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Considering its first abortion case in five years, the Supreme Court on Wednesday seemed ready to apply its pro-abortion rights precedents to rule against a New Hampshire parental notification law. During oral arguments in Ayotte v. Planned Parenthood of Northern New England, several justices criticized the law because it fails to spell out an exception that would allow doctors to perform abortions quickly in medical emergencies without having to contact parents or a judge. Abortion rights supporters emerged from the Court cautiously optimistic about the outcome. “The chances that the New Hampshire law will come out of this intact seem very small,” said Steve Shapiro, legal director of the American Civil Liberties Union, which represented challengers to the New Hampshire law. Some even ventured to guess that the decision will be so uncontested internally that the Court could hand it down before Justice Sandra Day O’Connor retires. Barring major controversy, Samuel Alito Jr., President George W. Bush’s nominee to succeed her, could be confirmed by the Senate and sworn in by late January, at which point O’Connor would depart. Ordinarily that would be too soon for a case argued Wednesday to be finished — but not if the vote is lopsided. “There is no indication that the Court will split 5-4,” said David Garrow, a Cambridge University professor who has chronicled the Court’s abortion jurisprudence and who attended Wednesday’s argument. “It all comes down to the Court forcing New Hampshire to create a medical-emergency procedure.” The Supreme Court could accomplish that quickly by remanding the case to the 1st U.S. Circuit Court of Appeals, which struck down the entire law last year. The Supreme Court chamber was packed Wednesday, in part because it was the first occasion to see Chief Justice John Roberts Jr. handling an actual abortion case — after he carefully avoided the subject in confirmation hearings in September. Roberts actively questioned lawyers for both sides, and only once seemed to tip his hand in favor of the New Hampshire law, which requires parental notification 48 hours before an abortion can be performed on a minor. The notification can be waived if a doctor certifies that the abortion is needed to prevent the patient’s death. When Justice John Paul Stevens suggested it would not have been hard for the New Hampshire Legislature to write the law with a clearer exception for medical emergencies, Roberts suggested the legislators might have felt it was unnecessary. But Roberts also indicated he was sympathetic to concerns by physicians about what to do in medical emergencies. New Hampshire Attorney General Kelly Ayotte, who defended the state’s law, appeared caught off-guard by the heavy attack from several justices on the medical-emergency issue. Justice Stephen Breyer offered a vivid hypothetical of a 15-year-old girl who shows up at a hospital at 2 a.m. on a Saturday seeking an abortion. She has high blood pressure, and the doctor feels an abortion is necessary immediately, not to save her life but to protect her health and future fertility. “What’s supposed to happen?” Breyer asked. Ayotte said the abortion could take place under a “competing harms” balancing test and a judge could be called under the law’s judicial bypass procedure. But justices seemed wary, stating that because the law is not explicit, physicians might be reluctant to perform abortions in medical emergencies for fear of losing their licenses or of being sued. Adding to his hypothetical, Breyer asked what a physician would do if “he happens to have his lawyer with him.” O’Connor and Justice Ruth Bader Ginsburg were concerned that physicians would expose themselves to litigation by performing abortions in medical emergencies. “The real problem here is the doctor on the line,” said Ginsburg. An issue in the case that loomed large before the arguments was the standard the Court should use in assessing so-called facial challenges to abortion laws — challenges filed, as in New Hampshire, before the law actually takes effect. Abortion rights opponents urged use of a strict standard under which a law restricting abortion could be struck down in a facial challenge only if the law has no applications that are constitutional. But at the arguments Wednesday, most justices seemed content to apply a standard that would make it easier for abortion restrictions to be struck down if they merely place an “undue burden” on a woman’s right to an abortion. That standard was applied in the 1992 case Planned Parenthood v. Casey, a precedent that upheld Roe v. Wade and seemed to be embraced by most justices Wednesday. By the time American Civil Liberties Union lawyer Jennifer Dalven rose to speak on behalf of challengers to the New Hampshire law, she seemed to have an easier task before her. She repeatedly said that in medical emergencies “every minute is critical,” so physicians should not be required to contact a judge before performing an abortion. Once a patient arrives in an emergency room, she said, “it is too late to go to court.” Dalven tried to encourage the justices to go beyond merely remanding the case on the medical-emergency issue. An order that in effect rewrote New Hampshire’s law, she said, would “remove any incentive” for states in the future to write abortion laws that are constitutionally sound. Editor’s note: See related article, As Reagan Lawyer, Alito Outlined Strategic Response to Landmark Abortion Ruling.

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