Host: Neil Conan
David Savage, Supreme Court reporter for the Los Angeles Times; author, Turning Right: The Making of the Rehnquist Supreme Court
Kelly Ayotte, attorney General of New Hampshire
Louise Melling, director of the ACLU Reproductive Freedom Project; lawyer representing Planned Parenthood of Northern New England
Neil Conan: The Supreme Court heard its first abortion case in five years. Big news by itself, even more so with new Chief Justice John Robert presiding. The case involves a so-called "parental notification law." Like most states, New Hampshire [NH] requires doctors to notify at least one of the parents before performing an abortion on girls younger than 18. Like most states, NH provides an exception in the case of a life-threatening emergency. But NH is one of the few states whose law does not provide exceptions in less dire circumstances, as when the health of the mother might be threatened. Supporters of the law argue that the health exemption is a giant loophole that could undermine parents' right to be in charge of the medical treatment of their children. Opponents say it is not always possible to locate parents in time to deal with some medical emergencies. In the broader sense, this is to some degree a proxy fight over the larger issue of abortion and the law. There is another issue in today's case as well, as in many other abortion cases. Lower courts have barred enforcement of NH's law before it took effect. Is it constitutional for the courts to act before anyone is actually affected? Later this hour, we'll hear directly from both sides... We're going to hear excerpts from today's Supreme Court hearing as well. This is just the third time that the Court has provided same day access to audio tape of the proceedings. The first was Bush v. Gore in 2000l; the second was a 2003 affirmative action case involving the University of Michigan. Joining us is David Savage.
Neil Conan: Before we get to the specifics of this case, I guess I have to ask you: this is the first big case with Judge Roberts presiding as Chief Justice of the US. How was it different from Justice Rehnquist? Was he reticent? Did he fit right in as Chief Justice?
David Savage: He certainly fit right in. He's not a shy guy and he sort of knows what he thinks and he took charge of part of this argument. I thought, going into this argument, that this would be one of these classic 4/4 splits with Justice O'Connor being the deciding vote. But halfway through the argument, Roberts suggested a way to resolve this case on narrow grounds that would solve the problem at issue and was something both sides could agree to. Here's what happened. New Hampshire passed this law... and there was no exception in the law for health emergencies. The ACLU and some doctors said, Wait a minute! What about a situation where we have a young girl who has a medical emergency. Maybe she's not dying but she's bleeding or something like that and the doctor needs to perform an immediate abortion. He shouldn't have to go to a courthouse and get some sort of order from a judge. On that basis, the lower court struck down the law and said the whole law is unconstitutional. Roberts said, Why not a "pre-enforcement injunction"? Why not the doctors go to court and get an order that says, This law does not apply in cases of medical emergencies. He proposed that to the lawyers on both sides, and basically by the end of the argument all the justices including Ruth Ginsburg said, Well, what's wrong with that? Doesn't that basically solve the problem? So I think Roberts didn't come up with this on his own -- it was in some of the briefs -- but he raised this with both sides and said, There's a simple, direct way to solve this case, sort of a compromise solution. That is, the law can go into effect for most young girls because they don't have medical emergencies, but for doctors who do face medical emergencies, they can act quickly. And so I have a feeling the Court's going to write some decision that it looks like most of them could agree with.
NC: Unusual to find consensus on on a lot of issues, and certainly on any issue involving abortion.
DS: Yes, that's sort of the last thing you expect to happen is an abortion case where they generally agree. They're very closely split on this, they've been around this issue before, they're sort of dug in. Everybody knows their views. Some of them think, like Justice Scalia, that Roe should be overturned. Some of them are strong supporters. So you always expect these to be real fight. But this didn't have that sound to it.
NC: Let me just clarify that for a moment. This would be a general provision. In other words, they wouldn't have to act on each individual case to go find a judge. This would be a general provision that the courts would enforce there in NH and the effect would be to make NH's law very much like the law in most of the other states.
