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The state of Idaho is asking the Supreme Court to revisit the abortion issue in the context of medical emergency. The Court will consider the issue at its March 24 conference when it decides whether to grant review in Wasden v. Planned Parenthood of Idaho. Wasdenaddresses an Idaho abortion statute’s medical emergency provision, which states that minors 17 years old or younger may receive an abortion without obtaining parental or judicial consent if they experience a medical emergency. At issue is the specific language defining a medical emergency and also the “medical judgment” standard for the physician who determines the emergency. The statute defines medical emergency as a “sudden and unexpected” or “abnormal” physical condition that complicates the minor’s pregnancy, necessitating an abortion. Judge Marsha Berzon, writing for a unanimous U.S. Court of Appeals for the 9th Circuit, held in a July 2004 opinion that the language was unconstitutional because it places an obstacle before a minor seeking an emergency abortion based on a medical condition. The Supreme Court has ruled that a woman has a constitutional right to have an abortion before the fetus is viable and to terminate her pregnancy if it poses a risk to her life or health. “The 9th Circuit looked at testimony and the statute and said it was impermissibly narrow because it wouldn’t cover all conditions where a woman’s health or life is threatened,” says Helene Krasnoff, a staff attorney for Planned Parenthood and lead counsel in the case at the trial and appellate court levels. Krasnoff says the statute does not take into account medical problems identified early in a pregnancy that do not materialize until later. A minor diagnosed early in her pregnancy with a cardiac condition, for example, may not have complications until later on, at which point her condition is no longer “sudden or unexpected” under the statute, Krasnoff says. The minor cannot receive an emergency abortion absent consent, she says. Idaho Attorney General Lawrence Wasden is challenging the 9th Circuit’s opinion on the state’s behalf. In his brief, Wasden argues in favor of the District Court, which ruled the statute constitutional because the words sudden, unexpected, and abnormalcould be interpreted in a manner that did not threaten the minor’s health. Wasden argues the words suddenor unexpectedmerely help define emergency. Jeremy Chou, Idaho deputy attorney general and counsel of record, says the 9th Circuit got it wrong: “Rather than giving the legislature the presumption it deserves in passing constitutional laws, it did the opposite.” Berzon, author of the 9th Circuit’s opinion, worked on abortion-related cases as a lawyer in private practice and is a former vice president of California’s chapter of the American Civil Liberties Union. Conservatives delayed her judicial appointment for nearly two years because of her stance on issues such as abortion. The other judges on the panel included Michael Daly Hawkins and M. Margaret McKeown. Idaho is also appealing the court’s ruling striking down the “medical judgment” standard, which allows an emergency abortion only when the situation is so urgent that the physician cannot obtain consent. “There’s a state interest in keeping families involved in family decisions, especially as important as decisions for a minor,” says Chou, adding the circuits have split on the issue. “A 14-year-old needs permission to go on a field trip.” OTHER CASES UP FOR REVIEW • Kebede v. Gonzales , No. 04-280: Whether a federal court of appeals may decline review of the Board of Immigration Appeals’ decisions and whether the petitioner in this case failed to prove necessity of asylum from Ethiopia. • Belleque v. Lounsbury , No. 04-576: Whether defendant’s state court appeal served as sufficient grounds for his arguments in his federal habeas corpus appeal. • Franklin Savings Corp. v. United States , No. 04-693: Whether the federal government’s seizure of a solvent banking institution constitutes a taking under the Fifth Amendment. • Chomic v. United States , No. 04-694: At what point does a wrongful death claim under the Federal Tort Claims Act accrue? • Tarver v. Bo-Mac Contractors Inc. , No. 04-837: What is the meaning of the “moment of injury” under the Longshore and Harbor Workers’ Compensation Act? • Evanston, Ill. v. Franklin , No. 04-856: Whether the government must inform an employee of his or her immunity from prosecution for answering questions posed and whether failure to provide such warning constitutes a violation under 42 U.S.C. §1983. • Lockhart v. United States , No. 04-881: Whether the Social Security Act and Debt Collection Improvement Act preclude states from offsetting portions of Social Security benefits to pay outstanding student loans. • Spirko v. Bradshaw , No. 04-972: Obligation of prosecutor to disclose exculpatory and documentary evidence to the defense and the petitioner’s right to a hearing when disclosure has failed. • Troy Publishing Co. v. Norton , No. 04-979: Whether the First Amendment protects the media when they publish questionable allegations leveled against public figures. • Toro Co. v. White Consolidated Industries Inc. , No. 04-981: What is the meaning of the “disclosed but not claimed” rule and flexible bar in patent law? • Virginia Department of State Police v. Washington Post , No. 04-999: When the public seeks to access a sealed court document that is part of an ongoing criminal investigation, does the First Amendment presumptive right of access apply? • United States ex rel. Dingle v. BioPort Corp. , No. 04-1017: Whether a qui tamaction under the False Claims Act was properly dismissed because of public disclosure of the issue. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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