WASHINGTON – The enduring national debate regarding abortion continues at the U.S. Supreme Court today with two cases, though neither directly challenges the constitutional right articulated in Roe vs. Wade 32 years ago.
One case involves a New Hampshire law requiring parental notification before a minor can undergo an abortion. The other involves a civil racketeering suit against abortion protesters that began in Illinois nearly two decades ago.
The two cases are the first in five years to reach the high court and the first ever under Chief Justice John Roberts. Those for and against abortion plan to converge at the high court, suggesting that three decades haven’t diminished the passion for either side.
The justices’ review comes as the debate for all its attention and passion has evolved for most Americans.
In a recent poll by the Pew Forum on Religion and Public Life, 65 percent said they believe a woman has the right to terminate an unwanted or unhealthy pregnancy – but with restrictions. And it’s those restrictions – the when and the how – at the core of today’s argument.
The question in New Hampshire is whether that state’s law is too restrictive. A meticulous notification process doesn’t allow physicians enough latitude to perform emergency abortions to protect a young woman’s health, critics say.
“The case is not about whether states may require a parent’s involvement. The Supreme Court has said that states can do so,” said Nancy Northrup, president of the Center for Reproductive Rights, a pro-abortion rights group. “The case is about whether these laws must allow physicians to protect their patients’ health by acting immediately in an emergency.”
But the case is also about the standard by which New Hampshire’s notification statute was judged unconstitutional – a matter of great concern to 42 other states that have such parental notification or parental consent statutes on the books.
A federal appeals court declared the New Hampshire law unconstitutional in 2003, citing the statute’s lack of a “health exception” to its stringent notification rules. The state requires physicians – under threat of criminal sanctions – to notify at least one parent or wait for a court order before proceeding with an abortion on a minor. The only medical exception is one involving life or death.
Normally, when an entire law is thrown out, it’s because there is no circumstance in which the law is constitutional. New Hampshire and the other states say the lower court ignored that in its ruling.
In a “friend of the court” brief filed on behalf of 18 states, Texas Solicitor General Ted Cruz said the New Hampshire law had been declared unconstitutional based on only a “large fraction” of circumstances – even those theoretical – where notification might be burdensome to a pregnant minor.
“This decision is just plain wrong,” Texas Attorney General Greg Abbott said Tuesday. “This (New Hampshire’s) law places no obstacles in the path of a woman’s informed choice; it simply takes steps to ensure that a minor … has a reasonable opportunity to receive guidance and understanding in making her choice from a parent who cares about her.”
In the other case – actually, two abortion-related cases combined – the National Organization for Women is asking the court to clarify a ruling it made two years ago. It is the third trip to the Supreme Court for these particular cases.
In 1986, NOW filed antitrust complaints against the Pro-Life Action League and Operation Rescue, two high-profile anti-abortion groups who had made a practice of blocking clinics – NOW alleged violently – where they believed abortions were being performed. Three years later, NOW added civil racketeering charges to their lawsuits.
The antitrust charges were dismissed. But in 1994, the Supreme Court allowed NOW to use racketeering laws against the anti-abortion protesters. During in a seven-week civil trial in Chicago two years later, the organization won judgments against both groups for extortion.
In 2003, however, the justices ruled during the case’s second trip to the high court that many of the acts cited in the conspiracy verdict did not rise to the level of extortion and racketeering. NOW is seeking clarification
As bitterly as the groups have fought over abortion protests, the issue of actual physical access to medical clinics has all but disappeared. Since 1994, clinics have been protected by federal law.
“This should be our last trip to the Supreme Court,” said Joe Scheidler, founder and president of the Pro-Life Action League.
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