Ayotte v. Planned Parenthood of N. New England (04-1144)

Appealed from: United States Court of Appeals, First Circuit

Oral argument: Nov. 30, 2005


Under the New Hampshire Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. § 132:24-28 (2003), parental notification is required before a minor can obtain an abortion. Among the few exceptions the statute provides is for cases in which the minor's physician cannot satisfy the parental notification requirement before the minor will die. However, there is no explicit exception to allow for an abortion without parental notification where the minor will sustain non-fatal injuries if the physician refrains from performing the abortion in order to satisfy the Act's parental notification requirement. Respondents, Planned Parenthood of Northern New England and others, claim that the Act is unconstitutional because it (1) lacks a specific exception to the notification requirement where the minor's health is imperiled and (2) because the death exception provided is too narrow. Petitioner New Hampshire claims that a health exception is not required because of the interests the Act seeks to protect—the potentiality of human life and the protection of minors from undertaking a risky operation without the advice and support of the minor's parent(s). The lower courts agreed with Planned Parenthood and found that the Act was unconstitutional because of its lack of a specific health exception and because of the Act's narrow death exception. The Supreme Court's decision will have a major impact on parental notification laws. If the Court agrees with New Hampshire, then states will not have to provide explicit health exceptions in their abortion laws. Further, New Hampshire's death exception will stand in its current state, providing for criminal liability where a physician acts at least negligently in performing an abortion without notification.

[Question(s) presented] | [Issue(s)] | [Facts] | [Discussion] | [Analysis]

Questions Presented

1. Did the United States First Circuit Court of Appeals apply the correct standard in a facial challenge to a statute regulating abortion when it ruled that the undue burden standard cited in Planned Parenthood of S.E. Pa. v. Casey, 505 U.S.833, 876-77 (1992) and Stenberg v. Carhart, 530 U.S. 914, 921 (2000) applied, rather than the “no set of circumstances” standard set forth in United States v. Salerno, 481 U.S. 739 (1987)?

2. Whether the New Hampshire Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. § 132:24-28 (2003) preserves the health and life of the minor through the Act's judicial bypass mechanism and/or other state statutes?



Whether New Hampshire's Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. § 132:25:I (2003), which requires parental notification prior to a minor obtaining an abortion, should be reviewed under the “undue burden standard” from Planned Parenthood v. Casey, or the “no set of circumstances standard” from U.S. v. Salerno, and whether the Court should deem the Act unconstitutional for failing to provide an explicit exception for the preservation of a pregnant minor's health despite the Act's judicial bypass mechanism and/or other state statutes which may provide a functional equivalent to an explicit exception.



In 2003, New Hampshire passed the Parental Notification Prior to Abortion Act, N.H. Rev. Stat. Ann. § 132:25:I (2003) (“the Act”). The Act prohibits a physician from performing an abortion on an unemancipated minor, without first providing written notification to the minor's parents or guardians at least 48 hours in advance of the procedure. The Act provides exceptions to the parental notification requirement in cases where “the abortion is necessary to prevent the minor's death and [where] there is insufficient time to provide the required notice; or the [parents] certify in writing that they have [already] been notified.” N.H. Rev. Stat. Ann. § 132:26:I (2003). The Act also provides for a judicial bypass of parental notification, in which a state judge determines that the minor is sufficiently mature or capable of giving informed consent, or if the judge deems the abortion to be in the best interest of the minor. Any physician who violates the Act is guilty of a criminal misdemeanor, and is also liable to suit by the minor's parents or guardians.

The Act was to pass into law and take effect on December 31, 2003. However, on November 17, 2003 plaintiff and appellee, Planned Parenthood of Northern New England (“Planned Parenthood”), along with three other parties, filed suit against the state of New Hampshire in the Federal District Court for the District of New Hampshire. Planned Parenthood sought a declaratory judgment against the constitutionality of the Act and an injunction to prevent the Act's enforcement on the grounds that the Act is unconstitutional in that it (1) fails to provide an explicit health exception to the parental notification requirement to protect the health of the pregnant minor; (2) that the death exception is restrictively narrow; and (3) that there is insufficient protection of a minor's confidentiality in the judicial bypass process. Planned Parenthood, hoping to prevent the Act from coming into effect, argued that the Act creates an undue burden on the minor's right to choose an abortion, and thus runs afoul of the standard set forth in the Supreme Court decision Planned Parenthood v. Casey, testing the constitutionality of state abortion laws. See 505 U.S. 833, 1992, Ultimately, the district court held on December 29, 2003, just two days prior to the effective date of the Act, that the Act was unconstitutional under Casey, and enjoined its enforcement.