DS: Yes, that's right. It would be sort of an injunction that would apply to all future cases, and it would sort of cure the problem that this law had. The Bush administration argued, and I think Roberts seemed to agree, the right solution is not to strike down the law for a thousand young girls who need abortions because one or two of them are going to face a medical emergency. Why not have a court order that makes an exception for just that situation?
NC: The arguments around this case -- as you say, they might have been resolved by this neat solution proposed by Chief Justice Roberts -- but this seemed to be a classic case of people arguing almost a proxy fight over abortion, an attempt portrayed by opponents of this law that they're basically trying to eat away -- make it more and more difficult by incremental bites to make it more and more difficult for women to get abortions.
DS: Yes, and that's sort of the background of this case. And the abortion rights opponents are justified in thinking that. After all, the Bush administration and some members of the Court think Roe v. Wade was wrongly decided and should be overturned. The Bush administration is supporting more regulation of abortion. So it's understandable for the abortion rights advocates to say, Let's watch what's going on here, this could be the beginning of unravelling Roe v. Wade, the beginning of overturning it entirely, or the beginning of allowing major restrictions. But it was not evident in this argument.
NC: And on the other side, that this is a law about parental rights. Clearly parents -- you continue to hear the argument -- most schools require parental notification to give the kid an aspirin!
DS: Yes, that's right. There's also the sort of democratic argument that's made. If a state legislature passes a law like this, and it has strong support in the state legislature, and the Supreme Court has basically said this principle is constitutional, why strike down the entire law and say, You can't enforce this law at all, just because of the occasional very real problem that is the medical emergency.
NC: Well, to get to the heart of the NH Attorney General's argument, Justice Stephen Breyer put forth a hypothetical scenario. In this audio clip from today's arguments you'll hear the voices of Justice Breyer, Attorney General Kelly Ayotte of NH, and Justice Sandra Day O'Connor:
Justice Breyer: Let's imagine a real circumstance. A 15-year-old walks in at 2 in the morning on Saturday to the emergency room, and the doctor looks at her. She's pregnant, she has this very high blood pressure or whatever, and the doctor thinks to himself, Well, immediate abortion. No questions. Immediately deliver the child. If I don't, I don't think she's going to die but she'll never have children. And he's thinking that. What's supposed to happen? He calls up  or  and there's no answer. It's 2 in the morning, and there's one of those things saying "leave a message." Okay? Shall I call your parents? No. They don't know I'm pregnant. Now, what's supposed to happen?
Kelly Ayotte: Justice Breyer. The physician in those instances could perform the immediate abortion
JB: Doesn't say that in the statute. It suggests the contrary. So what is the particular provision of NH law that tells that? I mean, the doctor -- all these things are questions of probability -- and he doesn't want to risk being prosecuted and he doesn't want to risk losing his license. And so what particular provision -- he happens to have his lawyer with him! [laughter] What does the lawyer say? What's the provision? There's no health exemption in this statute.
KA: Your Honor, his lawyer would advise him in those circumstances that the competing harms defense would protect his actions because he needs to act urgently...
Justice O'Connor: ... Would it protect him from a civil damages action? as well as prosecution?
KA: ...Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability. I would also say that the lawyer would also advise him if given the opportunity the Attorney General is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance...
JB: How do we know? I mean what you're saying is fine. But how do we know that that's actually the law. There are a lot of people who absolutely and in very good faith would say that it isn't competing harm. They would say that the competing right to life of the fetus is more important than the possibiity of the mother having children in the future herself. See, there are people of good faith on both sides of this argument. And so how do we know that the NH statute is going to do -- not the statute that your competing harms defense is going to do for this particular woman what a health exception would do?
KA: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it as opposed to the harm that the act is trying to get at, which is notification of parents. It's not whether or not the minor can have an abortion. The minor can always go ahead and have an abortion under these circumstances, so people aren't weighing the right of the fetus in this instance to the right of the mother's health. So the weighing is quite easy.
NC: ... It sounded like she [Ayotte] was having some difficulty with some of the questions.
