Abortion Case Offers U.S. Chief Justice Chance to Reshape Law

Nov. 29 (Bloomberg) -- New U.S. Chief Justice John Roberts will get his first chance to rule on abortion with a case that may insulate parental-notification laws and other restrictions from legal challenges.

The appeal by the state of New Hampshire, set for argument tomorrow in Washington, argues that bids to invalidate abortion restrictions must meet a tough legal standard that applies in other types of cases. The state and the Bush administration say abortion laws should be overturned only if they can't ever be applied in a constitutional manner.

The court's ruling ``could either open the floodgates or shut them when it comes to abortion litigation,'' Mathew Staver, president of Liberty Counsel, an anti-abortion group in Orlando, Florida, said in an interview.

The case illustrates how the Roberts court could allow more restrictions on abortion without overturning the 1973 Roe v. Wade decision that legalized the procedure nationwide. Both Roberts and Judge Samuel Alito, the nominee to succeed retiring Justice Sandra Day O'Connor, worked on legal efforts to limit abortion rights as attorneys in Republican administrations.

``It's not just an on-off question about whether there's a constitutional right to abortion,'' Mary Cheh, a law professor at George Washington University in Washington, said in an interview. ``If there is such a constitutional right, to what extent is it actually protected? And how far can a state go in regulating it?''

Alito and Kennedy

The case is the first Supreme Court abortion fight since 2000 and just the second since the 1992 Planned Parenthood v. Casey decision reaffirmed the constitutional protection. The court soon will consider whether to add a second case, the Bush administration's bid to revive a federal ban on a procedure critics call ``partial birth'' abortion.

Alito, whose nomination to succeed O'Connor is scheduled for Senate consideration in January, ultimately may take part in both cases. O'Connor says she will step down as soon as her successor is confirmed, and she can't participate in decisions issued after she retires, even if she took part in the argument.

Should the other eight justices be evenly split on the New Hampshire case, the court may order the case reargued with Alito on the bench.

Whether that happens likely will depend on the vote of Justice Anthony Kennedy, according to Douglas Kmiec, a law professor at Pepperdine University in Malibu, California. Kennedy joined the majority in upholding the right to abortion in the 1992 case, then voted to allow restrictions in 2000.

`Turns on Kennedy'

``The case turns on Kennedy,'' Kmiec said in an interview. ``I don't think Justice O'Connor will be present when the court's decision is issued. So her vote is no longer one that is in the calculus.''

The New Hampshire law, which has never taken effect, would require parental notification 48 hours before a minor undergoes an abortion. Judges could allow an abortion without a parent being told if it ``would be in her best interests'' or if the girl is ``mature and capable of giving informed consent.''

An exception would allow the procedure without parental notice or permission from a judge if needed to prevent the girl's death. There's no exception if an abortion is needed to protect against damage to her health short of death.

Planned Parenthood of Northern New England and other women's health clinics are challenging the law. They contend that past high court decisions require abortion restrictions to have an explicit health exception.

`Change the Rules'

New Hampshire is ``asking the court to do something radical, asking the court to change the rules so that there would no longer be a requirement that abortion laws protect a woman's health,'' Louise Melling, director of the American Civil Liberties Union's Reproductive Freedom Project, which is representing the clinics, said in an interview.

The Boston-based 1st U.S. Circuit Court of Appeals barred the law from taking effect, upholding a lower court decision.

In his brief for the Bush administration, U.S. Solicitor General Paul Clement said the challengers failed to show that emergency health risks would arise in ``more than a small fraction of the cases to which the statute applies.''

New Hampshire Attorney General Kelly A. Ayotte says the judicial-bypass procedure adequately protects the mother's health.

``Certainly, if an abortion is necessary for the preservation of the health or life of the minor, it would be in the pregnant minor's best interest and a court would authorize the procedure within minutes, if necessary,'' Ayotte argued in court papers.

`Facial' Challenges

Abortion opponents also are making a more sweeping argument that would make it harder to lodge ``facial'' challenges to abortion laws -- those that seek to invalidate an entire law without waiting for it to be applied to a particular person.

They want the court to allow facial challenges only when there is ``no set of circumstances'' under which the law could be applied in a valid manner. That standard, dubbed the ``Salerno'' rule after a 1987 case, applies in most other contexts.

``The question is whether there should be an abortion exception'' to that rule, Staver said. He said laws shouldn't be struck down ``because of some remote, hypothetical application that may be impermissible.''

The court declined to impose the Salerno standard in its last two abortion cases. Reproductive-rights advocates say the impact of the rule would be devastating because case-by-case litigation isn't a realistic option in abortion cases.

``It would mean a doctor would have to wait until a teen faced a medical emergency,'' Melling said. ``In that case the doctor, instead of going to a hospital, would have to go to court.''

The case is Ayotte v. Planned Parenthood of Northern New England, 04-1144.