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High court, new chief justice hear arguments in abortion litmus tests

Cases deal with access, right to protest outside clinics

Protesters gathered outside the Supreme Court for its first abortion case in five years.



Supreme Court
New Hampshire

WASHINGTON (CNN) -- With a new chief justice on the bench, the nation's high court seemed divided Wednesday in a high-profile abortion case that could have a major impact on the laws -- and politics -- regarding the medical procedure.

One case involves a New Hampshire law passed in 2003 that makes it illegal for doctors to perform abortions on minors without first giving their parents or legal guardians 48 hours notice in writing. The law would not require parental consent, and the only exception would be procedures deemed necessary to save a minor's life.

A federal appeals court ruled the law unconstitutional and blocked it from taking effect, saying the exception is not broad enough because it doesn't include exceptions to protect someone's health if their life is not immediately threatened. (Watch 'Amanda' discuss being pregnant at 14 -- 2:09)

Justice Stephen Breyer grilled New Hampshire Attorney General Kelly Ayotte on the exception, asking her what the law would provide if a doctor decided a woman's life was in danger if she didn't receive an abortion quickly, according to audiotape released by the Supreme Court.

Ayotte responded that the minor could always have an abortion in such a circumstance. "People aren't weighing the right of the fetus in this instance to the right of the mother's health," she said.

Chief Justice John Roberts asked Planned Parenthood attorney Jennifer Dalven why she is challenging the entire law if the harm she predicted would come to women seeking an abortion is "so narrow."

"The unfortunate reality is that some pregnant teens need an immediate abortion that delaying even for a short time could prove dangerous," Dalven replied.

Along with Breyer, justices Ruth Bader Ginsburg, Anthony Kennedy and Sandra Day O'Connor expressed concerns that doctors would be placed in precarious medical and ethical dilemmas if the state law were allowed to stand. (Watch about the case before the court -- 2:59)

Ginsburg took issue with Ayotte's assertion that a judge would have to approve an abortion in an emergency situation if the minor refused to notify her parents, saying it would be particularly impractical to get such approval late at night or on weekends.

"That's the real problem here for the doctor who's on the line," she said.

Justice David Souter expressed concerns about inserting language into the law that would broaden the exceptions, especially when the New Hampshire Legislature didn't include it when it ratified the law.

"There is ample record the state Legislature made a conscious choice and deliberately said, 'We'd rather have no statute than one with a health exception,' " Souter said.

The state argued that separate provisions known as "safety valves" allow doctors to seek an emergency judicial waiver of the parental notification requirement for situations in which the minor's life is not immediately threatened.

At least 33 states have parental notification laws, and a CNN/USA Today/Gallup poll indicates that 69 percent of Americans favor such laws. Twenty-eight percent are opposed to such requirements. (Full story)

However, the overall sentiment on abortion laws is the opposite, with 61 percent of Americans saying they don't support a constitutional amendment banning abortion and 37 percent saying they do.

Legal scholars say the case will hinge on whether the law presents an "undue burden" on women seeking an abortion, a standard the Supreme Court has consistently followed in deciding if such laws are too restrictive.

But supporters of the state say the law falls well below that threshold.

"You're not talking about parental consent; you're just talking about notification. In high school, a kid can't even have an aspirin without getting a parental slip, so the idea that they could have an abortion procedure without telling the parents that it's about to happen just seems to be outrageous," said Jay Sekulow, chief counsel of the American Center for Law and Justice.

How the court rules in Ayotte v. Planned Parenthood of Northern New England is expected to have implications for several states' abortion access laws.

The last time the court intervened in a case like this was 2000, when it tossed out a Nebraska law banning late-term abortions. That case mirrored the one in New Hampshire because health exceptions were its crux.

Just an hour before it heard the New Hampshire case, the Supreme Court tackled another contentious abortion matter -- protests outside clinics.

Since the mid-1980s, anti-abortion groups have taught classes on how to protest at abortion clinics.

The high court in the past has ruled on how far protesters must be from the clinics -- as well as from the patients entering the clinics -- and what kind of conduct is permissible.

Wednesday's case will force justices to revisit a 2-year-old ruling that stated protesters could not be prosecuted for harassing patients and doctors, blocking clinic doors or other disruptive behavior. The case also will beg clarification on the issue of whether racketeering and extortion laws apply to groups who organize "sit-ins and demonstrations that obstruct the public's access" to medical clinics, according to court filings.

Supporters of abortion rights say these laws are the only solution to what they call dangerous and sometimes violent behavior aimed at those seeking or providing the medical procedure. Opponents say they are within their First Amendment rights to stage such protests.

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