DS: She was. [Break, summary.]
NC: Let's take a call. Jim is on the line with us from New Haven, CT.
Jim: I was very interested to listen to the commentary. It sounded to me as though you were saying this case, which is supposed to be giving us an idea of how Chief Justice Roberts will be ruling in the future, is indicating that he is very much in favor of justice legislating from the bench. It sounds as if he's very interested in allowing the NH law to stand with modifications as supplied by the Supreme Court.
NC: David Savage, is that a fair assessment?
DS: It's a fair criticism. Because that is what Chief Justice Roberts and some of the justices are proposing -- that judges could carve out an exception to this law. And the ACLU attorney basically said, this is the legislature's job. But I think the justices of the Supreme Court are going to do it themselves and it is subject to the criticism that they're legislating from the bench.
Jim: Which is presumably precisely what he is supposed to be against! He and Scalia and the other appointees of that persuasion!
DS: Well, let me put in a good word for his side. I suppose the argument would be, they're sort of saving the law. By cutting out this minor exception, in a big picture, they're sort of saving the law and allowing it to go into effect by carving out this one exception. So they could argue they're actually saving most of what the legislature did rather than having it be struck down entirely.
NC: And let's talk quickly with Lisa. Lisa is calling us from Rapid City, SD.
Lisa: Hi. This is a very interest argument for me. I'm a parent and a woman obviously and I'm involved with this issue. I'm very much about the right to privacy and I'm pro-choice, and yet it's a complicated issue. I kind of resent the fact that these national pundits are saying, You can't miss the small details, you have to be either 100% for it or against it. I think it's a very complicated issue. As a parent, I don't believe that a minor has a right to privacy. I think that's part of my job as a parent -- to be involved in and especially those life-altering decisions. So that's really my point. I feel like we're being pressured as citizen and voter to either be pro-choice or anti-abortion/pro-life. As though we can't debate these smaller issues or they feel it will chip away at our position. That's something I have a problem with.
NC: David, I don't think Lisa is alone.
DS: No. There are many people with... I think if you look closely at the polls, people have very complicated opinions on abortion. And I've seen in some the recent Gallup Polls, if you ask how many people say abortion should be legal in all circumstances or illegal in all circumstances, both of them are fairly small minorities -- it's like 21 and 22%. The majority of the people have something that's closer to an in-between position. They think abortion should be generally legal but not in all circumstances. Some sort of middle position. It's a very hard issue, I think, for everyone.
NC: Joining us now is Kelly Ayotte, Attorney General of NH. She presented oral arguments before the Supreme Court earlier today. In fact, we heard some excerpts earlier. She joins by phone from here in Washington, DC. ...Obviously this law was earlier rejected by lower federal courts. Why did you decide to press on with the case?
Kelly Ayotte: I decided to file a petition with the Supreme Court first of all because this was a facial challenge to our statute. So the entire statute was struck down based on one potential application which they raised which could be problematic. And we thought that as a matter of a way of looking at the case that that wasn't really proper in the first instance. So that was one issue that we appealed. And then we also felt that NH law could be applied to protect for that one potential rare situation that could arise. We wanted the Court to consider that as well.
NC: Let me ask you about some of the talk in the case. We were talking with David Savage of the LA Times earlier about the proposal put forward by Chief Justice Roberts today of basically making a broad case the exception in courts in NH. Is that something you find acceptable?
KA: Well, actually, one of the things that we proposed in the case which we think is quite acceptable is this: We feel that they didn't meet their standard of review to strike our entire law down. They should have been relegated to bringing a pre-enforcement as-applied challenge which would have been focused on the real issue of does it work in an emergency situation. And if a court found that it didn't work in that situation, then the court would do what it does when any plaintiff comes to court and says, Hey, this law doesn't work for me! And issue an order saying, Okay, state, you can't enforce it in that one context. I wanted to clarify: that's not rewriting a law, that's what courts do every day. And that's what courts did -- for example the Supreme Court in a case called Tennessee v. Garner -- considered a statute in which the state could use any kind of force to effectuate a fleeing felon in an arrest. Well the Supreme Court, what they did was, they said No, you can't apply your statute if it's an unarmed, non-dangerous person. That wasn't rewriting the law. That was just saying, You can't enforce it in this context. That's what we've asked for here.
