Law Specialists Discuss Pros, Cons of Parental Notification Law

WASHINGTON - Two law specialists discussed their views for and against a parental notification law for abortion that will be heard on Wednesday in the Supreme Court.

On Tuesday, The Pew Forum for Religion & Public life invited a representative from the Family Research Council and the Center for Reproductive Rights to discuss the significance of the Ayotte v. Planned Parenthood case and what it could mean for the future of abortion in the nation.

Sitting at a raised table between the two experts was moderator David Masci, a Senior Fellow at the Pew Forum. He began by noting this was the first time in five years that the Supreme Court had taken up an abortion case.

The New Hampshire law in question requires that at least one parent be notified of his or her daughter’s intention to get an abortion 48 hours in advance of the surgical procedure.

The law allows for a judge to waive that requirement if the abortion provider finds that ending the pregnancy will save the mother’s life. This is allowed if there isn’t enough time to obtain the necessary notification.

The main objection by Planned Parenthood, an abortion provider, and organizations like it, is that the disputed law does not contain a waiver that allows for abortions in order to protect the health of the pregnant woman.

Nancy Northup, president of the CRR went first and said that there was a very clear reason why the New Hampshire law in question should be illegal. It does not contain a medical emergency exception that will let a doctor perform an on-the-spot abortion to spare a teen’s life.

Later Bill Saunders, a senior fellow and director for FRC’s Center for Human Life and Bioethics said the pressing concern is for the underage girl which the law applies to. He stated that the law has consistently shown that minors are in no position to maturely decide for themselves the repercussions of their decisions and need the guidance of a parent.

In the discussion Northup said she was not opposed to the parental notification aspect of the law. Since 1976, when abortion was legalized across the United States, over 35 states have passed similar notification or consent laws that have included medical exceptions, she noted. Why was the medical exception left out this time? She said that opponents are trying to “take an ax to the trunk” of the Supreme Court’s commitment to health.

During his allotted time to speak, Saunders said the law was reasonable, requiring that an unemancipated minor must wait 48 hours following parental notification before having an abortion. He said there were exceptions available. If the abortion provider certifies that the procedure is to prevent death there’s no notice required. If the minor challenges in court to show she is mature enough or if a judge determines if it’s in her best interest, the judge will allow the abortion.

During her time for comments, Northup focused on the issue of medical exceptions and why the Supreme Court had insisted on them ever since the Roe v. Wade decision in 1973.

She stated that the Supreme Court had demonstrated a constitutional commitment to the health of women over the past 30 years in various decisions. When the New Hampshire law which is the subject of Wednesday’s case came before an appeals court early on, that court said it was unconstitutional, applying the precedent of previous cases.

Opponents want a radical change in the Court’s constitutional commitment to health, she said. It was a prime example of attempts to chip away at privacy and abortion rights.

Saunders argued that the New Hampshire law case is not about stripping away abortion rights. It is about noting that there is a distinction between adults and minors. He asked if a health exception was necessary for minors.

Saunder’s main thrust was to point out why minors should be treated differently in the case of an abortion when in many other cases they were required to get a parent's permission. He noted that minors cannot be given aspirin by a school nurse without a parent’s permission; they also can’t go on field trips, get a tattoo, or have surgery performed on them without consent. He said that the issue was that minors could not make such complex decisions on their own.

During their comments they also touched upon a second issue that will come up in the case. The standard by which the law is reviewed by the court.

Northup explained that in over 30 years of rulings since the 1973 Roe v. Wade decision that legalized abortion, the Supreme Court has stopped abortion laws that do not meet the standards that Roe set. Medical exceptions have been one of the standards the Court has used to determine if a law is constitutional on its face.

In the New Hampshire law, the lack of a medical exception was the reason the lower court said it was illegal. If that is not kept, Northup said, then women will have to wait until they’re on the brink of disaster before going to court, she said.

Regarding the standard of review, Saunders said that previous cases had changed the standard used. He feels that the parental notification law will not be judged unconstitutional just because it doesn’t contain the medical exception. He feels the Supreme Court will not apply that standard in this case.

In her rebuttal to some of Saunders arguments, Northup said that although the law views adults and minors differently, the medical problems women and girls encounter are the same. She added that there could even be higher risks with the pregnancies of younger girls. What is the harm of putting in a medical emergency exception, she asked.

Saunders said it goes down to how you treat different people. Women and minors are different, he said, adding that underage girls need parental input. If there is no parental input, he said, then there is recourse to the judicial bypass, where a judge determines whether a girl is mature enough to have the abortion or if not then does what is in her best interest.

To end his main comments, Saunders gave his opinion about what would happen if the law was ruled unconstitutional.

If the law is ruled unconstitutional, he said, a girl seeking an abortion would be deprived of parental involvement and would be at the mercy of the person who impregnated her. He said that such a ruling ends up treating a pregnant minor differently from a minor in any other situation who must seek permission.

He added that if the Supreme Court invalidates the law in question, it would be granting an “almost unbelievably extreme abortion license in this country that is not affected or regulated in any way – even when it comes to minor girls ... even whether or not the parent is notified.”