Ayotte v. Planned Parenthood of New England

It’s being heard by the Supremes tomorrow (November 30th) and new Chief Justice Roberts gets to be a part of it.

Ayotte will determine whether or not a New Hampshire law, which states unemancipated minors must obtain written consent from their parents within 48hours of an abortion, is unconstitutional because it lacks an exception for the health of said minor.

The United States District Court of New Hampshire found the Act unconstitutional and for that reason it could not be applied:

After carefully reviewing the provisions of the Act and the applicable United States Supreme Court precedents, the court has concluded that the Act fails to meet the constitutional requirements as determined by the United States Supreme Court. Therefore, the Act cannot be enforced.

Here is a section of the Act that seems to go unnoticed though I believe it places a burden on the doctor/patient privilege afforded to minors:

RSA 132:25, I. Paragraph II requires written notice to be addressed to the parent at the parent’s "usual place of abode" and to be "delivered personally by the physician or an agent." Paragraph III provides an alternative to allow notice by certified mail, return receipt requested, with delivery restricted to the addressee.

This was part of New Hampshire’s Parental Notification Prior to Abortion Act that barely passed both the House and Senate committees. Requiring physicians to personally deliver letters to parents of pregnant minors within 48 hours would not only place an undue burden on doctors and their staff, it may also have the backfiring effect of keeping pregnant minors away from doctor offices altogether. We, including unemancipated minors, are supposed to be able to trust doctors, right? This is an issue Judge DiClerico choose to ignore in his ruling in favor of Planned Parenthood.

Judge Torruella, writing the opinion for the United States Court of Appeals First Circuit, agreed with the lower courts ruling for the same reasons. He also went on to say Attorney General Heed argued that in order to prove the Act was facially invalid, "the court must apply the 'no set circumstances' standard set forth in United States v. Salerno." Torruella then went on to briefly state what had been decided in Planned Parenthood of Southeastern Pennsylvania v. Casey where O'Connor's undue burden standard was thus set in stone.

It is important to remember that while O'Connor agreed spousal notification laws were unconstitutional because they placed an undue burden on the rights of women to procure an abortion at her choosing, she didn't think parental notification laws or mandatory waiting periods did. When you read the ruling in Casey by the 3rd Circuit Court of Appeals (where Judge Alito has sat for 15 years), you will notice O'Connor believes that because a judicial bypass is included in the restrictions on minors seeking an abortion, this eliminates the undue burden standard. This will be the pressing issue when Judge Samuel Alito begins his nomination hearings January 9th since he was the lone dissenter in Casey.

But I digress.

District Attorney Heed wanted the standard set in Salerno to be the considered application for Planned Parenthood v. New Hampshire, the former was argued only a few years before Casey came along. Heed also argued that the undue burden was not thus concreted by O’Connor’s decision in Casey even though she directly stated that it will be how they decide the constitutionality of abortion laws from then on out.

Then Judge Torruella states:

Complementing the general undue burden standard, the Supreme Court has also identified a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of a pregnant woman's health.

Twice that was said, including the lower courts ruling. Heed left it at that but when Kelly Ayotte replaced Heed in 2004, this was his first order of business despite the opposition from New Hampshire's Governor.

So it will be interesting to see how the Supremes rule this time considering they've ruled on it numerous times before, especially in 1973 when Roe was decided. The true test will be if Roberts understands precedent as he said he did in his confirmation hearings.