The Attorney General for New Hampshire, Kelly Ayotte, appealed the case to the Court of Appeals for the First Circuit, arguing primarily that the district court should have applied a different standard rather than the “undue burden” test from Casey. The Attorney General argued that the Act should be upheld unless “no set of circumstances exists under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739, 745 (1987). This vastly more lenient standard would all but guarantee the constitutionality of the Act. The Attorney General also argued that, substantively, an exception for the health of the pregnant minor could be inferred from various other New Hampshire statutes protecting healthcare professionals who render emergency care without consent. Further, the Attorney General argued that the death exception was not unconstitutionally narrow because a physician can only be held criminally liable for deciding on the necessity of an abortion to save the minor's life if the physician acts “purposely, knowingly, recklessly, or negligently” in making that determination. N.H. Rev. Stat. Ann. §626:2:I (2005). Finally, the Attorney General claimed that the judicial bypass mechanism available to pregnant minors specifically calls for the proceedings and appeals of the bypass procedure to be confidential.

The Court of Appeals affirmed the decision of the district court and found the Act unconstitutional, agreeing with the district court and with Planned Parenthood that the “undue burden” test of Casey should apply. The court noted that all other Federal circuit courts, save the Fifth Circuit, have adopted the standard set forth in Casey over the standard in Salerno. Essentially, the Court of Appeals held that any state law that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion is unconstitutional. The First Circuit reiterated the constitutional requirement of a health exception to a parental notification requirement when the pregnant minor's health may be adversely affected. In doing so, the court rejected the Attorney General's argument that existing laws protecting health professionals who render emergency care would serve the same effect as an explicit health exception. The Court of Appeals also affirmed the district court's finding that the death exception was too narrow, because it would, in the words of one of the plaintiffs, “[force] doctors to think about criminal prosecution at a time when we need to be concentrating on doing what is best for our patientsÉ.” Planned Parenthood v. Heed, 390 F.3d 53, 64 (2004) (citing Decl. of Wayne Goldner, M.D., at ¦ 19). The Court of Appeals did not find it necessary to decide on the issue of the sufficiency of the Act's confidentiality provision, as it found the Act unconstitutional on the other grounds discussed.

The Attorney General for New Hampshire has appealed the Court of Appeals' decision to the Supreme Court, in a final effort to hold the state's law as constitutional.



The individuals who will be most directly impacted by the Supreme Court's pending decision are those persons targeted by the New Hampshire Act: unemancipated minors (children under the care of their parents) seeking abortions without parental notification, the parents of these minors, and the doctors who perform such abortions. The Supreme Court's decision in this case, on the most basic and practical level, will determine if the Act is constitutional, and if so, if in whole or in part. If held constitutional in its entirety, unemancipated minors in the state may not be able to receive abortions, nor may doctors be able to perform them, without first relaying notification of the abortion to the minor's parents.

Minors seeking abortions could be greatly affected by the Act. Absent the First Circuit's decision, minors would no longer be able to obtain abortions without evidence that their parents were notified of the pending procedure, or would need to fall under a narrow range of exceptions that include grave and immediate risk of life or completing a judicial proceeding to bypass notification. As many children are likely to be fearful of their parents' anticipated distress, disappointment, or anger in learning of the pregnancy, minors with legitimate or perceived concerns of severe reproach or abuse would be hard hit if the Supreme Court overturns Heed and the law is found constitutional.

Parents of minors seeking abortions would also be directly impacted by the Court's decision in this case. Many parents would find it reasonable or even obvious that they should receive prior notification of any major medical procedure performed on their children, so that they can be aware of, involved in, or in control of such major decisions in their children's lives. Such parents would not only support the Supreme Court's overturning of the First Circuit's Heed decision, but would also support a revised parental notification law that includes an explicit health exception that the Act currently lacks. However, some parents may worry that their teens might opt for unsafe, illegal abortions rather than be subject to the parental notification requirements for a legitimate procedure. Still others may agree with Planned Parenthood in believing that the state's attempt to dissuade abortions through the law will result in a hostile environment for a child with a legitimate emergency health condition, but who is not in immediate risk of death. These parents would support the upholding of Heed and a finding of unconstitutionality.