NC: This judical by-pass?
KA: With respect to the judicial by-pass? It's been our position with respect to the judicial by-pass, we haven't ever had the chance to have NH put the by-pass in place. We think it will work in an emergency situation. But if for some reason it doesn't, we also argued that another provision of NH law will protect the physician.
NC: One of the legal implications of this case today was rather technical. Because the law hasn't actually gone into effect, the Supreme Court doesn't actually have a specific plaintiff. You'll hear some of the nuances. We're going to hear a clip of this exchange with Chief Justice John Roberts and Jennifer Dalven of the ACLU Reproductive Freedom Project. You'll also hear the voice of Sandra Day O'Connor:
Chief Justice John Roberts: So if your objection goes to the adequacy of the by-pass procedure, what is wrong with a pre-enforcement challenge by physicians, presumably with standing, challenging the by-pass procedure? Why shouldn't you be able to challenge the act as a whole if your objection is so narrowly focused?
Jennifer Dalven: Two points, Chief Justice Roberts. First is that our objection isn't to the by-pass process. We believe that there would be, regardless of how good the procedures the NH Supreme Court set up, there would still be inherent delay from the time the doctor diagnoses the patient and the time they get to court and get the order. So it's not a problem of the judicial by-pass.
JR: But it's a problem that arises only in emergency situations. So bring a pre-enforcement challenge concerning compliance with the act in emergency situations. Why does that even implicate the vast majority of the cases that don't create emergency situations?
JD: As Justice Ginsburg pointed out, we believe that is this case. There is nothing different between this case....
JR: This case doesn't involve an emergency situation. This is a facial challenge. There's no case at issue at all.
JD: Your honor, the state conceded a pre-enforcement challenge brought by a doctor before any particular patient was at risk would be proper.
Justice O'Connor: What resulted here? It was the invalidation of the entire statute and all of its applications? Is that how it now stands?
JD: That, I believe, is how...
JO'C: Okay. So the question you're being asked is how can that be narrowed in some fashion to focus on the problem? The statute may well have a majority of valid applications. So how can we narrow the application? And what of our doctrines allow the narrower application? So you need to focus on that. Obviously it's a matter of concern.
JD: Sure. I think this court in Casey addressed that consideration. And Casey was essentially this case, a pre-enforcement challenge brought to the adequacy of the medical emergency exception. This court held that if the law prohibited any immediate abortion for some of the very same conditions we outline here, it would have been unconstitutional.
JR: Because the Court explained that the inadequacies that identified were present in a large fraction of cases. We don't know if that's true here.
NC: Again, a colloquy before the Supreme Court... Kelly Ayotte, getting back to this facial challenge aspect, explain what this is and how it applies here.
KA: Sure. A facial challenge is a challenge brought before an act ever goes into effect. The remedy that the plaintiffs asked for in a facial challenge is, render the statute void. Don't let it apply to one person. And because that's such an extraordinarily broad remedy, the courts normally apply a much more stringent standard in reviewing that type of challenge. So in this context, even in the Casey decision that you heard Attorney Dalven reference, the court applied a standard to the spousal notification provision that would have required someone to demonstrate an obstacle in a large fraction of cases. Here, there wasn't even a demonstration that the potential issues that can arise in an emergency setting posed a substantial obstacle in a large fraction of cases. So we're talking about a case on a facial challenge that, from our position, didn't meet the burden of proof it needed to meet to render our entire statute void.
NC: David Savage of the LA Times, this aspect of the case again is rather technical sounding but has important implications for other kinds of abortion cases, including perhaps the upcoming case involving the procedure opponents call "partial birth abortion."
