Parental Notification and Ayotte v. Planned Parenthood of Northern New England
CRS Report for Congress
Parental Notification and Ayotte v. Planned
Parenthood of Northern New England
Jon O. Shimabukuro
Legislative Attorney
American Law Division
Summary
This report discusses Ayotte v. Planned Parenthood of Northern New England,
which will be decided by the U.S. Supreme Court this term. The case involves the
constitutionality of the New Hampshire Parental Notification Prior to Abortion Act. In
November 2004, the U.S. Court of Appeals for the First Circuit invalidated the act
because it does not include an explicit exception that would waive the measure’s
requirements to preserve the health of the pregnant minor. Ayotte, the Attorney General
of New Hampshire, contends that a judicial bypass procedure included in the act and
other state statutes sufficiently preserve the health of a minor. The Court will review
that position, and consider whether the First Circuit applied the correct standard of
review when it heard the case in 2004.
In Ayotte v. Planned Parenthood of Northern New England, the U.S. Supreme Court
will consider whether the New Hampshire Parental Notification Prior to Abortion Act (the
“Act”) may be upheld despite its lack of an explicit exception that would waive the act’s
requirements to preserve the health of a pregnant minor. In past abortion cases, the Court
has discussed requiring such an exception in measures that regulate abortion at the pre-
and postviability stages of pregnancy. In November 2004, the U.S. Court of Appeals for
the First Circuit concluded that the act is unconstitutional because it does not include a
health exception. The case was argued before the U.S. Supreme Court on November 30,
Under the act, no abortion shall be performed upon an unemancipated minor or
female for whom a guardian or conservator has been appointed until at least 48 hours after1
written notice has been delivered to one parent of the minor. While the act includes
several exceptions to the notification requirement, including a judicial bypass procedure
and a waiver of the requirement if the attending abortion provider certifies that the
abortion is necessary to prevent the minor’s death and there is insufficient time to provide
the required notice (the so-called “death exception”), it does not include an explicit
waiver that would allow an abortion to be performed to protect the health of the minor.
1 N.H. Rev. Stat. Ann. § 132:25.
Congressional Research Service ˜ The Library of Congress
Ayotte, the Attorney General of New Hampshire, contends that the act’s judicial bypass
procedure and other state statutes sufficiently preserve the health of the minor. However,
Planned Parenthood of Northern New England and the other respondents maintain that
the act must have a health exception.
Ayotte also argues that the First Circuit failed to apply the correct standard of review
when it heard the case in 2004. The respondents brought a “facial challenge” to the act.
Unlike an “as applied” challenge, which considers the effect of a measure as applied to
a particular individual, a facial challenge attempts to invalidate a measure before it takes
effect. Rather than apply a more rigorous standard that was first articulated by the Court
in a 1987 case, the First Circuit applied the undue burden standard recognized by the
Court in Planned Parenthood of Southeastern Pennsylvania v. Casey.2 The Court’s
decision in Ayotte is expected to clarify which standard should be used in facial
challenges to abortion measures.
Health Exception
The need for a health exception in abortion regulations was first discussed in Roe v.
Wade. With regard to the State’s interest in protecting fetal life after viability, the Court
indicated that a State “may go so far as to proscribe abortion during that period, except
when it is necessary to preserve the life or health of the mother.”3 In Stenberg v. Carhart,
a 2000 case involving the so-called “partial-birth” abortion procedure, the Court appeared
to extend the health exception requirement to previability abortion regulation: “Since the
law requires a health exception in order to validate even a postviability abortion
regulation, it at a minimum requires the same in respect to previability regulation.”4
The respondents first challenged the act shortly after its passage in June 2003. In
December 2003, a federal district court in New Hampshire concluded that the act is
unconstitutional because it lacks a health exception and because its so-called “death
exception” is too narrow. The court noted that “on its face, the act does not comply with
the constitutional requirement that laws restricting a woman’s access to abortion must
provide a health exception.”5 The court found that other New Hampshire statutes do not
provide an alternative health exception that could render the act constitutional. In
addition, the court maintained that the act’s judicial bypass procedure does not “save the
act from the lack of a constitutionally required health exception.”6
On appeal, the Attorney General defended the act and its lack of a health exception
on four grounds. First, the Attorney General argued that parental notification statutes do
not require a health exception because of the interests that are protected by these statutes;
2 For additional discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey and
other abortion decisions, see CRS Issue Brief IB95095, Abortion: Legislative Response, by Karen
J. Lewis and Jon O. Shimabukuro.
3 410 U.S. 113, 163-64 (1973).
4 530 U.S. 914, 930 (2000).
