On abortion, court finds middle ground

The US Supreme Court is staking out an elusive middle ground in the raging battle over abortion.

In a surprising compromise move supported by all nine justices, the high court on Wednesday avoided ruling on the merits of upholding or striking down a New Hampshire law that requires a teen to inform a parent before obtaining an abortion.

Instead, the justices sent the case back to the lower court to reconsider whether it was appropriate for it to strike down as unconstitutional the entire parental notification law, or whether only part of the law should be enjoined.

The 10-page decision was announced by Justice Sandra Day O'Connor, who has been the high-court architect of the constitutional provisions at the center of the case.

At issue in Ayotte v. Planned Parenthood of Northern New England was whether the New Hampshire law created an undue burden on a woman's right to an abortion, and whether the lack of a broad health exception in the notification law rendered the entire law unconstitutional.

In what might be one of her last public actions as a Supreme Court justice before her anticipated retirement, Justice O'Connor assumed the role of constitutional diplomat rather than her usual position as a key swing voter in abortion cases.

Legal analysts had expected the New Hampshire case to leave the high court sharply divided. Some had suggested that the outcome could shift significantly to the other side if the case was reargued with Bush nominee Samuel Alito voting in place of O'Connor.

Instead of attacking the central issues head-on, O'Connor and the rest of the justices appear more intent on compromise than finality, analysts say.

"The No. 1 thing is that this is the entire court - especially O'Connor - again trying to turn down the temperature on the issue and force both sides toward the middle," says David Garrow, a Supreme Court historian. "This is the court saying: We don't want to give either side all or nothing. We're going to force you to split the loaf."

James Bopp, general counsel to the National Right to Life Committee, called the decision "good news."

"They have rejected the notion that every single abortion law can be nullified by finding one hypothetical burdensome situation," he says. "This is the court saying to the abortion-rights movement that the court is unanimous in the idea that you can't nullify every single abortion law because of one hypothetical situation."

The ruling will likely change the tone of ongoing challenges to the federal Partial-Birth Abortion Act, analysts say. Like the New Hampshire case, appeals courts had followed the high court's lead in striking down the entire law when only portions of the act raised constitutional questions.

Writing for the court in the New Hampshire case, O'Connor said: "The courts below chose the most blunt remedy - permanently enjoining the enforcement of New Hampshire's parental notification law and thereby invalidating it entirely."

She says such actions by the lower courts are understandable "for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw."

O'Connor's reference was to the high court's striking down a Nebraska law banning so-called partial-birth abortions. The court ruled the entire law invalid because it lacked a health exception. The justice added that unlike the New Hampshire case, the parties in the Nebraska case did not ask for more finely drawn relief.

"We agree with New Hampshire that the lower courts need not have invalidated the law wholesale," O'Connor wrote. "Only a few applications of New Hampshire's parental notification statute would present a constitutional problem."

At the center of the case was whether New Hampshire's parental notification law complied with two constitutional requirements.

Did the law create an undue burden to a woman's right to have an abortion? Was the law invalid because it did not include a broad health exception that would allow a teen to obtain an abortion without first telling a parent in an instance when any delay might threaten her health?

The law, passed in 2003, requires that at least one parent be notified at least 48 hours before their child obtains an abortion. Notification can be waived if a doctor certifies that the procedure is necessary to prevent the minor's death.

In addition, a judge can excuse a minor from the notification requirement if the judge rules that the minor is mature and capable enough to give informed consent for the procedure or if the judge feels it would be in the teen's best interests that a parent not be notified.

The law authorizes parents to sue abortion providers in cases where there was no prior notification.

Shortly after the law was passed, Planned Parenthood sued, claiming it violated constitutional safeguards of a woman's right to an abortion. The group said the death exception was too narrow and the law should also include a focus on preserving a woman's health. They said the restriction created an undue burden on the abortion right.

A federal judge and a federal appeals court panel agreed. But rather than striking down a portion of the law, the courts enjoined enforcement of the entire law.