DS: Yes, I think it's going to be hard to figure out how this case it going to play on that one. But certainly the health issue is the center of the dispute over partial birth abortion. That is, is it necessary for the health of some women for doctors to be able to do this procedure. I do think there's a very good argument against the facial challenges. Kelly Ayotte made it and the Bush administration made it. That is, there's something that goes too far about striking a law down entirely that could be constitutional in 99 out of 100 cases. I think the Court is going to find a way to deal with this more narrowly in this case.
NC: If they do that, Kelly Ayotte -- well, obviously you have to accept it from the Supreme Court! -- is this something that you would agree with?
KA: Absolutely. Certainly that, from our perspective, would be a good result. In the sense that at least we would have the opportunity to apply our statute in NH in most if not all of its application.
NC: Thanks for being with us...Louise Melling is director of the ACLU Reproductive Freedom Project, a lawyer representing Planned Parenthood of New England, the respondent in today's Supreme Court case... She joins here... As you heard, NH lawmakers said the health exception would render the parental notification law useless, because it would just be an enormous loophole that people could take advantage of. Your response to that?
Louise Melling: I obviously disagree with that. The issue here is whether there should be an exception so that doctors can take care of medical emergencies. Medical emergencies that not only endanger a teen's life but also endanger a teen's health. If you look at the exceptions that exist in other states, first of all, their language doesn't in any way permit there to be a loophole, and, in fact, it shows that they aren't functioning as a loophole. Teens are notifying their parents or going to court.
NC: And therefore -- and again, getting back to this compromise that was proposed by Chief Justice Roberts -- is that something that's going to solve this, bring the NH law more or less into line with the laws in most of the other states on parental notification?
LM: There are a couple of issues. I think in today's argument, where we saw that justices clearly accepted and understood that you needed to have some protections for teens who face a medical emergency. And then the question was what to do about it. Then I think the question really comes down to whether the Court decides to write the exception into the statute or whether the Court then strikes the law and has the NH legislature fashion the exception in the way that the NH legislature would choose to do.
NC: And would that be, as we've just heard the Attorney General of NH say fine with her, would that be acceptable for your side as well?
LM: I think what you heard Jennifer Dalven say today in court was, if the Court fashions the emergency exception and says the law applies in every instance except... medical emergencies..., that would take care of teens in NH. But you have a different question about whether that's really the role of the Court. Where the legislature consciously chose not to add a health exception, should the Court do it, or should the Court send it back and see what the legislature does? We don't know for sure that the legislature would pass the law with a health exception. We don't know what parameters it would put on its own health exception.
NC: Is the goal to get the health exception? or is the goal to get the legislature to enact it?
LM: The goal is certainly to protect teens' health. But the goal is also to make sure legislatures accept their responsibility to pass laws that are constitutional and take care of situations, as opposed to displacing all that role to the Court.
NC: Well, if you put that argument to Roe v. Wade, that would put the decisions on abortions back in the hands of the state courts, wouldn't it?
LM: No. I'm sorry if I wasn't clear. Here I'm saying there's a constitutional violation and you get that constitutional violation because Roe is the backdrop. And then the question is, who writes the words that say medical emergencies are covered. Is that taken care of. Does the Court say, We carve out an exception to this law for medical emergencies, or do they say, Legislature, you rejected this idea, your law clearly has a constitutional violation, it's not our task as a court to make this up. You, legislature, you now figure out if you want the law with the health exception or not. We leave it back to you to decide whether you want the law you could have consistent with the Constitution.
NC: Obviously, there's been no decision reached in this case, and it'll probably be months before we find out what it is, but as you saw the Court in operation today and listened to excerpts, I wonder, how was the Roberts Court different on this issue of such importance to so many people in this country?
LM: I wouldn't actually presume to speculate. The Court was active. The Court was engaged in the issue. I was pleased that the Court seemed willing to hold firm to its idea that you have to have protections for women's health. And then I don't know!
