AYOTTE ORAL ARGUMENT: DEFENDERS OF PARENTAL NOTIFICATION STATUTE CAVALIER ABOUT MOTHER'S HEALTH AND ABOUT AN ACTIVIST SOLUTION

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. 

Comments

[NBlack]

Your last sentence made me laugh--because it's so true and so typical of the "Right". I just outlined a case on my blog from the First Appellate Division of NY wherein the Court held that the NY laws re: marriage that don't provide for homosexuals to marry did not violate the NY Constitution. In doing so, the (Conservative) majority chastized the lower court for the doing the same thing that Scalia proposed, stating:

"However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court's constitutional mandate and usurped that of the Legislature."

Hypocrisy with a captital "H".

And, I just stumbled upon your blog recently. I like it a lot.

[Richard]

Put away the law books on this one. They’re of little use. I sense you’re taking the legal aspects of this case too seriously. The argument before the Court was only coincidentally about emergency situations, and all the players (including the justices) know it. To listen to it with this fact in mind is to listen to a well-rehearsed theatre play. Everyone was in character and so predictable that the law was rendered as mere stage direction. How can you cite caselaw as if it matter on this one?

I’m a conservative pro-choicer (yes, it is possible), and yet Scalia is right when he suggests that a practical solution to the (extremely rare) emergency situations could be found. What he is wrong about (and he knows it) is that nobody really wants a solution to the emergency situation. (I imagine he posed the question precisely for that reason.) The emergency situation is being played because that’s all there’s left right now after years of political wrangling. In the eyes of the choicers it’s the lifers exposed flank they want to exploit, and the lifers are afraid of the whole line crumbling piece by piece if the emergency situation is too broadly adopted. That is all that matters in this case, nothing else.

You also wrote, “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.” I nearly laughed out loud at that line because after (correctly) taking Scalia to task for adopting the judicial activist position to the statute, you didn’t even blink when you wrote it. I mean, are you that dogmatic that you can’t see the irony in the Ginsberg/Souter/Breyer strict constructionist stance as you could with Scalia’s activist position?

[William Sunderhahl]

It boils down to the anti-abortion folk not wanting to leave it to case law to determine, as
vaguely as a series of separate court opinions does, what "emergency" means. They don't want
any wiggle room in the statute. You are right-- it is amazingly callous.
The strategy of the right, apparently nationwide, is to restrict access to abortion so severely
that, in effect, Roe becomes irrelevant. Anti-abortion sympathizers on the highest court surely
would welcome more chances to make that aim a reality, which a rightwing majority would assure.

Though it is seldom mentioned in the press, it is clear (to me at least) that the fundamentalist right's fear of sex, teenage or adult, plays a fundamental role in their program. I started having sex at 16, my girlfriend was 15. I did not then nor do I now see anything wrong with sex. Protect yourself from disease and practice moderation and what in God's name is wrong with it?
Amazing how the right believes that if some church pastor gives his okay via marriage, then sex, previously a grievous transgression akin to perversion, suddenly becomes a sanctified foundation of living. Wow, the perverson of lust is transformed into a divine directive! Astounding! How do they do it?------- No hypocrisy there, oh no.
Before the sanctfication, if the same urge is allowed to run its course, it is to be punished, and one way to accomplish that is to outlaw abortion. God's will.
Bill Moyers is right, the delusional has become mainstream.

[Nicole Black]

I do agree with the 2 posters above re: the fact that neither side of the abortion debate is really laying their cards on the table--that's it's all a show of sorts with two very different intended results. I think Alito's words from a DOJ memo from the mid-80s sums up the pro-life intent quite nicely: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling Roe v. Wade ... and in the meantime, of mitigating its effects."

[The Happy Feminist]

Richard, I agree that pro-choicers would prefer not to see parental notification at all, and of course, the pro-lifers want to restrict abortion as much as possible. That doesn't mean the legal arguments are irrelevant. The Planned Parenthood attorney admitted, as she must under the law, that she would be satisfied with a parental notification statute that permits a doctor to provide an immediate emergency abortion without notification when he believes "in good faith" that it's necessary.

I actually did think long and hard about the Justice Ginsberg sentence -- but I don't know that her stance in this argument really contradicts anything she has said or done before. I am no constitutional scholar but I know that she has, for example, invalidated far, far fewer statutes than either Scalia or Thomas. Frankly, I don't think any Supreme Court justice has ever been wholly consistent in his or her theory of interpretation, but Scalia-lovers are the ones trumpeting his "judicial restraint" and condemning the "judicial activism" of the more liberal members of the court.

[The Law; Our Law: is Law]

Tough Subjet - No Doubt.

But, in defense of the defense-the complete defense-of "competing harms"; See

THE STATE OF NEW HAMPSHIRE v. LAURENT L'HEUREUX

Case No. 2003-242:
Argued February 11, 2004

Opinion Issued: April 23, 2004

Which may have been overlooked at research time.

[The Happy Feminist]

Right. This case makes the competing harms slightly less stringent. It clarifies that a person may break the law to avoid an imminent danger if there is no REASONABLE lawful alternative, and the other prongs of competing harms are satisfied. My analysis remains the same despite this slight lessening of the competing harms standard.

[Brian H.]

I would like to recommnend use of the word "woman" instead of "mother" in the context of this topic, as a pregnant woman is not a mother before she gives birth, and a pregnant woman gets an abortion, not a mother. I believe it is the fairest and most accurate term, and I promote it through my own everyday conversations, and hope others will, too.
Thanks for your consideration.
BH

[jose gomez]

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