WASHINGTON—The Supreme Court said Monday that it would step back into the rancorous abortion debate, taking up a case that will decide what standard courts should use in judging whether restrictions on abortion are unconstitutional.
A lower federal court struck down a New Hampshire parental-notification law for its lack of an exception for a girl's health, citing previous high-court opinions that prevent states from placing "undue burdens" on those seeking abortions.
New Hampshire's attorney general and legislature say courts should judge abortion laws by a less-precise standard that would force challengers to prove that an abortion law couldn't be constitutional under any circumstances. The Supreme Court hasn't followed such a guideline for at least 13 years, since its landmark 1992 decision in Planned Parenthood v. Casey, which established the undue-burden test. But the justices never have explicitly said whether the New Hampshire standard is wrong.
The case gives the Supreme Court a chance to clarify what terms are proper for abortion restrictions. Forty-four states have some form of a parental-notification or parental-consent requirement on their books. The high court will hear the case in the fall, and decide by June 2006.
"This is a critical area of the law that needs to be corrected," said Jay Sekulow, the chief counsel for the American Center for Law and Justice, which opposes abortion. "The Supreme Court has a very important opportunity to ensure that parents are informed about the health of their children."
Abortion-rights advocates said the case was a chance for the justices to strengthen the requirement for health exceptions in abortion legislation.
"The main question in this case is how many women facing medical emergencies have to have their abortions delayed and health put at risk before the court holds a law unconstitutional," said Jennifer Dalven, the deputy director of the ACLU Reproductive Freedom Project. "As a matter of public health, clearly the answer is one woman is one woman too many."
The case will plunge the justices into the abortion debate at a time when the public is focused on the courts and their role in social issues, abortion prominent among them. The Senate is locked in a bitter battle over the nomination of several lower-court judges, many of whom Democrats oppose because of their stances on abortion. Liberal groups also have made abortion a premier issue in the anticipated struggle over a replacement for Chief Justice William H. Rehnquist, who may retire at the end of the court's term in June.
The New Hampshire case will mark the high court's first significant abortion debate since 2000, when it struck down a ban on so-called "partial-birth" abortion.
It will reconcile that decision and the 1992 ruling in Casey with a 1987 decision that New Hampshire officials say protects their right to avoid a health exception in their parental-notification law. The New Hampshire law includes an exception for life-threatening medical issues, but not for more routine problems.
Dara Kassel, the director of legal affairs for the Planned Parenthood Federation of America, which is providing counsel in the case, said the court's insistence on health exceptions was clear, and necessary.
"You could have a minor who might have symptoms that suggest if she doesn't have the abortion soon, she could suffer permanent fallopian-tube scarring," Kassel said. "The issue is, even if a parent would like to know about it, it could take time to notify them and meanwhile, the minor's health could be deteriorating."
Kassel said it shouldn't be about how many women might be affected.
"If abortion is necessary to protect a woman's life or her health, the statute has to allow for that. As rare as it might be, that exception still needs to be available," Kassel said.
Roger Stenson, the executive director of Citizens for Life, a group that lobbied for the New Hampshire law's passage in 2003, said the health exception was left out because it was "a truck-sized loophole."
"It was created in the original abortion ruling in 1973," Stenson said. "And it was written in such broad language that it included everything—social, emotional, even financial considerations—that could affect a woman's `well-being.'''
Stenson said he was able to convince his state's lawmakers with a simple theme: "Secret abortion on children is child abuse," he said. "They couldn't escape that point."
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(c) 2005, Knight Ridder/Tribune Information Services.
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