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Avoiding a major showdown on abortion rights, the Supreme Court on Wednesday unanimously ordered a lower court to find a way to remedy flaws in New Hampshire’s parental notification law without necessarily declaring the entire law unconstitutional. The decision in Ayotte v. Planned Parenthood of Northern New England gave both sides in the abortion debate something to like, by leaving intact its abortion precedents aimed at protecting a mother’s health while detailing how New Hampshire’s law can be salvaged after being struck down by the U.S. Court of Appeals for the 1st Circuit last year. “It is a rebuff to an overreaching lower federal court,” said Clark Forsythe of Americans United for Life, which filed a brief in support of the New Hampshire law that prohibits doctors from performing abortions on minors until 48 hours after a parent or guardian is notified. “Today’s decision tells politicians that they cannot jeopardize women’s health when they pass abortion laws,” said American Civil Liberties Union lawyer Jennifer Dalven, who argued against the law when the case was heard Nov. 30.
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“We do not revisit our abortion precedents today, but rather address a question of remedy,” wrote Justice Sandra Day O’Connor. “We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.” The brief 10-page decision may have been O’Connor’s valedictory writing on the Supreme Court. The Court will sit only one more time, next Monday, before recessing until Feb. 21, by which time nominee Samuel Alito Jr., if confirmed, is expected to be on the bench in her place. The Senate Judiciary Committee is scheduled to vote on Alito’s nomination next week. As such, the ruling also could be the culmination of strenuous efforts inside the Court to paper over differences so the Court could be unanimous in O’Connor’s final ruling on an issue that was a recurring theme in her jurisprudence. Abortion opponents Justices Antonin Scalia and Clarence Thomas may have decided “not to make a fight until it matters,” said Vikram Amar, professor at the University of California Hastings College of the Law. “It may have been a parting gift.” Forsythe also says that assigning O’Connor the decision “might have been the only way to get a unanimous opinion.” It is rare, if not unprecedented, for an abortion ruling from the Supreme Court to be unanimous. The 1st Circuit, in its ruling last year, struck down the state’s entire law requiring parental notification for minors seeking abortions, because it failed to provide an exception for medical emergencies in which the mother’s health would be threatened. The law did make an exception if the mother’s life was in jeopardy. O’Connor stressed that “under our cases it would be unconstitutional to apply the act in a manner that subjects minors to significant health risks.” But, she said, striking down the whole law was “the most blunt remedy.” She did not blame the 1st Circuit for taking that approach, however, because the Supreme Court did exactly the same thing and for the same reason in Stenberg v. Carhart, which invalidated all of Nebraska’s partial birth abortion law in 2000. “But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn,” O’Connor said. As a general rule, O’Connor also wrote, “We try not to nullify more of a legislature’s work than is necessary,” so as not to thwart the intentions of the public’s elected representatives. In the case of the New Hampshire law, O’Connor said, “only a few” of its applications present a constitutional problem. As a result, she wrote, the lower court could issue a declaratory judgment and an injunction prohibiting “unconstitutional application” of the law. O’Connor did hold out the possibility that the lower court on remand could determine that New Hampshire would prefer to have no law at all rather than an amended one, so it is still possible that New Hampshire’s law could fall. Cambridge University professor David Garrow said the Court’s invitation to the 1st Circuit to enjoin only part of the law could lead to more abortion litigation in the future and could affect pending cases challenging the federal partial birth abortion law. “It can be read as almost an explicit invitation for states to revive or repass restrictions that previously have been struck down in toto,” said Garrow, a student of the Court’s abortion rulings.

Tony Mauro can be contacted at [email protected].

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