High court wrestles with parental notification law for abortion

WASHINGTON -- The Supreme Court wrestled Wednesday with a New Hampshire law that requires a parent to be told before a daughter ends her pregnancy, with no hint the justices were ready for a dramatic retreat on abortion rights under their new chief.

The court is dealing with its first abortion case in five years, as well as the first in the brief tenure of Chief Justice John Roberts.

The case does not challenge the 1973 Roe v. Wade ruling, and the justices seemed to be seeking a compromise that would avoid breaking new ground.

Several said the law was flawed, because it requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth's life.

The court appeared unhappy with lower court decisions that blocked the law from being enforced at all.

"This case doesn't involve an emergency situation," Roberts said.

Protesters demonstrated outside -- singing, chanting and praying -- and the argument inside the court was at times contentious, too, with justices talking over each other and over the lawyers.

New Hampshire Attorney General Kelly Ayotte struggled to field sharp questions on why state lawmakers had made an exception to allow abortions when a mother's life -- but not her health -- was in danger. The court has held that abortion restrictions should include a health exception.

Doctors would fear being prosecuted or sued if they performed an abortion on a severely sick minor who did not want to notify a parent, several justices said.

"That's the real problem here for the doctor who's on the line," said Justice Ruth Bader Ginsburg.

The law allows a judge to waive the requirement, and Justice Antonin Scalia said: "It takes 30 seconds to place a phone call."

"It seems to me that the bypass procedure can go a long way toward saving this statute," Justice Anthony M. Kennedy said.

Tracking down a judge and making the case for a waiver could take too long, said Jennifer Dalven, attorney for Planned Parenthood of Northern New England which sued before the law took effect.

"For women in some emergencies, every minute is critical. Every minute puts them at risk of losing their future fertility and of major organ damage," she said. "I don't think saving a statue is worth putting a teen's health at risk."

If Alito is confirmed by the Senate early next year his vote could be needed to break a tie in the case, although the justices may find a consensus in resolving the appeal without a landmark decision. For example, they could tell the 1st U.S. Circuit Court of Appeals in Boston to review the matter again and issue a more limited ruling.

A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions than O'Connor.

When Alito worked for the Reagan administration, he criticized Roe v. Wade. In a memo released by the National Archives on Wednesday, Alito said that because a reversal of Roe was unlikely, the Reagan administration should instead try to persuade justices to accept state limits on abortions.

The New Hampshire case is being closely watched by states that require minors to tell a parent or get permission before having an abortion. The justices were told that 24 states mandate a parent's approval and 19, including New Hampshire, demand parental notice.

The Bush administration is backing New Hampshire, and Solicitor General Paul Clement told the court that "it's literally a one in a thousand possibility that there's going to be an emergency" and problem under the law.

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 the justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome. That law did not have an exception to protect the mother's health.

The case was one of two dealing with abortion at the court on Wednesday. In a second, the justices considered whether federal extortion and racketeering laws can be used to sue abortion clinic demonstrators.

The high court agreed to allow news organizations to air an audio recording of the court's argument in the New Hampshire case, giving the public away from the court 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.

The 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.

O'Connor was not particularly active in the hour-long argument, and her vote will count only if she is still on the court when the ruling is made. She suggested there might be a way to deal with the lack of a health exception, without blocking the law entirely.

The case is Ayotte v. Planned Parenthood, 04-1144.