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John Roberts Jr. has called abortion a “tragedy,” but aside from that one word in a 1985 memo to his White House boss, Roberts’ paper trail on the subject is characteristically sparse. It won’t stay that way much longer. Among the first cases Roberts will hear should he reach the U.S. Supreme Court is what might turn out to be the most significant abortion decision in years, Ayotte v. Planned Parenthood of Northern New England. It will be the first abortion case the court considers since President Bush took office. And Roberts, along with Justice Anthony Kennedy, will likely determine the outcome. Ayotte is not about the legality of abortion per se. Rather it addresses the critical but murky question of how courts should determine the constitutionality of laws that regulate the right to have an abortion. At issue is a New Hampshire law requiring a minor to notify a parent 48 hours before having an abortion. The law was enjoined by a federal judge on Dec. 29, 2003, two days before it was to take effect, a decision that was later affirmed by a federal appeals court. The calculus on the high court, where positions on abortion rights have long since been established, appears set to shift with Roberts’ expected arrival. But that isn’t the only variable at play. The U.S. government has weighed in with a novel but far-reaching argument that would change the constitutional standard for judging abortion restrictions, one which critics charge would turn years of abortion rights jurisprudence on its head. “This is a case in which substantial damage could be done to abortion rights without anyone seriously being able to claim that Roe v. Wade is in danger,” says David Garrow, a legal historian at Emory University. “It’s a real, powerfully original argument the [U.S. solicitor general] is making here,” Garrow adds. “And Roberts is not only indisputably the fifth and controlling vote; so long as Kennedy agrees with him, Roberts will control how far the court majority chooses to take this.” Ayotte is a case that very nearly didn’t happen. The bill at issue passed the New Hampshire Senate two years ago by a single vote, and the New Hampshire House, which has 400 members, by six votes. It also comes from a state with a famous streak of libertarianism and, according to the Alan Guttmacher Institute, a reproductive health research center, the lowest teen birth rate in the country. “It’s odd and unwelcome that New Hampshire would find itself thrust onto the national stage in a case where abortion and women’s health and safety are so threatened,” says Jennifer Frizzell, a former legislative director of Planned Parenthood of Northern New England, the lead plaintiff in the case. “There’s a heritage here of no government intrusion into people’s private medical affairs. “Prior to this legislation passing, New Hampshire had zero laws on the books dealing with abortion,” continues Frizzell, a New Hampshire resident. That is not to say there weren’t attempts each session to pass some form of abortion legislation, including a bill that would have required aborted fetuses to have a formal burial. “There were eight to 12 bills a year that would make the full [legislative] journey, a typical menu of anti-choice initiatives,” Frizzell says. Under New Hampshire law, if a member introduces a bill, it cannot remain bottled up in committee but must have a hearing and go to the floor for a vote. The New Hampshire case is set for argument before the Supreme Court on Nov. 30. Phyllis Woods, a former New Hampshire House member who sponsored the bill, says it was clear when the law was drafted that it would be challenged in court. “We would keep appealing it and they would keep appealing it � all the way to the Supreme Court. That’s not a surprise. What’s a surprise is that the Supreme Court agreed to hear it,” says Woods, who lost her seat in the college town of Dover after the bill passed � payback, she says, for her anti-abortion position. The New Hampshire law pointedly does not include a so-called health exception, which allows parental notification to be waived when a delay would threaten the health of the pregnant minor. Instead notification can be waived only if an abortion is necessary immediately to prevent the pregnant teen’s death and cannot wait for the two-day notification period to elapse. Along with the standard of review for an abortion case, determining whether a parental notification statute must include a health exception is the second question that the Supreme Court has agreed to consider. Opponents of a health exception, which seems to many like a relatively benign and common-sense provision, argue that its effect is to undermine the parental notification provisions entirely. In practice, they say, it’s too easy to come up with a myriad