Supreme Court hears N.H. abortion case

WASHINGTON -- Hearing its first major abortion case in five years, the Supreme Court yesterday sharply questioned whether a New Hampshire law, which requires parental notification for a minor who wants an abortion, is legal even though it doesn't include an exception for a health-related emergency.

New Hampshire's attorney general, Kelly A. Ayotte, defending the law, struggled to field the justices' barrage of questions about why the state legislature did not provide an exception for a pregnant minor whose health is in jeopardy. Ayotte answered that a combination of laws provides protection in emergency cases, but some of the justices who have supported abortion rights seemed doubtful.

The case is notable partly because Chief Justice John G. Roberts Jr., the court's new leader and a strong conservative, will help determine the outcome. No justice spoke directly about legalized abortion, but Roberts questioned the mechanics of how this case came before the Supreme Court, raising the possibility that he would argue for sending it back to the lower courts for refinement.

At issue is the 2003 parental-notification law, narrowly approved by the New Hampshire Legislature. Proponents say it allows abortion without parental notification in life-threatening cases or with a judge's authorization. But opponents argue that it doesn't include a general exception allowing an abortion to protect the mother's health, a measure other states have in similar laws.

Justice David H. Souter, a former New Hampshire attorney general, asked Ayotte whether the law explicitly allows a minor to have an abortion in a medical emergency. Ayotte acknowledged that there isn't an ''expressed requirement of a health exception," but argued that it would be wrong to imply that the law would ''infringe on the minor's health if that rare emergency case arises."

This led some justices to wonder whether New Hampshire was trying to have it both ways, passing an abortion law written without a health exception, while arguing that the exception is implied. When Justice Anthony M. Kennedy pushed Ayotte to explain further, she said New Hampshire law allows a minor to have an abortion with a judge's permission, which can be used in medical emergencies. Ayotte said New Hampshire already has a separate law that protects doctors from liability for abortions performed in certain cases.

But Justice Stephen G. Breyer challenged that argument with a hypothetical case: A teenager in critical condition because of her pregnancy tells the emergency room doctor about to treat her that she doesn't want her parents to know she's pregnant. The doctor ''thinks to himself 'immediate abortion, no question.' " Breyer said the doctor believed that the girl's life was not in danger, but that her health was threatened. . . . In such a case, he asked Ayotte, ''What's supposed to happen?"

Ayotte said that in that situation a doctor ''could perform the immediate abortion."

Breyer seemed stunned. ''It doesn't say that in the statute. It suggests the contrary," he said.

Jennifer Dalven, representing Planned Parenthood of Northern New England, argued that the law doesn't provide for a pregnant teen to reach a judge after hours or on short notice to get permission for an emergency abortion. As a result, she said, the ''judicial bypass" provision is ineffective.

Justice Anthony M. Kennedy suggested it wouldn't be difficult to call a judge, but like Roberts he also seemed frustrated that the merits of the judicial bypass provision weren't tested at the lower court level. ''It seems to me that the bypass procedure can go a long way toward saving this statute but that this was not litigated in the trial courts," Kennedy said.

Dalven responded that any delay ''puts the minor's health at risk."

Justice Antonin Scalia responded swiftly. Assuming New Hampshire sets up a special office with an ''abortion judge" on call, he said, the issue would be moot because ''it takes 30 seconds to place a phone call."

Roberts -- who sidestepped questions about his views on abortion during his confirmation hearings -- focused his questions on how the case reached the high court before the law was enacted and why opponents want to strike down the entire regulation if the exception is the key issue.

Roberts asked Ayotte whether she had a problem with the law being challenged before it went into effect, and Ayotte said no.

Roberts later noted that the Supreme Court previously has found an abortion restriction unconstitutional when ''the inadequacies it identified were present in a large fraction of cases. We don't know if that's true here."

The case could be re-argued if Samuel A. Alito Jr. is confirmed to replace Sandra Day O'Connor and the other eight justices are deadlocked in a 4-to-4 tie. In its last major abortion case, the Supreme Court voted 5 to 4 in 2000 to overturn a Nebraska ban on late-term abortions because it did not provide an exception allowing the procedure if it was to protect a woman's health. O'Connor was the deciding vote.