US Supreme Court Rules Lower Court to Decide Notification

In essence, the Supreme Court's ruling said parental notification is legal, but it must have a health exception.

That exception would allow a physician to side-step notification in cases where a girl's health is at risk.

The New Hampshire Legislature drafted and passed the bill without any such exception.

In its ten page opinion, the court chastised lower courts for throwing out the entire statute rather than offering a health exception remedy.

And the Supreme Court is ordering the 1st Circuit Court of Appeals in Boston to come up with a solution.

It's directing the Boston court to consider one key question: would the legislature prefer the bill with a health exception, or no bill at all.

That may seem like an easy question to answer, but New Hampshire lawmakers are divided over what exactly their intent was.

Those who opposed the bill, like Representative Terri Norelli, have one view.

1:22 I think there is no question whatsoever based on media coverage, direct quotes from Rep. Woods and Rep. Wendleboe that it was their express intent not to include a health exception.

Over the months the issue was debated, many lawmakers who supported the bill said they opposed a health exception.

Representative Fran Wendleboe debated the issue on NHPR's the Exchange last June.

:00 under some of the cases the health exception is so broad that it not only includes the physical health but emotional health, financial health and we feel it went too far and it was very specific we did not put in a broad health exception b/c the person deciding the health exception and whether it applies is the abortionist.

But, Wendleboe added that she believed the provision protecting a young woman's life provided for any medical emergencies.

The presence of that provision is one reason why Attorney General Kelly Ayotte believes lawmakers would support parental notification that carved out an emergency medical exception.

8:10 we stated the Legislature would have passed this law, even if it had not been enforced in the cases of a true medical emergency. If you look at the House and Senate journals, which is in our view the best measure of legislative intent, there is no indication in those journals that the legislature would not have passed the law to account for this small category of emergencies.

If lawmakers are willing to live with a health exception, even if the original law lacked any such language, what would the parameters of the exception be?

That is the question proponents and opponents are asking themselves.

And both sides point to the Supreme Court decision to bolster their cases.

AG Ayotte points to court language that "in some very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health."

16:57 the S.C. was careful in its language in saying if medical emergencies arise, where sig. health risks, meaning physical health risks to a minor arise, that is the context to which the concerns about this act arise. Not necessarily a cold, not necessarily lesser health concerns. The language in the court's opinion is very specific about that, that will provide the guidance to the lower courts about what kind of remedy to provide.

But that's not what the plaintiff in the case, Planned Parenthood of Northern New England believes.

Public Affairs Director Dawn Touzin says the court articulated the precedent its established around health exceptions and it doesn't say anything about emergencies.

2:45 we are calling for what has been established by the court in precedent.

3:02 anything that AG Ayotte would argue that provides less protection than that, would not be in accordance with what the S.C. order indicates.
Harvard Law professor Lawrence Tribe says the opinion has sent everybody scrambling.

He says both sides were hoping to have the law either upheld as it stood or struck down completely.

7:15 both thought it was to their advantage to argue that the legislature wanted all or nothing. That it would never have been satisfied with 99.9% of the loaf. But I think now, when push comes to shove, that will really be the conclusion are low.

Now the debate turns to the more technical questions of legislative intent and the definition of a health exception.

The Appeals court is expected to begin moving on the case in a month.

For NHPR News, I'm DG.