- The Washington Times - Wednesday, November 30, 2005

A never-enforced New Hampshire law requiring parental notification for minors seeking abortions is unconstitutional because it makes no exception for girls facing health risks, a lawyer challenging the law told the Supreme Court yesterday.

If lawmakers had included such a “medical emergency exception” in the 2003 law, “we could have all gone home,” said Jennifer Dalven, a lawyer for Planned Parenthood of Northern New England in the first abortion case to reach the high court in five years.

New Hampshire Attorney General Kelly Ayotte argued otherwise, saying the law already makes a direct exception if a minor’s life is in danger and allows for a judge to waive the notification requirement in cases involving “health” emergencies.

Dozens of activists on both sides of the issue rallied on the steps of the Supreme Court as the justices heard that case and another involving the right of pro-life groups to demonstrate outside clinics without fear of prosecution or being sued for damages.

The second case surrounds a 20-year-old legal battle over whether federal extortion and racketeering laws — including the Racketeer Influenced and Corrupt Organizations (RICO) Act — can be used to ban local protests organized by national pro-life leaders.

The National Organization for Women and other groups have argued that the laws should be applicable if pro-life activists are running a nationwide enterprise engaged in a pattern of criminal acts, specifically blockades of abortion clinics.

The justices, who yesterday seemed eager to avoid delivering an opinion that could have unintentional consequences for enforcement of extortion and racketeering laws, are expected to deliver a ruling in the case in the spring.

In the New Hampshire case, meanwhile, the justices asked sharp questions about why the state had passed a parental-notification law that included a specific exception if an abortion was “necessary to prevent a minor’s death,” but not if her health was in danger. The court previously has ruled that similar statutes, including spousal-notification laws, must include both death and health exceptions.

Justice Stephen G. Breyer asked what would occur if a pregnant 15-year-old arrived at a clinic with very high blood pressure and a doctor determined the girl’s future fertility would be jeopardized unless she had an abortion.

Justice Antonin Scalia suggested that the girl could easily still get the abortion without telling her parents by having the doctor phone a judge to waive the requirement.

“It takes 30 seconds to place a phone call,” he said.

But Justices Sandra Day O’Connor and Anthony M. Kennedy raised questions about what would occur if the doctor was unable to reach a judge quickly, and Justice Ruth Bader Ginsburg said “the real problem” was “for the doctor who’s on the line.”

At stake is a review of how far 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. The justices were told 24 states mandate parental approval and 19 states require parental notice.

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