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The Supreme Court jumped squarely back into the abortion debate Monday, agreeing to hear an appeal of a New Hampshire parental notification law that does not include a specific exception for the health of the minor. The Court’s decision to hear the case comes against the backdrop of a heated battle over judicial nominations brewing on Capitol Hill and rampant speculation over whether Chief Justice William Rehnquist will retire. At issue in this case is a ruling from the U.S. Court of Appeals for the 1st Circuit in Boston that the New Hampshire law was unconstitutional because it made no explicit exception for the health of the minor except in the case of death. In its 2004 opinion, the 1st Circuit relied on a 2000 Supreme Court opinion that held there is ” a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of a woman’s health.” The 2000 case, Stenberg v. Carhart, was the last major abortion case heard by the Court. In that case, the justices split 5-4 and ruled that a Nebraska “partial birth” abortion law placed an “undue burden” on women who sought to terminate their pregnancy. Rehnquist sided with the minority. The New Hampshire law in question requires that a parent or guardian be notified at least 48 hours before a minor’s pregnancy is terminated. The notification can be either in person or by certified mail. The law, however, includes the option for a judge to waive the parental notification if the judge finds the minor mature and capable of giving informed consent. But the 1st Circuit rejected the idea that the “judicial bypass” could serve as an equivalent to a health exception. In the brief submitted on behalf of New Hampshire Attorney General Kelly Ayotte, the state argues that the law does not need to make an explicit exception for the minor’s health because the judicial bypass provision would ensure a minor would have access to an abortion in a medical emergency and that other New Hampshire laws currently in place would protect the health of the mother. In addition, the state asked the Court to clarify the legal standard used by the courts when examining the constitutionality of abortion laws, arguing that a disagreement exists among the federal circuit courts as to what standard should apply. In its brief, Planned Parenthood, whose challenge to the New Hampshire law prevailed in the 1st Circuit, maintains that in an “unbroken line of cases” the Supreme Court has held that laws that restrict access to an abortion are unconstitutional unless adequate exemptions are made for the health and life of the mother. The organization is represented by Jennifer Dalven, a lawyer with the American Civil Liberties Union in New York. The case, Ayotte v. Planned Parenthood of Northern New England, et al., will be taken up during the Court’s fall term, set to begin in October. Bethany Broida is an assistant editor at Legal Times. She can be reached at [email protected]alm.com.

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