NC: We'll get some more listeners involved after the break...
NC: Still with us is David Savage, Supreme Court reporter for the LA Times, and Louise Melling, director of the ACLU Reproductive Freedom Project... Let's get a listener on the line. This is Jackie calling us from San Francisco.
Jackie: Hi. I was 19 years old in 1968. I was a victim of date-rape and I couldn't get a therapeutic abortion in California. I went to Colorado and wound up with a quack. I was infected. I came back to California and ten days later I wound up with a temperature of 106 and was admitted to the ER at 3 in the morning. There was no decision made for three days on whether or not I could receive a therapeutic abortion because the doctors were concerned about the viability of the fetus. When it was finally determined that my health was in danger, I was required to get a parental consent. It was not possible to locate my parents. So I went another day. I'm just outraged by this situation. I'm living with complications. I'm sterile. I'm 57 years old. The only thing that's unusual about my story is that I'm alive to tell it. I think that the health of teenage women is forgotten, and I hope that the Supreme Court will stop making jokes about lawyers being present in emergency rooms and remember that this is about the health of young women.
NC: Jackie, I know it's not easy to talk about things like that. Thank you so much for calling us to talk about it.
Jackie: I'm just calling on behalf of all the women who've died. The only thing that's unusual about my situation is that I'm alive to tell about this horror story.
NC: Louise Melling, let me bring you into this. Obviously things have changed a great deal since 1968. But that's the situation we're really talking about.
LM: We are talking about situations where a teen's health would be seriously compromised if the physician had to wait for 48 hours mandated by the law or less. What the doctor is supposed to be able to do, what the doctor is allowed to do when faced with those situations under NH law, the doctor cannot go forward under law and be challenged.
NC: We know you have to leave us. We thank you for taking the time to be with us today.... Let's see if we can get one more call in on this. Gary. Gary joins us from Kansas City.
Gary: Hello. Thank you. I'm an emergency physician and I'm greatly troubled by what I perceive to be the intellectual dishonesty of the Right to Life movement in this issue. I guess the best way to summarize it is that there are abortions and there are abortions. They consider a tubal pregnancy termination early on to be an abortion when in fact that's not a viable pregnancy and when in fact the life of the mother is in danger. I'm highly insulted by the idea that, if I'm presented as an emergency physician with a patient who may happen to be a minor and who needs to have that pregnancy terminated to prevent that pregnancy from rupturing and causing her to bleed to death, I'm highly insulted that I would ever have to get permission of anybody to do the right thing to treat that patient to save her life. We have emergency exceptions for treating patients and we treat patients without consent all the time in the Emergency Department. This is but one more example of how sometimes its necessary to do the right thing when there's nobody to get permission from. I'd also dare say there are physicians who are willing to commit civil disobedience to do the right thing for their patients rather than follow some misguided law.
NC: One thing, Gary. You sort of lump a large movement together, the Right to Life movement. There are a lot of distinctions. Not everybody would agree with that.
Gary: I'd agree with you on that, too, but there's a faction of that movement that thinks there's no reason to end a pregnancy. I respect people's rights to their opinion. I respect the fact that different people based on their religious backgrounds and moral beliefs more or less have to object to abortion in various cases, because otherwise they would be sanctioning murder. I respect that. But I don't respect the idea that a doctor can't do the right thing to save a patient's life when that clearly is what needs to happen.
NC: Gary. Thanks for the call... David Savage, before we let you go, NH is one of five states, as I understand it, that did not have the health exception. If the Supreme Court issues the decision based on the compromise you were talking about earlier from Justice Roberts, would that cover the other states where there is no exemption?
DS: No, not directly. Though seemingly it would give doctors in those other states a means of accomplishing the same thing. That is, go to court, and say on behalf of me and all other emergency room doctors, like the doctor who was just on the phone, faced with a medical emergency of a young girl, we can go ahead with an abortion. Get an order that would allow that in advance. Then the doctors would know that if that situation arose, they could move quickly.