Date: Mon, 23 Jan 2006 12:54:14 -0500
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law Programme"
Subject: US Supreme Ct Recognizes Women's Health Protections
Many thanks to Samara Polansky () for writing the following summary for this listserve.
Ayotte, Attorney General of New Hampshire v. Planned Parenthood of Northern New England et al., 546 U.S. __ (2006), (January 18, 2006)
On January 18, 2006, the United States Supreme Court unanimously reaffirmed that the government may not restrict access to abortions that are necessary to preserve a woman’s health. This case is significant in that it is the first case challenging an abortion law that the Court has accepted in five years, and included the newly appointed Justice Roberts. The Supreme Court remanded the case to lower court to determine if it is necessary to invalidate the statute in its entirety by examining legislative intent. If the lower court establishes that the omission was intentional, the statute may be invalidated in its entirety and thereby provide further support for women’s health and safety in the abortion context. The following is a brief overview of the legal challenges to the New Hampshire law, the Parental Notification Prior to Abortion Act, 2003, which led to last week’s Supreme Court decision.
In June 2003, the New Hampshire General Court narrowly passed HB 763-FN, "an act requiring parental notification before abortions may be performed on unemancipated minors", or the Parental Notification Prior to Abortion Act, 2003 N.H. Laws ch. 173, which was to have an effective date of December 31, 2003. The Act prohibited physicians from performing an abortion on a pregnant minor, or a woman for whom a guardian or conservator has been appointed, until 48 hours after written notice of the pending abortion is delivered to her parent or guardian. The plaintiffs, Planned Parenthood of Northern New England, ConcordFeministHealthCenter, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D., brought suit against defendant, the Attorney General of New Hampshire, and sought to have the Parental Notification Prior to Abortion Act, 2003 declared unconstitutional. The health centers and the doctor also sought an injunction to prevent enforcement of the Act.
Lower Courts:
At the District Court level, Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. contended that the Parental Notification Prior to Abortion Act, 2003 was unconstitutional because it lacked an exception to the parental notice requirement in circumstances when the delay would threaten the health of the pregnant minor. District Court Judge Joseph A. DiClerico, Jr. found that although the Act included an exception to the notification requirement when an abortion was necessary to prevent the death of a pregnant minor, it did not include an exception to protect her health short of fatality. Thus, on its face, the Act did not comply with the constitutional requirement that laws restricting a woman's access to abortion must provide a health exception, and the judicial bypass provision did not save the Act from the lack of a constitutionally required health exception. The district court found unconstitutional both (1) the lack of an explicit exception to protect the health of the pregnant minor, and (2) the narrowness of the Act's exception for abortions necessary to prevent the minor's death. On December 29, 2003, the health centers and the doctor's motion for an injunction was granted as was their request for a declaratory judgment and the Parental Notification Prior to Abortion Act was permanently enjoined from enforcement.
The New Hampshire Attorney General appealed the District Court’s order to the United States Court of Appeals for the First Circuit, which affirmed the decision of the District Court.
The judgment of the District Court of New Hampshire can be accessed at:
The judgment of the U.S. Court Appeals for the First Circuit can be accessed at:
United States Supreme Court:
The Attorney General of New Hampshire, Kelly Ayotte, appealed the decision of the Court of Appeal. On May 23, 2005, the Supreme Court granted certiorari to review the case, which was argued on November 30, 2005. The issue before the Supreme Court was not whether the Parental Notification Prior to Abortion Act was constitutional, but rather, if enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is to be the judicial response. On January 18, 2006, the Supreme Court vacated the judgment of the First Circuit's decision in a unanimous decision written by Justice O'Connor.
The Supreme Court found three propositions were established. First, States have the right to require parental involvement when a minor considers terminating her pregnancy. Second, a State may not restrict access to abortions that are “necessary, in appropriate medical judgment for preservation of the life or health of the mother”, as was established in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (plurality opinion). Third, in a very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health. This fact was not disputed by the New Hampshire Attorney General. The Supreme Court turned to the question of remedy and asked: “When a statute restricting access to abortion may be applied in a manner that harm’s women’s health, what is the appropriate relief?” The Court examined its decision in Stenberg v. Carhart, 530 U.S. 914, where the Nevada “partial birth abortion” law was invalidated in its entirety for lacking a health exception, though the parties had not requested, and the Court did not consider a more modest remedy. Justice O’Connor found that the New Hampshire law would present a constitutional problem in only a few cases and, so long as the lower courts are faithful to legislative intent, a declaratory judgment may be issued prohibited the statute’s unconstitutional application without invalidating the entire statute. The case was remanded to lower court to consider the legislative intent and whether the Parental Notification Prior to Abortion Act, 2003 must be invalidated in its entirety to prevent unconstitutional application.
The judgment of the United States Supreme Court can be accessed at: