- The Washington Times - Tuesday, May 24, 2005

The Supreme Court yesterday agreed to review the repeal of a New Hampshire law requiring parental notification before a minor can get an abortion, re-entering the abortion debate after a filibuster compromise on Capitol Hill and amid speculation about Chief Justice William H. Rehnquist’s health.

Planned Parenthood of Northern New England and others successfully challenged the law in the 1st U.S. Circuit Court of Appeals in Boston, arguing that it lacked an exception to protect the mother’s health as required by a 2000 Supreme Court decision.

The decision to take the case prompted concern from pro-choice advocates.

“We are surprised and disappointed the Supreme Court has decided to hear this case,” Karen Pearl, interim president of Planned Parenthood Federation of America, said yesterday.

“Yet, we are confident that this court will reaffirm a woman’s right to abortion access. States should never put women’s health at risk,” she said.

Roger Stenson, executive director of Citizens for Life, a group in North Hampton, N.H., that pushed for the 2003 parental notification law, expressed pleasure in the court’s plan to take it up in the fall.

In 1990, the high court — including Justices Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — upheld a Minnesota parental notification law that is legally indistinguishable from the New Hampshire law, Mr. Stenson said.

“Unless one of those justices changes their mind again,” the high court should reverse the 1st Circuit and uphold the New Hampshire law, he said.

The timing “is a reminder to the American public about how important this issue is,” Jennifer Dalven, the American Civil Liberties Union lawyer handling the abortion case, told the Associated Press.

Chief Justice Rehnquist has not been able to persuade his colleagues to roll back the 1973 Roe v. Wade decision that made abortion a constitutional right over his dissent just a year after he joined the court.

Yesterday, Chief Justice Rehnquist, 80, was seen being wheeled into the Capitol Medical Department, where he stayed briefly before leaving the Capitol. The chief justice has been treated for thyroid cancer and was absent from the bench between October and March, triggering speculation that he may announce his retirement at the end of the court’s session next month.

A vacancy would allow Mr. Bush to make his first appointment to the Supreme Court.

Advocates said the New Hampshire case, Ayotte v. Planned Parenthood of Northern New England, also will escalate interest in the Senate debate over judicial appointments.

“Who sits on the court when this case is decided is critical,” said Ms. Pearl. Only the Supreme Court can protect abortion against “extremists in states like New Hampshire,” she said.

The Senate had been immersed in conflict over the Democrats’ filibusters of some of the president’s appointees to the federal appellate bench, but the fight is widely viewed as a precursor to an eventual party battle over a Supreme Court nominee.

Republicans had been considering a rules change that would lower from 60 to 51 the number of votes nominees need to get a full floor vote, although a compromise was reached last night.

This case “makes the filibuster situation really crucial to us,” Mr. Stenson said.

“Are we going to get justices on the Supreme Court who are Bush judges or are we going to get Kennedy-Biden judges? That’s what the filibuster issue is all about,” he said, referring to Democratic Sens. Edward M. Kennedy of Massachusetts and Joseph R. Biden Jr. of Delaware.

In this case, the justices will decide whether health exceptions are required in abortion laws requiring parental notification. The lower court struck down New Hampshire’s law for not having one.

In their appeal, New Hampshire officials said the notification law need not have an “explicit health exception” because about 34 other state laws cover such contingencies. They also disagreed that the Supreme Court’s 2000 ruling requires all abortion laws to provide exceptions to protect the mother’s health.

The court’s 2000 ruling, its last major abortion decision, ruled that state abortion laws must provide an exception to protect the mother’s health. Justices at the time reasoned that a Nebraska law against partial-birth abortion put an “undue burden” on women’s abortion rights.

This article is based in part on wire service reports.

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