Justices refuse to reject N.H. abortion law

WASHINGTON -- The Supreme Court declined yesterday to strike down a New Hampshire law requiring minors to notify a parent before seeking an abortion, ruling that an appeals court should not have nullified the entire law in 2004 simply because it did not contain an exception for cases in which a girl's health was at risk.

In a rare unanimous opinion in an abortion case, the Supreme Court ordered the US Court of Appeals for the First Circuit, based in Boston, to reconsider its ''blunt" ruling that the entire New Hampshire law was unconstitutional. The lower court should look for a more ''modest" way to remedy the law's lack of a health exception, it said.

The court, in its first major abortion case since 2000, steered clear of making changes to underlying abortion law. The court did not reexamine its prior holding that parental involvement laws are constitutional, nor its prior holding that any abortion restriction must contain a health exception. Instead, it simply sent the New Hampshire case back to the lower courts.

''We do not revisit our abortion precedents today, but rather address a question of remedy. . . . We agree with New Hampshire that the lower courts need not have invalidated the law wholesale," wrote Justice Sandra Day O'Connor.

In what may be her final opinion before retiring from the court, O'Connor suggested that the lower court could decide to allow New Hampshire's parental notification law to take effect by declaring that it could not be used to prosecute a doctor who performs an emergency abortion to protect a pregnant minor's health.

New Hampshire's attorney general, Kelly Ayotte, who defended the law in November's Supreme Court argument, praised the court's decision. She said the state would ask the appeals court to allow the law to take effect, except in emergency cases when the minor's health is at risk.

''The court's opinion respects the New Hampshire Legislature's authority to adopt parental notification laws," Ayotte said. ''The court also recognizes, as we argued, that the act must be applied in a manner to protect minors in emergency situations."

Nancy Mosher, president and chief executive officer of Planned Parenthood of Northern New England, the plaintiff in the case, said abortion-rights supporters were heartened that the court did not reverse its prior holding that any abortion restriction must contain an exception to protect a woman's health. ''We are relieved that the court continued to recognize the necessity of protecting women's health and safety when abortion-restriction laws are passed," Mosher said.

The case dates to 2003, when New Hampshire enacted the Parental Notification Prior to Abortion Act. It prohibited doctors from performing an abortion on a girl under 18 until 48 hours after her parent or guardian has received written notice. The law contains three exceptions: If the girl's life is at risk, if a parent has already been notified, or if a judge waives the requirement.

Before the law could take effect, a group of abortion providers, including Planned Parenthood, sued to block the law because it did not protect girls whose health could be affected by delaying the abortion, even if their conditions were not life-threatening. A federal district court declared the law unconstitutional and issued a permanent injunction. In 2004, the appeals court agreed that the entire statute was unconstitutional.

But yesterday the Supreme Court ruled that the lower courts had been too quick to strike down the entire law.

''Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem," O'Connor wrote.

Part of the problem, according to the court, was that the law did not specify whether there are exceptions for the girl's health. Ayotte's interpretation is that the New Hampshire Legislature intended to include such exceptions, even though they were not written in the statute.

But Mosher contends that the lawmakers deliberately left out a health exception because they preferred no law at all to one containing a health waiver. If the lower court agrees with Mosher, it could strike down the entire law again. O'Connor wrote that it would be improper to issue a ruling that construed the law in a way that conflicted with the Legislature's intent.

The Supreme Court ruled in 1973 that the Constitution protects an unwritten right to an abortion, forbidding outright bans. Ever since, the court has been embroiled in litigation over which restrictions are constitutional.

Six of the nine current justices have voted to uphold a constitutional right to an abortion, but activists contend that support for abortion rights is eroding. One of the six justices, Anthony Kennedy, voted in 2000 to uphold a Nebraska ban on late-term abortions even though it did not contain a health exception.

Another justice who supports abortion rights, O'Connor, is retiring. President Bush's nominee to replace her, Judge Samuel A. Alito Jr., wrote in 1985 that ''the Constitution does not protect a right to an abortion." During his confirmation hearings last week, Alito declined to disclose his current views on abortion rights.