I am finally getting around to my promised post on the oral argument in Ayotte v. Planned Parenthood. Ayotte is about a New Hampshire statute which requires that minors notify a parent 48 hours before obtaining an abortion. The statute provides for criminal and civil penalties against doctors who perform such abortions without ensuring parental notification. The statute includes a judicial bypass provision and an exception where an abortion is necessary to save the life of the mother. There is no exception however where an abortion is necessary to preserve the health of the mother. The lack of any health exception violates the clearly stated precedent of the United States Supreme Court. A major question in this case is whether the entire statute (which was only narrowly passed by the New Hampshire Senate) must be struck down due to the lack of a health exception.
The oral argument is definitely worth a listen. My pal David Souter (a New Hampshire native himself), cornered New Hampshire's Attorney General Kelly Ayotte and forced her to concede within the first couple minutes that the Constitution does indeed require the statute to have a health exception. Ayotte argued however that New Hampshire simply wouldn't enforce the law if a doctor performed an abortion to preserve the minor's health in those "rare" cases when the parents or the judge could not be located in time.
Two aspects of the argument stood out to me: (1) the willingness of those defending the statute to rely on "solutions" to the health issue that are patently unlikely to be of any use during a true health emergency and (2) the so-called judicial conservatives' advocacy of an "activist" solution-- the reading of a health exception into the statute.
Ayotte argued that no health exception was necessary because New Hampshire's "competing harms" defense would protect any doctors who violate the statute during a health emergency. This is patently ridiculous. As Justice Ginsberg observed, no doctor is going to want to rely on having to assert a defense to a criminal prosecution in the first place, even assuming that the doctor understands that the defense is available to him. (There was some joking by the justices about what advice the doctor's lawyer would provide, assuming the doctor's lawyer was on hand in the emergency room.)
As an ex-prosecutor, I can assure you that the "competing harms" defense or its equivalent (at least in my jurisdiction) is hardly ever successful. Being a law geek, I looked up New Hampshire law on competing harms and, sure enough, it's a very tough standard to meet:
For the defense to be available, a number of requirements must be satisfied. The otherwise illegal conduct [in this case providing an abortion without parental notification] must be (1) urgently necessary [to avoid a "clear and imminent danger"], (2) there must be no lawful alternative, AND (3) the harm sought to be avoided must outweigh according to ordinary standards of reasonableness the harm sought to be prevented by the violated statute.
State v. O'Brien, 132 N.H. 587, 590 (1989)(emphasis added); see also N.H. R.S.A. 627:3. In fact, the trial court in O'Brien did not even allow the defendant to raise the competing harms defense in the jury trial because these factors were not present-- so defendant couldn't even argue it to a jury. Clearly, the competing harms defense is a last resort, designed to be difficult to meet.
Most any doctor considering whether to provide an abortion to a minor during a health emergency is going to be extremely reluctant to do so under New Hampshire's statute, even assuming the doctor is aware of the competing harms defense. All three factors quoted above are subject to scrutiny and are likely debatable in any scenario that comes up. A doctor who wants to avoid criminal prosecution and civil sanctions is going to err on the side of declining to provide the abortion. The teenager whose health is at stake -- perhaps her vision or her future fertility -- is going to lose out.
Ayotte-- sounding to me a bit desparate as the justices pounded her with questions -- also volunteered that she would issue an advisory opinion outlining the circumstances in which the statute would or would not be enforced. In other words, she was saying, "Trust me, doctors, trust me, justices, I won't prosecute doctors who violate the statute in emergency situations, so see there's no problem." Of course, her promise is good only as long as she's in office, and it will require her to engage in some analysis, at this point unknown, as to when the exception would apply. It would also put her in the position of legislating through the executive branch and reading into the statute an exception that the legislature did not intend.
Justice Scalia suggested his own solution. He proposed to Planned Parenthood Attorney Jennifer Dalven that New Hampshire simply set up a hotline in which a judge would be available 24 hours a day to provide a bypass in the event of an emergency. He asserted that all that was needed was a "30 second phone call," which the nurse could make while the doctor was donning scrubs for the operation. Dalven responded by questioning the purpose of requiring such a phone call if it was just a matter of a judge rubber-stamping the doctor's decision. Scalia responded that the purpose would be to "save the statute." Scalia seems, as usual, to be completely of touch with the practical realities of how things work in the real world. Dalven was effective in her response: First, saving a statute is not worth the risk to a teenager's health. Second, it's gonna take a lot longer than 30 seconds to find the hotline phone number, make the call, relay the facts to the judge, and give the judge a change to ask questions, consult the law, and make a decision. In an emergency situation, you don't want health care providers to have to jump through these kinds of hoops at the expense of a young girl. But the defenders of this statute seem bent on preserving it at all costs with a blind eye to the potential permanent consequences to a young, frightened teenaged girl in these circumstances.
The other more technical but equally important issue in the case is what the court should do about the blatantly illegal lack of a health exception in this statute. Should the court strike down the entire statute or should the court simply issue an injunction describing those situations in which the statute is unenforceable? Justice Scalia, famed for his judicial conservatism, basically said what's the big deal about reading a health exception into the statute. Justice Ginsberg (joined if I remember correctly by Breyer and Souter) opined that it is not appropriate to read something into the statute that isn't there. It's one thing to cross out one part of a statute, but quite a different thing to put in a "carrot mark" and write something into it that the legislature did not intend -- and there is evidence in this case that the legislature preferred to have no parental notification statute at all, rather than a parental notification statute with a health exception. Hmmm . . . odd that the so-called judicial conservative is so-willing to re-write New Hampshire's legislation for it.
The lawyer from the United States solicitor's office, arguing in defense of the statute, pointed to the case of Wisconsin v. Yoder in which the U.S. Supreme Court simply held a statute requiring compulsory elementary education invalid as applied to the Amish. But that doesn't require any complex analysis of what the exception should be. A rule that if you're Amish you don't have to go to school after 8th grade is awfully simple. Figuring out the parameters of a health exception is a lot more complicated. For example, Justice Breyer proposed the exception should apply any time a doctor "in good faith" believed that an abortion was necessary to protect the mother from serious health consequences-- but then Justice Scalia wanted to add a requirement that "a substantial medical certainty" back up the doctor's determination. As Dalven pointed out, the conflict between Breyer and Scalia highlighted the difficulties of writing something into the statute that wasn't there to begin with.
I know I have some strongly pro-life readers on this site. But even many pro-lifers support abortion when necessary to save the mother from long term health consequences. This is what's at issue in this case. And, frankly, I think even if you are pro-life, you may find it disturbing that the defenders of this statute are so cavalierly willing to put obstacles in the path of a young girl and her doctor who are faced with a potentially serious health crisis. And if your concern is judicial restraint, well then, I would view with some skepticism Scalia's apparent willingness to rewrite New Hampshire's statute to add a provision that New Hampshire didn't want.