WASHINGTON – The Supreme Court repeatedly has passed up chances to step into disputes over abortion rights.
So it was a surprise Monday when the justices put an abortion case involving New Hampshire’s parental notification law on the agenda for next term.
The case may go before a court that does not include Chief Justice William H. Rehnquist, the only remaining member of the 1973 court that decided Roe v. Wade.
Rehnquist, 80, has thyroid cancer and was seen being wheeled Monday into the Capitol, apparently for medical treatment. A Rehnquist retirement would give President Bush his first vacancy on the Supreme Court, and abortion would be the flashpoint in the debate over a replacement.
“It is a bold step to take the case, bold in a political sense,” said Douglas Kmiec, a constitutional law professor at Pepperdine University. “It may well be the court’s way of reminding the president there’s a lot at stake in a Supreme Court vacancy.”
The last major Supreme Court abortion case splintered the justices 5-4 five years ago. A similar split could occur again, with or without Rehnquist, with additional drama outside the court.
“Boy it does make for an interesting summer – potential chief justice retirement, the filibuster fight and the Supreme Court delving into the abortion issue once again,” said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice.
Until Monday, the high court had not been very receptive to abortion cases. Earlier this year, justices declined to hear a challenge to the 1973 ruling by the woman known as “Jane Roe” who was at the center of the historic case. They also refused to consider reinstating an Idaho law requiring girls under age 18 to get parental consent for abortions except under the most dire of medical emergencies.
In the new case, justices will review a 2003 New Hampshire law that an appeals court ruled was unconstitutional because it didn’t provide an exception to protect the minor’s health in the event of a medical emergency.
The subject of parental involvement in abortion decision-making has been prominent in state Legislatures this year. Florida, Idaho and Oklahoma have new laws.
Dara Klassel, an attorney with Planned Parenthood Federation of America, said the high court’s intervention shifts attention to the justices, and potential retirements.
“It ramps things up,” she said. “Who sits on that court is going to be extremely important.”
Jennifer Dalven, the American Civil Liberties Union lawyer handling the new case, said: “We are welcoming the opportunity to put to rest any lingering questions about whether a woman’s right to an abortion is entitled to full constitutional protection.”
Rehnquist has opposed abortion rights but has not been able to persuade his colleagues to roll back the landmark 1973 Roe v. Wade decision, made when Rehnquist had been on the court just a year.
The case that will be argued near the end of 2005 does not deal with the legality of abortion, but a victory for New Hampshire on parental notification could give states more flexibility to make it harder for women to get abortions. The court is clarifying the legal standard that is applied when courts review the constitutionality of abortion laws.
In its last major abortion decision in 2000, the Supreme Court ruled that state abortion laws must provide an exception to protect the mother’s health.
In their appeal, New Hampshire officials argued that their abortion law need not have an “explicit health exception” because other state provisions call for exceptions when the mother’s health is at risk.
The New Hampshire law required that a parent or guardian be notified if an abortion was to be done on a woman under 18. The notification had to be made in person or by certified mail 48 hours before the pregnancy was terminated.
In 2000, about 92,000 minors 17 and under obtained legal abortions nationwide.
The case is Ayotte v. Planned Parenthood, 04-1144.
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On the Net:
Supreme Court: http://www.supremecourtus.gov/
List of state laws: http://www.plannedparenthood.org/pp2/portal/files/portal/medicalinfo /aborti o
n/fact-parental-consent.xml
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