Legal Background: Abortion and the Supreme Court: Ensuring Women's Health

Ayotte v. Planned Parenthood of Northern New England et al., 04-1144

On November 30, 2005, the U.S. Supreme Court will hear oral arguments in Ayotte v. Planned Parenthood of Northern New England, et al., 04-1144.

The stakes in this case — the first abortion-related case to go before the Supreme Court in five years and the first abortion case to go before the Roberts Court — are great. If the Court accepts the arguments put forth by the New Hampshire Attorney General and the Bush Administration, it could effectively eliminate the requirement that abortion laws must include protections for women’s health. Moreover, it could take away the ability to stop anti-abortion laws, when doctors believe the laws would harm their patients.

The case began as a challenge to a New Hampshire law that prevents doctors from performing an abortion for a teenager under the age of 18 until 48 hours after a parent has been notified. Contrary to Supreme Court precedent, the law contains no medical emergency exception to protect a pregnant teenager’s health. The lower courts struck down the law precisely because of this omission.

A decision by the Supreme Court in this case, however, could reach far beyond New Hampshire, giving all 50 states the green light to prevent doctors from putting their patients’ health first – when that patient is a teen or an adult woman seeking an abortion.

In accepting the case, the Court agreed to consider two legal questions:
• Must abortion restrictions include medical emergency exceptions to protect women’s health?
• What legal test must courts use to decide whether to strike down a law that harms women?

When it comes to women’s health, the Supreme Court has been clear. In an unbroken line of cases stretching back 30 years, from the decision in Roe v. Wade through the ruling in Stenberg v. Carhart five years ago, the Court has consistently held that abortion laws must include protections for women’s health.

Nonetheless, the New Hampshire Attorney General and the Bush Administration are asking the Court to uphold the law without a medical emergency exception. They go so far as to argue that the physician treating a teenager with an emergency health condition should go to court and ask a judge’s permission to perform the necessary abortion. In essence, the government is arguing that sick women should go to courthouses, not hospitals, when they need an emergency abortion.

In addition, the New Hampshire Attorney General and the Bush Administration are asking the Court to significantly limit the ability of doctors and women to block dangerous abortion restrictions. They have urged the Court to uphold New Hampshire’s law, and any other abortion restriction, unless there are no circumstances in which it can be constitutionally applied.

This standard, if adopted, would constitute a radical shift in abortion jurisprudence, one with grave implications for women’s health. In Planned Parenthood v. Casey (1992), for example, the Court invalidated a law that required women to notify their husbands before having an abortion, primarily because of the effect this law would have had on battered women. If the New Hampshire Attorney General and the Bush Administration have their way in the case now before the Court, such a law would not be struck down despite the threat it would pose to battered women. Under this scenario, women or their doctors would have to go to court to seek exceptions for individual women or for groups of women who would be harmed by the law.

But the government goes further. For decades, women and their doctors have been able to go to court to strike down dangerous abortion restrictions before they go into effect and before any woman could be harmed. The government now argues that courts should require doctors to wait until their patients risk immediate harm before coming to court and challenging a dangerous restriction.

If the New Hampshire Attorney General and Bush Administration prevail in Ayotte v. Planned Parenthood of Northern New England et al., we could go from a world in which doctors and women have been able to block dangerous laws to prevent real harm to women’s health, to one in which doctors and individual women would have to go to court, in a moment of immediate need, to seek permission to have an abortion. Under this regime, Roe v. Wade and the right to abortion will remain standing, but women’s health and access to safe and legal abortion will be dangerously compromised.

Plaintiffs in the case are Planned Parenthood of Northern New England, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth, and Wayne Goldner, M.D.

Attorneys for the plaintiffs include Jennifer Dalven, Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, and Diana Kasdan of the American Civil Liberties Union; Dara Klassel of Planned Parenthood Federation of America; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, of Nixon Raiche Manning Vogelman & Leach, PA and Legal Director of the New Hampshire Civil Liberties Union.

Jennifer Dalven, Deputy Director of the ACLU Reproductive Freedom Project, will represent the plaintiffs before the Court on November 30, 2005.

For more information, go to:

Media contacts
Lorraine Kenny, ACLU Reproductive Freedom Project, 212-549-2634
Erin Kiernon, Planned Parenthood Federation of America, 202-973-4975

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