I gave the backgrounder on the case back in November. It concerned a parental notification law in New Hampshire, a statute which required notification of parents (or a court order, in the alternative, under certain circumstances) before a teenage girl is allowed to have an abortion.
The ruling was somewhat surprising, but the bottom line is that it didn’t alter the playing field much in the abortion debate. It merely deals with the way that courts in the future can address (and remedy) future issues involving abortion law challenges. SCOTUSBlog explains:
The Court, in a rare unanimous vote in an abortion case, ruled that lower courts may have gone too far in striking down the entire parental notice law, enacted in 2003. Declaring that pregnant teenagers sometimes need an immediate abortion to avert serious health problems, the Court said the New Hampshire law must be read to allow that when it occurs, which it suggested would be "in a very small percentage of cases."
If the law can be interpreted to make that exception, and still be in keeping with what the state legislature intended, the Court indicated, the remainder of the law may remain intact. The state law, as written, makes an exception for teenagers where an abortion is necessary to save the pregnant girl’s life, but it does not make a health exception.
Justice Sandra Day O’Connor, in what may be her final ruling as a member of the Court, wrote the decision. She summed it up this way in the opening paragraph:
"We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief."
The ruling was noteworthy in a number of respects, in addition to the unanimity: the O’Connor opinion was unusually brief (ten pages in all, only six pages of analysis), it did not clarify whether abortion restrictions must always have a health exception (in non-emergency situations), it did not settle whether abortion laws’ constitutionality will be judged by a different standard than other laws (the so-called "Salerno" issue), and it was the first abortion decision in which Chief Justice John G. Roberts, Jr., cast a vote of any kind — here, silently joining in a single opinion.
In some ways, the opinion seemed to reveal a collective decision by Justices with far different views on abortion to suspend their disagreement until some future occasion, in order to deal with a case that had come increasingly to look as if it were confined to the law for clearcut medical emergencies, instead of being a major test case on the underlying constitutional controversy. By no means, however, did it bridge the existing fundamental disagreements among the Court’s members in this field of law.
Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges’ authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.
If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor’s professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.