- The Washington Times - Thursday, January 19, 2006

The Supreme Court ruled unanimously yesterday that lower courts erred when declaring New Hampshire’s parental-notification abortion law unconstitutional, saying only portions of the law pertaining to medical emergencies warranted review.

Justice Sandra Day O’Connor, writing for all nine justices, said states “unquestionably have the right to require parental involvement” when a minor has an abortion, and sent the case back to the federal appeals level for further hearings.

“Lower courts need not have invalidated the law wholesale,” she said, adding that “only a few applications” of New Hampshire’s parental-notification law “present a constitutional problem.”

New Hampshire’s 2003 law also included provisions such as requiring abortionists to notify at least one parent 48 hours before performing the procedure, and the justices said lower courts erred in striking down those measures over the medical emergency issue.

“We prefer … to enjoin only the unconstitutional applications of a statute while leaving other applications in force,” she said.

The justices, however, did not rule on whether the lack of a medical emergency exception was itself unconstitutional. Instead, Justice O’Connor wrote, “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.”

Parties on both sides of the issue claimed the ruling as a victory.

“We are relieved that the Supreme Court left in place protections for women’s health and safety in abortion laws,” said Karen Pearl, interim president of Planned Parenthood Federation of America Inc. “We continue to believe that the law should be struck down by the lower court.”

New Hampshire Attorney General Kelly A. Ayotte, who petitioned the Supreme Court to review the case, also said she was pleased with the outcome because the justices “adopted New Hampshire’s argument that the court should not have struck down the entire statute when a more narrow remedy could be crafted.”

But in its first abortion ruling in five years, the high court steered clear of any dramatic review of the issue.

Forty-three other states have laws requiring some degree of parental involvement when a minor seeks an abortion. New Hampshire’s law allowed the 48-hour waiting period requirement to be waived if the minor gets alternative permission from a judge or if the abortion is needed to prevent the minor’s death.

But no explicit exception is made for a minor facing a non-life-threatening medical emergency, a feature shared by laws in Minnesota, Missouri, North Dakota and Wyoming.

Planned Parenthood of Northern New England challenged the law’s constitutionality in federal court, saying the lack of medical emergency language violated the right to abortion guaranteed by the 1973 Roe v. Wade ruling.

A federal district court and a federal appeals court agreed, but both ruled that the entire law — including the general 48-hour notification requirement — was unconstitutional.

In sending the case back to the 1st U.S. Circuit Court of Appeals in Boston for further review, the Supreme Court reprimanded the lower courts for choosing “the most blunt remedy” in their earlier rulings.

When the case returns to the appeals court level, Ms. Ayotte said, the state would argue for “a narrowly crafted injunction to address emergency cases, and then the rest of the act would stand as written.”

In other Supreme Court action yesterday, the justices:

• Ruled unanimously to allow a lawsuit filed by a New York computer software company to go forward against six agents of the former U.S. Customs Service. The company argues it was driven out of business because agents damaged its computers while mistakenly targeting its owner’s husband in a child pornography case.

• Ruled unanimously that a federal appeals court erred by overruling a state appeals court’s finding that California prosecutors had violated no laws in striking a young black woman from the jury pool in a state-court trial. The state appeals court had found that the prosecutors had sufficient reason other than race. The federal appeals court reversed the ruling, a move the justices reversed back.

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