5 Planned Parenthood of Northern New England v. Heed, 296 F.Supp.2d 59, 65 (D. N.H. 2003).
6 Heed, 296 F.Supp.2d at 66.
that is, while a health exception is necessary for a statute that prohibits a particular
method of abortion, it is not needed in a parental notification statute that protects minors
from undertaking the risks of abortion without the advice and support of a parent. The
First Circuit disagreed with the Attorney General, maintaining that the interests served by
a statute do not have an impact on the need for a health exception: “[R]egardless of the
interests served by New Hampshire’s parental notice statute, it does not escape the
Constitution’s requirement of a health exception.”7
The Attorney General’s second argument focused on Hodgson v. Minnesota, a 1990
case in which the Court upheld Minnesota’s parental notification statute despite the
absence of a health exception. The Attorney General contended that the court’s decision
should be controlled by Hodgson. However, the First Circuit noted that the lack of a
health exception was not raised as a reason to invalidate the statute at issue in Hodgson.
Moreover, the First Circuit reasoned that even if the Court had considered the absence of
a health exception in Hodgson, the Court’s subsequent decisions in Casey and Stenberg
would now require a health exception in the New Hampshire statute.
The Attorney General’s remaining arguments were similar to those made before the
district court. Acknowledging that the act contains no explicit health exception, the
Attorney General argued that other provisions of New Hampshire law provide a
functional equivalent. The Attorney General identified various statutes that preclude civil
and criminal liability for health professionals who provide care under certain
circumstances. For example, under one statute, a physician would be shielded from
criminal liability if he provides emergency medical care when no one competent to
consent to such care is available. Similarly, another statute would preclude civil liability
for health professionals who render emergency medical care without consent.
The First Circuit concluded that the proffered statutes would not preclude all civil
and criminal liability for medical personnel who violate the act’s notice requirements to
preserve a minor’s health. While the statutes would protect medical personnel who
provide treatment without consent, they would not necessarily protect such individuals
when treatment is provided to a consenting minor without the parental notice required by
the act. Moreover, the First Circuit indicated that the clear and unambiguous language
of the act identifies only three exceptions to the parental notice requirement: when
abortion is necessary to prevent the minor’s death; when a parent certifies in writing that
he or she has been notified; and when a court grants a judicial bypass. The First Circuit
reasoned that it would be contrary to basic canons of statutory construction to construe
other statutory provisions, like those identified by the Attorney General, as superceding
the clear intent of the act and allowing other opportunities to avoid the notice requirement.
Finally, the Attorney General argued that the act’s judicial bypass procedure
preserves a minor’s health by allowing for the prompt authorization of a health-related
abortion without notice. The act’s judicial bypass procedure provides for the prompt
consideration of cases involving minors who do not want a parent to be notified. Under
the act, a minor is afforded 24-hour, 7-day access to the courts, and a court must rule on
a minor’s petition within seven calendar days from the time a petition is filed. If a
decision is appealed, a ruling must be issued within seven calendar days.
7 Planned Parenthood of Northern New England v. Heed, 390 F.3d 53, 60 (1st Cir. 2004).
The First Circuit was not convinced that the judicial bypass procedure adequately
protects a minor’s health: “Delays of up to two weeks can . . . occur, during which time
a minor’s health may be adversely affected. Even when the courts act as expeditiously
as possible, those minors who need an immediate abortion to protect their health are at
risk.”8 The First Circuit determined that the bypass procedure could not replace the
constitutionally required health exception because of the potential delay.
Death Exception
The First Circuit affirmed the district court’s decision with respect to the act’s death
exception. The First Circuit maintained that the exception is too narrow and fails to
safeguard a physician’s good-faith medical determination concerning whether a minor’s
life is at risk. Because the course of medical complications cannot be predicted with
precision, a physician cannot always determine whether death will occur within the 48-
hour time period contemplated by the act. Consequently, the death exception forces a
physician to gamble with a patient’s life in hopes of complying with the notice
requirement, or risk violating the act by providing an abortion without parental
notification. The First Circuit believed that the threat of sanctions that arises from such
a choice would have a chilling effect on the willingness of physicians to perform
abortions when a minor’s life is at risk. The court also found that the absence of a clear
standard by which to judge a physician’s decision to perform an abortion would have a
similar chilling effect on a physician’s willingness to provide lifesaving abortions.
Standard of Review
The Attorney General has asked the Court to consider whether the First Circuit
applied the correct standard of review to the respondents’ “facial challenge” of the act.
