NOW Backs Plaintiffs in New Hampshire Abortion Notice Case

December 7, 2005

The National Organization for Women (NOW) joined in an amicus curiae brief in support of an important reproductive rights case that was heard by the Supreme Court on Wednesday, Nov. 30. The case, Ayotte v. Planned Parenthood of Northern New England, concerns a New Hampshire law, The Parental Notification Prior to Abortion Act, which requires written notice to parents or guardians at least 48 hours in advance of a minor's abortion, and does not provide an exception in the event the young woman's health is in jeopardy.

Planned Parenthood and other abortion providers challenged the act before it took effect, claiming that the lack of an exception for risks to health, combined with the inadequate exceptions for risk to her life, make the act unconstitutional. But even the right to a pre-effectiveness challenge is at issue, because abortion opponents argue that the law can't be challenged until it has actually caused harm, and then only by the individual (or group of individuals) who can prove harm. If the Supreme Court agrees with them, it would be far more difficult to bring constitutional challenges to obviously unconstitutional state laws.

"This case is important because it is a very clever and concise attack on the health exception that has been carved out under Stenberg v. Carhart and related cases," said NOW President Kim Gandy. "If the new Supreme Court line-up under Chief Justice John Roberts finds that the New Hampshire law is constitutional, critical protections for women's health, bodily autonomy and reproductive decisions will soon disappear as other states follow suit."

"Furthermore," Gandy continued, "if the New Hampshire act prevails, the lives and health of young women will be put at risk, and parents who understand this will be appalled to know that their daughters' health and future means so little to those who want to stop abortion at any price. As a parent, I know all parents hope their daughters will confide in them - but not every parent is loving, and in the real world this kind of communication is not always possible, or even reasonable."

The New Hampshire law provides for a judicial proceeding that would authorize a bypass of the notice requirement for a young woman who demonstrates to a judge that she is mature and capable of giving informed consent to the proposed abortion, or that having an abortion would be in her best interest. But it does not provide an exception to the notice requirements for situations where a there is a threat to the young woman's health. The act contains only a narrow exception to the notice requirement when her life is in danger.

Violation of the notice requirement could expose physicians and other health care providers to criminal and civil penalties. So if a young woman appears at a clinic seeking an abortion but has not provided written consent, and yet manages to obtain an abortion, her doctor could be sent to prison.

Gandy noted, "The New Hampshire law is an assault on the medical profession and on its obligation to prevent harm. In many cases, doctors simply will not be able to adequately care for young women when serious medical complications exist."

The District Court ruled the act unconstitutional because of the lack of an adequate health exception, and then the United States Court of Appeals for the First Circuit upheld the ruling. Both courts ruled that a state may not endanger a woman's health when it regulates abortion. The Court of Appeals rejected the state's argument that parental involvement laws are exempt from the constitutional rule, and found that neither the judicial bypass procedure nor general New Hampshire law allowing emergency care without consent would provide a functional equivalent to the required health exception.

The amicus brief that NOW has signed with other reproductive rights and women's health organizations, which was written by Legal Momentum, argues that reproductive rights are essential to women's full and equal participation in society, and that this equality, like freedom of speech, is a public good, not just a personal constitutional right. It is crucial that the Supreme Court protect women's equality, and not allow this constitutional right and public good to be trampled on.