November 28, 2005

The Supreme Court Returns to the Abortion Debate: Ayotte v. Planned Parenthood of Northern New England

On November 30, 2005, the U.S. Supreme Court will hear oral argument in Ayotte v. Planned Parenthood of Northern New England, a case that challenges New Hampshire’s Parental Notification Prior to Abortion Act. Ayotte is the first abortion case the court has taken up in five years, and it is the first such case that the new chief justice, John G. Roberts Jr., will hear.

Under the act in question, an abortion cannot be performed on a minor or a woman for whom a guardian or conservator has been appointed until at least 48 hours after written notice has been delivered to at least one parent or guardian. However, a judge can waive the notification requirement under certain circumstances, including if the attending abortion provider certifies that terminating the pregnancy is necessary to prevent the woman’s death and there has not been sufficient time to provide the required notification (the so-called “death exception”).

Planned Parenthood of New England and several other abortion providers challenged the New Hampshire law on the grounds that it does not include an explicit waiver that would allow an abortion to be performed to protect the health of the woman. The respondents also argued that the act’s death exception is too narrowly drafted and could leave physicians confused about their legal responsibilities in cases where a woman might die before abortion providers had a chance to comply with the provision.

New Hampshire Attorney General Kelly Ayotte maintains that the act’s judicial bypass procedure and other state statutes sufficiently protect the health of the minor. The Supreme Court will review this and other arguments, and consider whether the U.S. Court of Appeals for the First Circuit applied the correct standard of review when it ruled the statute unconstitutional in 2004.

The Pew Forum on Religion & Public Life has issued a legal backgrounder on Ayotte, which examines the history and facts of the case as well as the complex legal issues that will come before the high court.