Abortion reargued
THE FIRST abortion case since 2000 heard by the Supreme Court this week is not primarily about requiring minors to notify their parents before they can obtain an abortion; 43 states already have parental notification or consent laws. What makes the New Hampshire case so controversial is that it does not include an exception for the health of the mother, a violation of requirements in the 1973 decision Roe v Wade. And, of course, what also makes this case controversial are the shifting dynamics on the court.
The New Hampshire law, passed by one vote in 2003, requires a doctor to give parents of a minor 48 hours' notice before performing an abortion. Only ''imminent death" is listed as an exception.
Supporters of the law point to a provision allowing a judge to intervene in a medical emergency -- Justice Antonin Scalia scoffed that it takes but ''thirty seconds" to place a telephone call -- but actual experience with judicial bypass provisions has proven far more time-consuming than that. A pregnant teenager facing a medical crisis needs a doctor, not a judge.
The Supreme Court itself seemed aware of the heightened stakes; on Wednesday it took the rare, and laudatory, step of making audiotapes of the arguments available to the public on the day they were heard. All ears were on the new chief justice, John Roberts, whose views on abortion were difficult to divine exactly during his confirmation hearings.
From the bench, Roberts seemed intent on deciding a crucial technicality: whether abortion restrictions such as those in the New Hampshire law can be challenged before they have taken effect. Since the law has been stayed pending appeal, no teenager can yet claim to have been harmed by it. A decision to throw back the New Hampshire case until a victim is found could have profound implications for other abortion restrictions.
Another crucial question is whether the entire law can be struck down as unconstitutional when only a fraction of pregnant teenagers would need the health exemption. The Bush administration argued Wednesday that ''one in a thousand" cases where a minor's health could be jeopardized was not enough to invalidate the law. Such reasoning recalls Appeals Court Judge Samuel Alito's ruling in the abortion case Planned Parenthood v. Casey, in which he said requiring spousal notification would be an undue burden for only a tiny fraction of women. In overturning Alito's ruling, the Supreme Court rightly said that ''the proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom it is irrelevant." The same is true here.
Alito is poised to replace Sandra Day O'Connor as the swing vote on the court. His easy dismissal of individual rights just because they are held by a minority is a danger that reaches far beyond abortion.
