On June 17, 2005, Rep. Marilyn Musgrave (R-CO), introduced the Parental Notification and Intervention Act (H.R. 2971). The measure had five cosponsors and was referred to the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee. No further action was taken. The bill would make it unlawful to perform an abortion on an unemancipated minor under 18, to permit the facilities of an entity to perform an abortion on such minor, or to assist in the performance of an abortion on such minor, unless: there is clear and convincing evidence of physical abuse by the parent; there is written notification to the parents that an abortion has been requested; there is a 96-hour waiting period after the notice has been received by the parents; and there is compliance with provisions allowing any parent to seek a court injunction against the abortion. Exceptions were made for cases where a grave physical disorder or disease would cause the death of the unemancipated minor. Parental notice required the use of certified mail which is personally delivered to any parent. The term “parent” included a legal guardian. This legislation also was introduced in 2003.
Also, see elsewhere in this report: CCPA/CIANA.
Judicial: In 2003 New Hampshire passed the Parental Notification Prior to Abortion Act. The performance of an abortion upon an unemancipated minor would require at least 48 hours written notice to a parent. An exception was made when the physician certifies that the abortion “is necessary to prevent the minor’s death.” The Act included judicial bypass. Planned Parenthood of Northern New England and others challenged the law. On December 29, 2003, two days before the statute was to take effect, U.S. District Judge Joseph A. DiClerico declared the law unconstitutional and enjoined its enforcement. The law judge based his ruling on the determination that the law lacked a health exception and that the life exception was too narrowly drawn. On November 24, 2004, the U.S. Court of Appeals for the First Circuit affirmed the district court actions and agreed with its basic arguments. The case was appealed to the U.S. Supreme Court. On May 23, 2005, the Court agreed to hear the case, now named Ayotte v. Planned Parenthood (No. 04-1144). Oral arguments were heard on November 30, 2005.
On January 18, 2006, Associate Justice Sandra Day O’Connor delivered the opinion for a unanimous Court. The judgment of the Court of Appeals was vacated and the case was remanded for further consideration. Justice O’Connor began: “We do not revisit our abortion precedents today, but rather address a question of remedy.” The lower courts employed the blunt remedy of declaring the statute facially unconstitutional. The Court wanted the lower courts to investigate a narrower remedy. Without question, states can pass parental involvement laws. Forty-four states have done so, though only four states, including New Hampshire, do not have an exception for health. In this case, the state did not dispute, and the Court’s precedents hold, “that a State may not restrict access to abortions that are ‘necessary, in appropriate medical judgment, for preservation of the life or health of the mother.’” The cite is to the Court’s 1992 Planned Parenthood v. Casey decision, which was quoting the Court’s 1973 Roe v. Wade decision. In the New Hampshire case, the state also did not take real issue with the position that in “some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health.” So, the Court inquired, what is the remedy? How resolve the question of a constitutional flaw in a statute? In the Court’s opinion, only a few applications of the statute presented a constitutional problem. In devising a solution, the Court contended, the lower courts should remain faithful to legislative intent. The lower courts can prohibit the statute’s unconstitutional application, but, the Court asked, would legislative intent allow such a solution or would legislative intent show that the legislature would prefer no law at all? On remand the lower courts must determine legislative intent and, consistent with intent, either prohibit unconstitutional applications or declare the statute in toto invalid.