The U.S. Supreme Court will hear two cases in the next week that illustrate precisely why there has been such a fuss lately about the direction and makeup of the nation’s highest court.
Today, the court hears oral arguments in a New Hampshire parental notification abortion case. Next Tuesday, it will hear arguments on whether a law school which receives federal funds must provide equal access to military recruiters. In the latter case, the school will claim it may bar military recruiters because it disapproves of the military policy toward homosexuals.
Each of the cases is important because they deal with contentious social and cultural issues typically left to legislatures, and prior U.S. Supreme Court decisions were neither clear nor consistent.
Coloradans have a special reason for interest in the abortion case because this state passed an initiative in 1998 similar to the law in New Hampshire, but it too was nullified by the courts before it could go into effect.
Nationally, Colorado is one of nine states that have had parental notification or consent laws suspended by lower courts.
Twenty-one states have parental consent laws and 13 have parental notification laws. Obviously, the case law is anything but clear; presumably the New Hampshire case will give the court a fresh opportunity to clear up the confusion.
Specifically the court will have to decide two legal issues:
Whether the 1st Circuit Court of Appeals was wrong in invalidating the New Hampshire statute “because it did not contain a health exception and because the death exception was too narrowly drawn.”
Whether the court applied the wrong standard for determining when a statute can be declared unconstitutional on its face.
Interestingly, both of these issues figured prominently in the Colorado case that was decided in 2002 by the 10th Circuit Court of Appeals. The 10th Circuit used similar reasoning to that of the 1st Circuit in the New Hampshire case. Both courts ruled that prior Supreme Court decisions absolutely require a health exception to be included in abortion cases. Both courts also chose to ignore an earlier Supreme Court decision which held that a state law may not be declared unconstitutional unless the court finds that there is “no set of circumstances” in which the law might be valid.
The current case is not the first time the Supreme Court has dealt with the issue of a health exception. In 1990, a number of the current justices upheld major elements of a Minnesota statute requiring parental notification in cases where a minor was seeking an abortion. Although the case produced a fractured set of opinions, six of the justices ultimately found that notification of one parent was constitutional as long as the minor had access to the courts and the right to bypass the notification requirement in special circumstances.
The New Hampshire and Colorado laws both had such provisions yet were declared invalid by the courts.
Since the Minnesota case, the nation’s highest court has ruled in two other important abortion cases. One involved various restrictions on abortions in Pennsylvania and the second with partial birth abortion in Nebraska.
Now the court must decide if these later decisions effectively negated its decision in the Minnesota case.
If the court was correct in the Minnesota case, it will have some explaining to do as to why the New Hampshire law isn’t also constitutional.
Public opinion polls have consistently shown widespread support for parental notification laws.
Justice Anthony Kennedy 15 years ago said that the notion that a parent should be aware of a child’s decision to seek an abortion rests “upon a tradition of a parental role in the care and upbringing of children that is as old as civilization itself.”
If that was true then, it is surely true today; therefore, the court must find a way to uphold the New Hampshire law and reestablish the principle that the right of judges to strike down presumptively valid state laws is strictly limited, even when the subject is abortion.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
