Monday, May 23, 2005

Supreme Court Taking Up Abortion Notification
Court to hear N.H. appeal seeking to reinstate law requiring parental notification for abortions

Associated Press Writer

WASHINGTON (AP) -- The Supreme Court said Monday it would take up a new abortion case this fall, raising the political stakes just as the court faces the possibility of replacing ailing Chief Justice William H. Rehnquist.

The justices, in agreeing to review a parental notification law from New Hampshire, showed surprising zeal to take on a divisive subject - especially considering the uncertainty of the court's future and the partisan fighting in the Senate over President Bush's nominees for federal judgeships.

The last major Supreme Court abortion case splintered the justices 5-4. A similar split could occur again, with or without Rehnquist, with additional drama outside the court.

"It is a bold step to take the case, bold in a political sense," said Douglas Kmiec, a constitutional law professor at Pepperdine University. "It may well be the court's way of reminding the president there's a lot at stake in a Supreme Court vacancy."

Rehnquist, 80, has thyroid cancer and was seen being wheeled Monday into the Capitol, apparently for medical treatment. A Rehnquist retirement would give Bush his first vacancy on the Supreme Court, and abortion would be the flashpoint in the debate over a replacement.

"Boy it does make for an interesting summer - potential chief justice retirement, the filibuster fight and the Supreme Court delving into the abortion issue once again," said Jay Sekulow, chief counsel for the conservative American Center for Law and Justice. "This is the first order of business for a new justice. It wouldn't just be hypothetically talking about Roe v. Wade."

Jennifer Dalven, the American Civil Liberties Union lawyer handling the new case, said: "We are welcoming the opportunity to put to rest any lingering questions about whether a woman's right to an abortion is entitled to full constitutional protection."

The timing, she said, "is a reminder to the American public about how important this issue is."

Rehnquist has opposed abortion rights but has not been able to persuade his colleagues to roll back the landmark 1973 Roe v. Wade decision, made when Rehnquist had been on the court just a year.

The case that will be argued near the end of 2005 does not deal with the legality of abortion, but a victory for New Hampshire on parental notification could give states more flexibility to make it harder for women to get abortions. The court is clarifying the legal standard that is applied when courts review the constitutionality of abortion laws.

In its last major abortion decision in 2000, the Supreme Court ruled that state abortion laws must provide an exception to protect the mother's health. Justices at the time reasoned that a Nebraska law, which banned so-called "partial-birth" abortions, placed an "undue burden" on women's abortion rights.

In this case, the justices will decide whether health exceptions are required in abortion laws requiring parental notification. A lower court struck down New Hampshire's law.

Dalven said 34 states have notification laws, and most have health exceptions.

In their appeal, New Hampshire officials argued that the abortion law need not have an "explicit health exception" because other state provisions call for exceptions when the mother's health is at risk.

The New Hampshire law required that a parent or guardian be notified if an abortion was to be done on a woman under 18. The notification had to be made in person or by certified mail 48 hours before the pregnancy was terminated.

The Supreme Court has passed up other opportunities to consider abortion cases. Earlier this year, justices declined to hear a challenge to the Roe v. Wade ruling by the woman known as "Jane Roe" who was at the center of the historic case. They also declined to consider reinstating an Idaho law requiring girls under age 18 to get parental consent for abortions except under the most dire of medical emergencies.

The latest case is Ayotte v. Planned Parenthood, 04-1144.


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