In United States v. Salerno, a 1987 case involving a facial challenge to the Bail Reform
Act, the Court determined that facial challenges require the challenger to establish that9
“no set of circumstances exists” under which a measure would be valid. The Salerno
standard requires that a measure be upheld even if it operates unconstitutionally under
some circumstances.
Application of the Salerno standard, however, has been complicated by the Court’s
adoption of the undue burden standard in Casey. In Casey and Stenberg, the Court
applied the undue burden standard to invalidate state restrictions on abortion. Among
federal courts of appeals, only the Fifth Circuit has continued to apply the Salerno
standard to facial challenges to abortion regulations. The undue burden standard is
believed by some to be a less stringent standard because it would render an abortion
regulation facially invalid if “in a large fraction of cases . . . it will operate as a substantial
obstacle to a woman’s choice to undergo an abortion.”10
While the First Circuit acknowledged that the Court has never explicitly addressed
the tension between the Salerno standard and the undue burden standard, it concluded that
8 Heed, 390 F.3d at 62.
9 481 U.S. 739, 745 (1987).
10 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 895 (1992).
the act should be subject to the undue burden standard. The First Circuit was persuaded
by the Court’s application of that standard in Casey and Stenberg, as well as the use of
the standard by a significant number of the courts of appeals.
The Attorney General maintains that the First Circuit should have applied the
Salerno standard when it evaluated the act. The Attorney General has cited Ohio v. Akron
Center for Reproductive Health and Rust v. Sullivan, two abortion cases from 1990 and
1991 in which the Court applied the Salerno standard, to support its position that the
Salerno standard is appropriate for evaluating abortion regulations.11 Moreover, the
Attorney General argues that the Salerno standard is consistent with the Court’s
traditional practice of adjudicating constitutional questions only in concrete cases and
controversies.
The respondents, however, insist that facial invalidation of the act is the only relief
that effectively protects the health of minors. They argue that minors challenging the act
on an as applied basis would have to “delay getting appropriate and urgently needed
medical treatment until they get a constitutional ruling permitting it.”12
The Court’s application of the undue burden standard in Casey and Stenberg would
seem to suggest that it no longer views the Salerno standard as appropriate for evaluating
facial challenges to abortion regulations. The Court’s refusal to review four abortion
decisions in which the undue burden standard and not the Salerno standard was applied
may further suggest that the Court endorses the use of the undue burden standard.13
The absence of a definitive statement by the Court concerning the Salerno standard
and its application to abortion regulations following Casey has prompted considerable
interest in Ayotte. If the Court reaffirms the use of the Salerno standard in abortion cases,
the wholesale invalidation of future abortion statutes seems unlikely. Individual plaintiffs
would have to challenge the constitutionality of an abortion measure as it was applied to
them. Delays that could accompany a plaintiff’s case would likely raise concerns about
the possibility that a woman’s health was being compromised.
In addition, a determination by the Court that an explicit health exception is not
necessary because of the act’s judicial bypass procedure and other New Hampshire
statutes would also be significant. Such a decision would likely have an impact on the
parental consent and notification laws that exist in forty-four states.14 It would seem
11 Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990); Rust v. Sullivan, 500 U.S.
12 Brief for Respondents at 23-24, Ayotte v. Planned Parenthood of Northern New England (No.
13 See Women’s Med. Prof. Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523
U.S. 1036 (1998); Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996), cert. denied sub nom.,
Leavitt v. Jane L., 520 U.S. 1274 (1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63th
F.3d 1452 (8 Cir. 1995), cert. denied sub nom., Janklow v. Planned Parenthood, 517 U.S. 1174th
(1996); A Woman’s Choice – East Side Women’s Clinic v. Newman, 305 F.3d 684 (7 Cir. 2002),
cert. denied, 537 U.S. 1192 (2003).
14 See Center for Reproductive Rights, Restrictions on Young Women’s Access to Abortion
(continued...)
possible that some state legislatures would amend their consent and notification
requirements to remove existing health exceptions.
Questions posed by some of the justices during the oral argument on Ayotte seem to
suggest that the Court might be willing to remand the case to the First Circuit to recognize
a health exception that would then make the act constitutional. It is uncertain how the
court would fashion such an exception. Responding to the justices’ questions, counsel
for the respondents indicated that allowing the First Circuit to find a health exception for
the act would likely have the effect of encouraging states to write patently
unconstitutional laws with the knowledge that a reviewing court would later correct any
constitutional flaws. A remand of the case is not guaranteed. It is still possible that the
Court could invalidate the act because of its lack of an explicit health exception. The
Court’s decision is not expected until 2006.
14 (...continued)
Services, at [http://www.crlp.org/pub_fac_restrictions.html].