Yup.  It’s time once again to look at a major case coming before the Supreme Court, and attempt (inadequately) to translate what the legal issues are, as well as the case’s impact.

Tomorrow, the Court will hear arguments in the case of Ayotte v. Planned Parenthood of Northern New England.  As you may have guessed, this is an abortion case, and as abortion cases go, this could be important.  For two reasons: (1) the issues involved (discussed below); and (2) the first abortion case in the Roberts Court.

As an interesting sidenote, this case deals with parental notification.  The last major case on this subject was Planned Parenthood of Pennsylvania v. Casey, where Justice O’Connor spanked a Third Circuit judge who was not sympathetic to the pro-choice, anti-notification side.  That lower court judge was Judge Alito, O’Connor’s (probable) replacement.  But since Alito hasn’t been confirmed yet, the Ayotte case will be heard tomorrow by O’Connor and the other eight.

But there is an interesting angle to composition of the Supreme Court, which I will get to toward the bottom of this post.

The statute under review in Ayotte is New Hampshire’s Parental Notification Prior to Abortion Act, which prohibits abortion providers from performing an abortion on an unemancipated minor unless the minor’s parents or guardian have been given at least 48 hours’ notice.

The statute carves out three exceptions to this rule: (a) the pregnant minor has written confirmation that her parents already know about the abortion; or (b) the abortion provider certifies that the abortion is necessary to prevent the pregnant minor’s death and that there is insufficient time to provide the required notice; or (c) the minor obtains a court decree authorizing the abortion upon a finding that she is mature and capable of giving consent to the abortion procedure, or that it would be in her best interests not to notify.

The NH statute was challenged as unconstitutional.  A district court upheld the challenge, and ruled the statute unconstitutional.

On appeal, the First Circuit also ruled that the statute was unconstitutional for two reasons:

(1)  The statute fails to provide an exception when the health of a pregnant woman is threatened by the pregnancy.  Note that the exception above applies to death of the pregnant minor only.  But the Supreme Court has always ruled, from Roe to Casey to Stenberg (the partial abortion case a few years ago), that statutes which seek to limit access to abortions must contain an exception for situations where the health of the mother is at risk, not just her life.

(2)  The statute fails to provide an exception when the life of a pregnant woman is threatened by the pregnancy.  Even though the statute has a "death exception", the First Circuit thought it was too narrow.  Under the statute, the physician has a 48-hour period to ascertain whether the "death exception" might apply, and if so, the pregnant minor would then be able to have an abortion without parental notification.  Unfortunately, the court reasoned, a physician might not know with certainty within the 48-hour window if a life-saving procedure would be needed. The statute thus forces physicians to choose between gambling with their patients’ lives and facing liability.

Aside from the health/life issues, there is another aspect to the Ayotte case which may have an even broader impact on the abortion court battle.  The case also raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes.

Planned Parenthood argues that they should only have to show that the law might endanger the lives or health of some hypothetical women in some hypothetical circumstances.

The State of New Hampshire, on the other hand, argues that constitutional challenges should be allowed only if the challenger can show that the law would endanger the lives or health of every pregnant woman, and thus be unconstitutional in every circumstance. Challengers who can only show that a law is dangerous to some women in some circumstances must wait until those circumstances actually arise, and then only have the law declared unconstitutional as applied to them.   

Think about the ramifications of New Hampshire’s argument as applied to the New Hampshire statute: pregnant minors would have to wait until their life or health was at risk before they could challenge the constitutionality of the statute.  In other words, if New Hampshire wins on this particular issue, it will be harder in the future for other people to challenge statutes which seek (in some way) to limit access to abortions.

Now, how will this case come out?  Conventional wisdom is that the Supreme Court will be split on ideological lines (like other abortion cases).  And (like other abortion cases) O’Connor will be the deciding vote in favor of Planned Parenthood (meaning, the statute is unconstitutional because it doesn’t provide adequate exceptions to the parental notification requirement in situations where the life/health of the pregnant minor is at risk).

HOWEVER (here’s where it gets interesting), if Judge Alito gets confirmed and O’Connor’s retirement becomes effective before the Supreme Court actually decides this case, then the Supreme Court will probably have the litigants re-argue the case before the new court (with Alito on the bench).  And in that scenario, conventional belief is that Ayotte (i.e., New Hampshire) will win the case, and the backward slide against abortion rights will begin.

Kelly Ayotte is the Attorney General for the State of New Hampshire, arguing in favor of the statute.  The United States Solicitor’s Office has submitted a friend-of-the-court brief, also supporting the New Hampshire statute.  Jennifer Dalven will argue the case for Planned Parenthood.