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Supreme Court: Court shouldn't have thrown baby out with bathwater (pardon the metaphor)
Just because New Hampshire's parental notification law "may be applied in a manner that harms women's health" doesn't mean it's all bad and should be thrown out entirely, the U.S. Supreme Court ruled today.

The decision, written by Justice Sandra Day O'Connor, was short and unanimous. That in itself is shocking, given the justices' significant differences on abortion issues.

But the Court's ruling is significant in other ways, too. The justices unanimously agreed that "states unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their 'strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.'"

They also unanimously agreed that a state may not restrict access to abortions that are "necessary, in appropriate medical judgment, for preservation of the life or health of the mother," and that "in some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health."

New Hampshire officials argued that the state law and other state regulations allowed for those immediate abortions. Lower courts disagreed and threw out the state's 2003 Parental Notification Prior to Abortion Act.

That's where the courts went wrong, the Supreme Court said. "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem," O'Connor wrote. "We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact."

It's not surprising that the courts "chose the most blunt remedy" and tossed out the whole act, O'Connor said. After all, "we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw." That would be the 2000 Stenberg v. Carhart ruling against Nebraska's partial-birth abortion ban. "But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn," O'Connor wrote. New Hampshire did make such a request, so "the lower courts need not have invalidated the law wholesale. … Only a few applications of New Hampshire's parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case, the lower courts can issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application." The justices sent the case back to lower courts to do so.

Pro-life reaction so far has been positive.

Family Research Council's Cathy Cleaver Ruse called the ruling "a win for the pro-life movement. New Hampshire's law will remain in effect and New Hampshire's teens will be better protected from exploitation inherent in secret abortions."

Not only that, said FRC president Tony Perkins, but the ruling "gives great momentum to other states looking to protect parental rights and safeguard the health of underage girls. It should also impart fresh momentum to passage of the Child Interstate Abortion Notification Act."

"The Court's ruling appears to be subtle," said Liberty Counsel Mathew Staver, but "the implications of the case mean that it will be far more difficult for courts to strike down abortion legislation in its entirety when a narrow ruling is permissible. Courts have frustrated legislators by striking down abortion laws when only a narrow portion of the law could have been stricken. Although the time will come when the high court will revisit its abortion precedents, the Court's decision is a major victory for future abortion legislation. Untold numbers of babies have lost their lives as a result of courts broadly striking down laws based upon rare applications to unusual circumstances. In the future, most of these laws will be allowed to operate to protect life in 99 percent of the cases, while the 1 percent of questionable applications will be stricken. I believe this case lays the foundation to chip away at Roe v. Wade."

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January (Web-only) 2006, Vol. 50