- The Washington Times - Tuesday, November 29, 2005

An abortion test begins today for the Roberts Supreme Court, one that will shed some light on whether the Roberts years are likely to be genuinely conservative ones.

Ayotte v. Planned Parenthood of Northern New England — a case about New Hampshire’s parental-consent laws — will have practical consequences for states that reject the no-questions-asked abortion culture. At immediate issue is whether state parental-consent laws must make exceptions for an underage mother’s health, not just her possible death, as New Hampshire’s 2003 law did. New Hampshire was one of only five states nationwide whose law did not make the health exception. Last year, when the 1st Circuit Court of Appeals in Boston threw it out, New Hampshire’s law had not yet gone into effect.

The most important question the court will consider, then, is this: Will the Roberts court endorse the 1st Circuit’s strict interpretation of the health-exception rule? In the past, more liberal Supreme Courts have upheld parental-notification laws, but the court has not ruled definitively on what health-exception rules are required by the Constitution when a state passes a parental-notification law. Stenberg v. Carhart, a 2000 ruling on a Nebraska abortion statute authored by Justice Stephen Breyer, befuddled the issue by ignoring standards set in the cases U.S. v. Salerno (1987) and Planned Parenthood v. Casey (1992).

It should be noted, though, that there’s more to the case than just whether health exceptions must exist in parental-notification laws. Looming in the background is a hugely important procedural question: Did the court in Boston overreach? Specifically, was it justified to throw out New Hampshire’s parental-consent law before the law even took effect?

That seemingly technical question matters greatly. The 1st Circuit effectively pre-empted New Hampshire’s lawmakers and governor from so much as testing out a parental-notification arrangement with a death-only exception. Since the Supreme Court has yet to forbid this and could yet sanction it, it’s worth examining why the 1st Circuit thought it could throw it out.

This case asks the court to force New Hampshire to join the 38 states that make exceptions for a pregnant woman’s health, not just her risk of death. We know how a conservative court would rule on this question. How will the Roberts court rule?

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