Supreme Court Takes Abortion Parental Notification Case

Court Taking Up Abortion Notification (AP)

The Supreme Court, re-entering the politically charged abortion debate, agreed Monday to hear a state appeal seeking to reinstate a law requiring parental notification before minors can terminate their pregnancies. Justices will review a lower court ruling that struck down New Hampshire’s parental notification law. The Boston-based 1st U.S. Circuit Court of Appeals said the 2003 law was unconstitutional because it didn’t provide an exception to protect the minor’s health in the event of a medical emergency. The decision to review the emotional case, which came amid wide speculation that Chief Justice William H. Rehnquist’s retirement is looming, will be heard in the next term beginning in October. Liberal groups have vowed to fight any Rehnquist replacement who opposes the high court’s landmark 1973 decision legalizing abortion.

In their appeal, New Hampshire officials argued that the abortion law need not have an “explicit health exception” because other state provisions call for exceptions when the mother’s health is at risk. They also asked justices to clarify the legal standard that is applied when reviewing the constitutionality of abortion laws. The New Hampshire law required that a parent or guardian be notified if an abortion was to be done on a woman under 18. The notification had to be made in person or by certified mail 48 hours before the pregnancy was terminated.

In its last major abortion decision in 2000, the Supreme Court ruled 5-4 that state abortion laws must provide an exception to protect the mother’s health. Justices at the time reasoned that a Nebraska law, which banned so-called “partial-birth” abortions, placed an “undue burden” on women’s abortion rights. Since then, several lower courts have applied that health exception to abortion laws requiring parental notification. The New Hampshire case challenged whether the Supreme Court’s 2000 ruling actually required that.

That the Court has agreed to hear this illustrates how much Roe and its successors have become settled law. The issues at stake here are on the level of minutia rather than substance. The bottom line is that states have little say over abortion until fetal viability is reached and that even minor children have the right to an abortion absent parental notification if they can convince a judge that their parents might get upset. We’re now just niggling over wording.

Chief Justice Rehnquist is in the minority on the Court on this issue, so having him replaced by another conservative won’t change anything. Having him replaced by a milquetoast candidate a’la David Souter will set the precedents even deeper into cement. Only the retirement of one of the Court’s liberals and the subsequent replacement with a strict constructionist offers any hope of changing this situation.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. bryan says:

    even minor children have the right to an abortion absent parental notification if they can convince a judge that their parents might get upset.

    Care to cite a scotus case on this? I was not aware that parental notification had that caveat per case law.

  2. TJ Jackson says:

    As the Supremes have shown, “precedents, we don’t need no damn precedents.” What makes you think any future court will respect the precedents established in this manner?