of reasons why a pregnancy might threaten a woman’s physical or mental health. “Why no health exception?” says Tony Soltani, a lawyer, a New Hampshire House member and a strong supporter of the bill. “Because the medical profession, especially the psychiatry profession, would testify that the health of a mother would suffer from post-traumatic stress syndrome if she has the baby.” Woods adds that the health exception was carefully reviewed by the New Hampshire House Judiciary Committee as well as by the full House. But she too believes it would be used to evade the intent of the notification law. “The health exception has been so broadly defined by the U.S. Supreme Court that it would be the exception that swallows the rule,” says Woods. “Anyone knows that compared with a normal situation, pregnancy is an unhealthy situation,” she adds. “I threw up for the first five months of every single day. I say that under this definition I could certainly have an abortion, because it was affecting my health.” Legal experts point out that it still takes a doctor to certify that a woman’s health is in jeopardy without an immediate abortion, and that is not going to happen for a case of pregnancy-induced nausea. “The health exception is based on professional respect and regard for doctors,” Garrow says. “Health is anything a doctor says it is, and neither legislators nor judges should be redefining it. I don’t think it can be abused.” But the bill’s supporters say there’s another reason not to have a health exception: Women who would need the exception are not a statistically significant population. Teresa Collett, a law professor at the University of St. Thomas School of Law in Minneapolis, says the need for a health exception is only hypothetical so far. “The facts are, when we look at the states that actually maintain records, there are no abortions being done on an emergency basis for minors,” says Collett, who filed an amicus curiae brief in favor of the bill on behalf of seven present and former New Hampshire legislators. “The sun may one day rise in the West, but we don’t regulate our lives like that.” Collett points to another amicus brief filed by the Thomas More Society, an anti-abortion public interest law firm in Chicago. According to the brief, citing statistics from various state departments of health, of some 30,000 abortions performed on minors in Alabama, Wisconsin, Idaho, Nebraska, South Carolina and Texas over the past three to seven years, not one medical-emergency abortion has been reported. Numbers, however, are not the point, because the Supreme Court has consistently said that health exceptions are obligatory, says Louise Melling, the director of the American Civil Liberties Union’s Reproductive Freedom Project, which along with Planned Parenthood Federation of America Inc. is leading the fight to declare the law unconstitutional. “You can have restrictions on abortion, but not those which jeopardize your health,” Melling says. Besides, she adds, permitting a doctor to waive a notification requirement only if the minor is about to die, and not if the minor’s health is merely threatened, makes almost no sense. “There’s often great ambiguity whether [a pregnancy complication] will cause death, and if you wait until it will cause death, you risk the woman’s health in the meantime,” she notes. Both a U.S. district court judge and a three-judge appeals court panel, which included the First Circuit U.S Court of Appeals Chief Judge Michael Boudin, agreed with that position. The courts reached back to Roe, flatly declaring that any state restrictions on abortion � whether mandatory counseling, parental notification, or mandatory waiting periods � must have a health exception to be constitutional. “The New Hampshire Act contains no explicit health exception,” the First Circuit concluded in its Nov. 24, 2004, opinion. “Thus, the act is facially unconstitutional.” The U.S. government, however, strongly disagrees with that line of reasoning. The Bush administration took notice of the New Hampshire case largely because of its potential implications for the federal “partial-birth” abortion statute, which also does not include a health exception. (That law was passed by Congress in 2003 and was immediately challenged by abortion-rights groups. It is expected to eventually show up on the high court’s docket, as well.) According to a brief filed by Solicitor General Paul Clement, so-called facial challenges to abortion laws � those seeking to strike down a law by declaring that the statute is “on its face” unconstitutional � have been consistently misapplied, especially since a key 1987 Supreme Court ruling in U.S. v. Salerno, 481 U.S. 739. The Salerno decision involved a criminal statute that had nothing to do with abortion. But it did spell out a clear standard for a facial