WASHINGTON – When the Supreme Court decide Ayotte v. Planned Parenthood of Northern New England et al. – the first abortion-related case to go before the Court in five years – it could unravel decades of legal protection for women's health and significantly alter the ability of women and doctors to prevent enforcement of dangerous abortion restrictions. The case involves a New Hampshire law that prevents doctors from performing an abortion for a young woman under the age of 18 until 48 hours after a parent has been notified. Contrary to Supreme Court precedent, the law contains no exception for circumstances in which the delay would seriously endanger a young woman's health. The lower courts struck down the law precisely because of this omission.
A decision in Ayotte , however, could reach far beyond teenagers in New Hampshire. In accepting the case, the Court agreed to consider two questions, each of great import. First, must abortion restrictions include exceptions to protect women's health? And second, what legal standard must courts apply when evaluating the constitutionality of abortion laws?
When it comes to women's health, the Supreme Court has been clear. In an unbroken line of cases stretching back 30 years, from the decision in Roe v. Wade through the ruling in Stenberg v. Carhart five years ago, the Court has consistently held that women's health must remain the paramount concern whenever lawmakers regulate abortion. As the undisputed evidence in this case shows, the delay required by New Hampshire's law would pose real risks, including infertility, vision loss, and permanent kidney or liver damage.
The state has nonetheless asked the Court to uphold the law without an exception for medical emergencies short of imminent death. It argues that there is no need for an exception – that the physician treating a minor with an emergency health condition can and should instead go to court and seek a waiver of the law's notice and delay requirement. This position is extreme and callous. Just ask yourself: If your daughter or wife or sister faced a medical emergency, where would you want her doctor to go – racing to court for permission to treat her or rushing to the hospital to provide the care she urgently needed?
But it is not only the protection for women's health that is in jeopardy in this case. It is the ability of doctors and women to challenge and to prevent enforcement of dangerous laws like New Hampshire's. Th e state and the U.S. Solicitor General have urged the Court to uphold this law, and any other abortion restriction, unless there is no set of circumstances in which it can be constitutionally applied.
This standard, if adopted, would constitute a radical shift in the Court's abortion jurisprudence and one with grave implications for women's rights and health. Two examples help make this clear. In Planned Parenthood v. Casey , the Court invalidated a law that required women to notify their husbands before having an abortion, primarily because of the effect this law would have had on battered women. If the state and the Solicitor General have their way, such a law would stand despite the threat it would pose to battered women because it could constitutionally be applied to women who voluntarily tell their husbands about their planned abortions. Thus, under the proposed legal standard, instead of being able to strike the law in its entirety and protect battered women who may not be able to go to court to seek an exception to the spousal notice requirement, the law would remain standing.
By the same token, a court w c ould not strike down a state ban making all abortions a crime, because it could be constitutionally applied post-viability, where the woman's life or health was not endangered. Instead individual women – even those seeking early abortions – would have to go to court to get permission for an abortion.
Indeed, the S s tate and the Solicitor General urge the Court to still further restrain the ability of women and doctors to challenge abortion restrictions. For decades now, women and their doctors have been able to go to court, before a law goes into effect, to stop its enforcement, before women risk immediate harm. But the S s tate and the Solicitor General argue that courts should not hear these “hypothetical” cases and instead should wait for a woman in the midst of a medical emergency to come to court. This is a radical argument with dangerous consequences for women's health.
If the state prevails in Ayotte, we could go from a world in which doctors and women have been able to challenge laws, before they go into effect and in their entirety, to prevent real harm to women's health and rights, to one in which doctors and individual women would have to go to court, in a moment of immediate need to seek permission to have an abortion. Under this regime, Roe and the right to abortion will remain standing, but women's health and access to safe and legal abortion will be dangerously compromised.
Dalven is arguing the case before the Court on Wednesday, November 30, 2005. Plaintiffs in the case are Planned Parenthood of Northern New England, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. Attorneys for the plaintiffs include Jennifer Dalven, Louise Melling, Corinne Schiff, Talcott Camp, Brigitte Amiri, and Diana Kasdan of the ACLU Reproductive Freedom Project; Dara Klassel of Planned Parenthood Federation of America; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, of Nixon Raiche Manning Vogelman & Leach, PA and Legal Director of the New Hampshire Civil Liberties Union.