Washington – The Supreme Court is considering its first abortion rights case under the leadership of Chief Justice John Roberts, with an unpredictable outcome because of the court’s changing makeup.
The stakes are significant in the dispute over a New Hampshire law requiring minors to tell a parent before ending a pregnancy, although the case does not challenge the 1973 Roe v. Wade ruling that said abortion is a fundamental constitutional right.
The outcome is likely to signal where the high court is headed on an issue that has been emotional and divisive among the justices and around the country.
Abortion was a prominent subject in Roberts’ confirmation hearings and has emerged as a major issue in President Bush’s nomination of appeals court Judge Samuel Alito to replace retiring Justice Sandra Day O’Connor. O’Connor has been the swing vote in support of abortion rights.
If Alito is confirmed by the Senate early next year, his vote could be needed to break a tie in the New Hampshire case being argued before justices. Abortion cases generally draw large crowds at the Supreme Court, but buzz around today’s argument was particularly frenzied because the court until this fall had no turnover for 11 years.
Abortion rights protesters held signs that said “Save Roe!” while anti-abortion activists sang hymns in front of the court before the argument.
New Hampshire Attorney General Kelly Ayotte told justices in a filing that the law “provides pregnant minors with the benefit of parental guidance and assistance in exercising what is undoubtedly a difficult choice.” O’Connor, a supporter of Roe v. Wade and the first woman named to the court, is retiring after 24 years and will likely leave the court before the case is decided. A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions.
It is unknown how Roberts or Alito would vote on a rollback of Roe v. Wade.
Meanwhile, the court could use this case to make it extremely difficult for abortion rights groups to challenge restrictions, without dealing with the sticky issue of overturning Roe. At issue is the legal standard for courts in handling lawsuits over abortion laws.
The New Hampshire case is being closely watched by the dozens of states that require minors to tell a parent or get permission before having an abortion.
Justices were told that 24 states mandate a parent’s approval and 19 states, including New Hampshire, demand parental notice.
The court is considering whether the 2003 New Hampshire law puts an “undue burden” on a woman in choosing to end a pregnancy.
O’Connor is an architect of the undue burden standard, and was the deciding vote in the last abortion case five years ago, when justices ruled that a Nebraska law banning a type of late-term abortion was too burdensome.
That law, like the one at issue today, did not have an exception to protect the mother’s health. New Hampshire argues that exceptions are permitted when the mother’s health is at risk, and that should be enough.
The law requires a parent or guardian be notified when an abortion is planned for someone under 18, followed by a 48-hour waiting period. A judge can waive the requirement.
“In an emergency, a woman needs to go to the hospital not a courthouse,” justices were told in a filing by Jennifer Dalven, attorney for Planned Parenthood of Northern New England which challenged the law.
The Supreme Court agreed to allow news organizations to air audio recording of the court’s argument immediately after its conclusion, giving the public its first chance to hear the new chief justice on the bench. Cameras are not allowed in the court.
Roberts, 50, replaced Chief Justice William H. Rehnquist, who died in September after a yearlong fight with cancer.
Justices agreed to hear the New Hampshire case before Rehnquist’s death – and before O’Connor surprised colleagues with news that she was stepping down.
The case is Ayotte v. Planned Parenthood, 04-1144.
