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
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
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
�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 http://www.healthlawyers.org/News Center/Health Lawyers Weekly&CONTENTFILEID=7108&TEMPLATE=/MembersOnly.cfm