hampshire Parental Notification Abortion Law Wholesale

A New Hampshire law that requires abortion providers to notify a pregnant minor�s parent before performing the procedure should not have been invalidated in its entirety for lack of a health exception if the courts can craft a more limited remedy that addresses only the statute�s constitutional flaws, the U.S. Supreme Court ruled in a unanimous decision January 18.

Vacating a decision by the First Circuit that struck down the law, Justice Sandra Day O�Conner, writing for the Court, said courts need not always choose �the most blunt remedy available��in this case enjoining the statute�s enforcement entirely�where narrower relief is possible.

�Only a few applications of New Hampshire�s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute�s unconstitutional application,� O�Conner wrote.

In June 2003, the New Hampshire legislature passed the Parental Notification Prior to Abortion Act (Act). The Act prohibits physicians from performing an abortion on a pregnant minor until forty-eight hours after giving notice to her parent or guardian. The Act includes a judicial bypass provision as well as an exception where the abortion is necessary to prevent the minor�s death and time is of the essence.

Abortion providers brought a � 1983 action in the U.S. District Court for the District of New Hampshire, arguing the act was unconstitutional because it failed to explicitly allow a physician to perform an abortion in a medical emergency.

The court "found unconstitutional both (1) the lack of an explicit exception to protect the health of the pregnant minor, and (2) the narrowness of the Act's exception for abortions necessary to prevent the minor's death� and enjoined its enforcement. On appeal, the First Circuit affirmed, concluding the Act was unconstitutional in the absence of an explicit health exception.

The Court declined to revisit its prior abortion rulings, other than to note both that it has long upheld parental involvement statutes like the Act at issue and that a state may not restrict access to abortions necessary to preserve the life or health of the mother.

The Court also agreed that the First Circuit�s conclusion was �understandable� given the Stenberg v. Carhart, 530 U.S. 916 (2000), decision, where the Court struck down in its entirety a Nebraska law that prohibited so-called �partial birth abortions� for not including an exception to preserve the mother�s health.

�But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn,� the opinion explained. According to the Court, the state argued that invalidating the statute wholesale was too drastic a remedy, and the providers challenging the law conceded that �carefully crafted injunctive relief may resolve the case.�

A threshold issue on remand is whether reforming the statute would comport with legislative intent, the Court said. While the state pointed to the Act�s severability clause as evidence that it would, the providers argued that the legislators would �prefer[] no statute� to one changed from its original form.

�Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statue in toto should obviate any concern about the Act�s life exception,� the opinion concluded.

Ayotte v. Planned Parenthood of Northern New England, No. 04-1144 (U.S. Jan. 18, 2006). To read the decision, go to Center/Health Lawyers Weekly&CONTENTFILEID=7108&TEMPLATE=/MembersOnly.cfm

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