Roberts Tips His Hand on Abortion

All eyes were on new Chief Justice John Roberts yesterday as he presided over the oral arguments for two far-reaching challenges to abortion laws.

Roberts, a conservative who deflected most questions about abortion at Senate hearings in September during his nomination to the high court, revealed little on questions over whether parental notification laws must require an exception for the health of the mother and whether federal laws against racketeering and extortion can be used against protesters who block access to abortion clinics.

But observers had their first insight into the disposition of the new court on the explosive issue of reproductive rights when a crucial question arose: whether abortion laws can take effect while they are being challenged as unconstitutional.

On several occasions in the hearing of Ayotte v. Planned Parenthood of Northern New England, Roberts questioned the need to strike down an entire abortion statute based on a single sticking point -- in this case, the lack of an exception for the health of the mother.

In arguments before the justices, Kelly A. Ayotte, the attorney general of New Hampshire, rejected the notion that the lack of the health exception posed a problem, arguing that a "judicial bypass" provision would cover medical emergencies by enabling doctors to get quick permission from a judge to circumvent the law's requirement that physicians notify a parent of a pregnant teen at least 48 hours before performing an abortion.

Several of the justices seemed unsatisfied with that explanation.

But Roberts seemed to suggest that even if the judicial bypass provision is deemed problematic, it should not necessarily invalidate the entire statute.

Justice Weighs Law against Rare Cases

"It's a problem that arises only in emergency situations," Roberts said. He then questioned whether those rare cases should "implicate the vast majority" of cases in which the pregnant teen's health is not at risk.

That statement, along with other comments, suggested he was searching for a way to change the current standard of jurisprudence, which permits courts to stop abortion laws from taking effect while the courts decide if the laws pass constitutional muster.

Challengers to the law, represented by Jennifer Dalven -- deputy director of the New York-based Reproductive Freedom Project of the American Civil Liberties Union -- argued that the law is unconstitutional on its face, regardless of the frequency of health emergencies.

Reproductive health advocates have argued that changing the standard of jurisprudence so that abortion-related laws would be in force until they are ruled unconstitutional would compel women to obey them even as the laws are being challenged.

Meanwhile, several justices raised questions about the central element of the case -- whether parental notification laws must provide an exception for the health of the mother -- as Supreme Court precedent has held. Many questioned why the New Hampshire law makes an exception for the mother's life but not her health and expressed concern about pregnant minors who may need immediate medical attention.

Justice Antonin Scalia brushed aside those fears, arguing that a doctor could quickly get around the 48-hour notification requirement with a judge's permission.

It only takes 30 seconds to place a phone call to a judge, Scalia said. If a doctor can't wait that long, he or she "better not put on his gloves" before performing an abortion, he quipped.

But Dalven responded that the judicial bypass provision is unconstitutional because it would necessarily delay medical attention, a potentially "catastrophic" situation for a pregnant teen whose health is at risk.

Observers also paid close attention to Sandra Day O'Connor, a supporter of abortion rights who has cast the swing vote on several key abortion cases and seemed to be searching for a compromise in the Ayotte case.