New Hampshire's Parental Notification Abortion Law Challenged in Court

November 17, 2003 12:00 am

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ACLU and Medical Providers Say Law’s Failure to Protect Young Women’s Health is Unconstitutional

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CONCORD, NH – A group of New Hampshire medical providers represented by the American Civil Liberties Union and others today filed a lawsuit in federal court seeking to enjoin enforcement of the state’s recently enacted parental notification statute before it takes effect on December 31, 2003.

“Even when a young woman needs an abortion to save her life, the law stands in the way of her doctor providing the best medical care,” said Jennifer Dalven, Deputy Director of the ACLU Reproductive Freedom Project and a lawyer in today’s case. “The law’s dangerously narrow ‘death exception’ requires a doctor to wait until a young woman is on the brink of disaster before the physician can provide life-saving medical care. The Constitution forbids the government from forcing young women to undergo these risks.”

The law challenged today requires parental notification at least 48 hours before a physician may provide an abortion to a young woman under the age of 18. The law contains no exception to the 48-hour delay for circumstances in which the delay would seriously threaten a young woman’s health. Instead, the law forces physicians to wait to provide emergency medical care until the young woman is facing imminent death.

“What if a teen arrives at the hospital and needs immediate care and we are unable to locate one of her parents?” asked Dr. Wayne Goldner, a Manchester obstetrician and gynecologist. “This law forces me to wait until her condition deteriorates to the point where she is about to die. No law should be allowed to interfere with doctors’ ability to preserve the health and life of their patients.”

The plaintiffs’ legal challenge centers around the law’s failure to protect young women’s health. A similar Colorado law was struck down last year by the 10th Circuit Court of Appeals, precisely because it lacked a health exception.

“In an unbroken line of cases stretching over 30 years, the U.S. Supreme Court and other federal courts have held that a woman has a fundamental right to an abortion to protect her health,” said Dara Klassel of Planned Parenthood Federation of America and one of the lawyers in today’s lawsuit. “In defiance of these rulings, the New Hampshire legislature refused to include a health exception.”

The law requires that even in cases where a minor’s life is threatened, physicians must delay a life-saving abortion until they can certify that the abortion is necessary to prevent the minor’s imminent death.

“Far from protecting teens, this law actually endangers the health and lives of young women who need abortions in New Hampshire,” said Jennifer Frizzell, Public Affairs Director for Planned Parenthood Planned Parenthood of Northern New England. “Instead of allowing doctors to provide emergency medical care, it imposes a 48-hour delay even when such a delay would cause irreparable harm to a young woman’s health. The statute’s failure to provide for, or even consider, a young woman’s health clearly violates federal law.”

The plaintiffs also contend that the statute is flawed for failing to protect the confidentiality of a young

woman seeking judicial bypass under the law. Although the statute provides for a judicial bypass proceeding in cases where young women cannot safely involve a parent, the plaintiffs contend that it fails to set forth any guidelines to guarantee that such proceedings remain confidential. The plaintiffs point out, for example, that the law fails to require that court records be sealed or even that hearings be closed to the public.

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

Lawyers on the case include Klassel of the Planned Parenthood Federation of America; Dalven and Corinne Schiff of the ACLU Reproductive Freedom Project; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, Legal Director of the New Hampshire Civil Liberties Union.

The plaintiffs’ brief is available online at: /node/35394

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