challenge � the same standard that Clement argues must be applied to an abortion case. To be successful, the plaintiff must show that the law is “invalid in all its applications,” writes Clement in his brief. The confusion, he says, arose from the 1992 abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S 833. That decision upheld the basic constitutional right to an abortion but replaced the heightened scrutiny standard of Roe with a new, slightly lower standard of an “undue burden.” Using that standard, the court struck down a spousal-consent requirement for abortion, arguing that it placed an undue burden on women who lived in fear of spousal abuse. Subsequent abortion cases usually interpreted Casey to mean that an abortion statute should be struck down if any part of the statute placed an undue burden on any woman seeking an abortion. Clement argues that the court never intended the standard it used in Casey to apply to anything more than the spousal-consent statute it struck down. If it had, he says, the court would have made that clear. The Salerno standard, therefore, should be controlling. “Because the court did not purport to modify the facial-challenge standard more broadly, the default rule of Salerno controls here,” he writes, referring to the New Hampshire case. The U.S. government and New Hampshire, represented by its attorney general, Kelly Ayotte, have a lot of help. So far, some two dozen amicus briefs have been filed with the court by many of the country’s leading conservative litigation groups and their representatives, including Jay Sekulow’s American Center for Law and Justice, Liberty Counsel’s Mathew Staver and the Rutherford Institute’s John Whitehead. “On our side we call it ‘abortion distortion,’” says Thomas Marzen, whose Storer Foundation, an affiliate of the National Right to Life Committee, also filed an amicus brief. “There’s this hypersensitivity and, as a consequence, this heightened scrutiny about abortion. We just want it to be a reasonable level of jurisprudence, like any other kind of social problem, no more, no less.” The Supreme Court, of course, may opt to decide the New Hampshire case along the narrowest of lines, crafting a decision that has little precedential value. But if it does agree with the government’s change-of-standard argument, “all abortion litigation would change,” notes University of Nebraska College of Law professor Richard Duncan. “Abortion liberties have always been given a much greater degree of protection; all of them are enjoined within a few hours of going into effect. That’s why people are opening their eyes to this case.” That’s also why they’re scrutinizing the few things Roberts has said over the years that could hint at his personal or legal views on the subject. Asked by his boss, White House Counsel Fred Fielding, whether President Reagan should send a telegram to a memorial service for 16,500 aborted fetuses discovered at a California medical lab, Roberts, after making a few technical changes to the presidential message, said he had no objections. “The president’s position is that the fetuses were human beings, or at least cannot be proven not to have been, and accordingly a memorial service would seem an entirely appropriate means of calling attention to the abortion tragedy,” Roberts wrote to Fielding in an Oct. 4, 1985, memo. Abortion rights activists worry that 20 years later, Roberts still views abortion as a “tragedy,” and may allow that to influence his judicial reasoning. Columbia Law School professor Michael Dorf believes it is unlikely the New Hampshire case will force Roberts to show his hand. But it might, he says, depending on how Kennedy decides to vote. Kennedy will be the key, says Dorf, who clerked for the justice in the 1991-92 term, when Kennedy wrote one of the three majority opinions in the Casey decision. That’s because how seven of the other justices will vote is widely assumed. Justices Antonin Scalia and Clarence Thomas and Chief Justice William Rehnquist will almost certainly vote to uphold the New Hampshire statute, he says, while Justices David Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer will most likely vote to strike it down. If Kennedy joins Scalia, Thomas and Rehnquist in upholding the New Hampshire statute, Roberts can join the majority decision without having to elucidate his own view. But if Kennedy votes with Souter, Stevens, Ginsburg, and Breyer to form a majority, Roberts is in a stickier position. “At that point, Roberts either has to join them, saying that Roe is good law,” says Dorf, “or he has to join the dissent of Scalia, Rehnquist and Thomas, each of whom says Roe is an abomination and should be taken off the books.” T.R. Goldman is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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