- The Washington Times - Sunday, November 27, 2005

The Supreme Court will hear oral arguments this week in its first major abortion case in five years, reviewing a New Hampshire state law that requires parents to be notified if their underage daughter seeks an abortion.

The case, Ayotte v. Planned Parenthood, comes at an unusual time for the court, since the makeup of the justices is expected to change between the time the oral argument is made and a ruling in the case is delivered.

If confirmed, Supreme Court nominee Samuel A. Alito Jr., who favored a similar state abortion law as an appeals court judge, would arrive on the court as opinions were being drafted in Ayotte — a situation legal scholars say could play out in various ways.

Court tradition holds that new justices do not participate in decisions on cases argued before the justice was confirmed, said Richard Reuben, a Supreme Court specialist at the University of Missouri School of Law.

He noted, however, that “the court has the privilege of establishing its own rules, so it could permit Alito to participate even if he wasn’t there at oral arguments.”

Another option, Mr. Reuben said, is that the current justices could hear arguments now, then reschedule the case for next year so a newly confirmed Justice Alito would be able to participate in both the argument and ruling phases.

A key twist is that Judge Alito has been nominated to replace outgoing Justice Sandra Day O’Connor, whose opinions in cases have had a dramatic effect on the debate over how abortion may be regulated at the state level.

The Ayotte case is being watched closely by interest groups on both sides of the issue, since what’s at stake is a review of how far individual states can go to pass laws that make it more difficult to get an abortion, particularly when the person seeking it is younger than 18.

New Hampshire passed its parental-notification law in 2003, prompting an almost immediate challenge by several groups, including Planned Parenthood of Northern New England and the Feminist Health Center of Portsmouth, which argued that the law presented an unconstitutional barrier for females seeking to exercise abortion rights as outlined in the landmark 1973 Roe v. Wade ruling.

A federal judge agreed with the challengers that the law unconstitutionally lacked a loophole to allow abortion without parental notification if the abortion would save a minor’s life. The ruling was upheld at the federal appeals court level, and New Hampshire Attorney General Kelly Ayotte then appealed it to the Supreme Court, which agreed to take the case in May.

Court observers say the justices likely took the case because it presents a fresh opportunity to weigh in on what has come to be referred to as the “undue burden” standard. The standard stems from opinions written on cases since Roe v. Wade by Justice O’Connor, who has argued that a state may regulate abortion as long as the regulations do not place an undue burden on a woman’s right to the procedure.

“One of the raps against O’Connor from the left is that there’s never been a burden that she doesn’t like,” said Mr. Reuben, who suggests the justices may be seeking to clarify what “undue burden” means.

The justices may be split on whether they want Judge Alito to be involved in the case because of an opinion he wrote about undue burdens in 1991 as a judge on the 3rd U.S. Circuit Court of Appeals. In the case — Planned Parenthood v. Casey — Judge Alito wrote that a Pennsylvania law requiring a married woman seeking an abortion to notify her husband beforehand did not impose an undue burden on the woman.

The Supreme Court later disagreed with him, striking the Pennsylvania law in 1992 by a 6-3 vote.

But the makeup of the high court has changed in the years since, with the additions of Justices Ruth Bader Ginsburg and Stephen G. Breyer appointed by President Clinton and President Bush’s choice of Chief Justice John G. Roberts Jr.

The Ayotte case marks the first major review of an abortion case by the high court since 2000, when the justices declared unconstitutional Nebraska’s ban on partial-birth abortion and upheld sweeping Colorado restrictions on protests at abortion clinics.

A ruling on the Ayotte case is expected in late spring.

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