Doctors performing abortions on unemancipated minors would be responsible for ensuring the parental notification required under the law, and would possibly be subject to criminal and civil liability if they fail to do so. If the Supreme Court finds the Act unconstitutional, then it is likely that any parental notification law passed by a state will require an explicit exception accounting for the health of the pregnant minor. It is likely that New Hampshire, and other states desiring such legislation, will have to draft or redraft their laws to reflect any strict limitations applied by the Court's holding.

This case also has broad implications for women and doctors in other states where legislatures are interested in passing parental notification laws. New Hampshire's law would place stricter limitations on abortions by narrowing the acceptable exceptions previously applied to parental notification laws. If the Supreme Court overturns the First Circuit Court's decision, it may signal that a specific health exception is not a necessary requirement in passing parental notification laws. In such a case, the Supreme Court could state so in broad terms, and find that a “death exception,” where, for example under the New Hampshire Statute, only the prevention of death to the minor with insufficient time in which to contact the parents, qualifies as a health-related exception to the parental notification law. See N.H. Rev. Stat. Ann. §132-26:I(a). On the other hand, the Court might find that a general health exception is required, but that it may be intelligibly inferred from the state's existing laws, as New Hampshire argues its law is. Alternatively, if the Supreme Court holds that parental notification prior to abortion laws are unconstitutional without explicit health benefits, then New Hampshire and other states would be barred from passing such laws.



Lack of Explicit Health Exception

Respondent Planned Parenthood claims that all parental involvement laws restricting abortion are facially invalid if they do not contain an explicit health exception. See Brief of Planned Parenthood in Opposition. This argument is based on holdings found in a line of Supreme Court abortion cases, which contain language to the effect that laws regulating abortions must contain exceptions to protect the health of the woman. See Roe v. Wade, 410 U.S. 113, 164-65 (1973) (holding post-viability abortions must also contain exceptions for preserving the life or health of the mother); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“[T]he essential holding of Roe forbids a State from interfering with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health. . . .”); Stenberg v. Carhart, 530 U.S. 914, 931 (2000) (holding a Nebraska “partial-birth” abortion law is unconstitutional, in part because it lacks an exception to preserve the health of the mother (citing Casey)). Planned Parenthood further states that from the Stenberg case, the constitutional requirement of a health exception is independent of the “undue burden” test outlined in Casey. See Heed, 390 F.3d at 58.

Arguments for the Petitioner, Attorney General of New Hampshire Kelly Ayotte (“New Hampshire”), include the claim that the woman's health is sufficiently safeguarded by the Act's existing exceptions. First, notice will not be required if the abortion is necessary to prevent the minor's death, and there is insufficient time to provide the notice. See N.H. Rev. Stat. Ann. §132-26:I(a). Second, notice is not required if the parents certify in writing that they have already been notified. Id. Third, notice is not required if the minor successfully obtains a judicial bypass, which will be granted if a judge determines that the minor is mature and capable of giving her own informed consent, or if the minor's best interests would be served by waiving parental consent. §132-26:II. New Hampshire claims that the third exception, judicial bypass, sufficiently stands in for an explicit health exception, and that the twenty-four hours a day, seven days a week availability of a judge protects the minor in such a “hypothetical case where an emergent health issue arises and the minor does not wish to or cannot notify a parent.” See Brief of Ayotte at 6. Though Planned Parenthood claims that the statutory two calendar weeks allowed for the bypass and appeals process to proceed, N.H. Rev. Stat. Ann. § 132:26:II(b), (c), does not account for medical emergencies requiring immediate action, the Court may agree with the state of New Hampshire that “there is no reason to believe that a judge will not act immediately if a pregnant minor's health is at stake.” Brief of Ayotte at 7.

Narrowness of Death Exception

Planned Parenthood may also claim that the death exception in the New Hampshire statute is unconstitutionally narrow. Heed, 390 F.3d at 56. An exception is required “where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother.” Casey, 505 U.S. at 879. The exception that the New Hampshire statute provides states that parental notification is not required when a physician is able to conclude that the abortion is “necessary to prevent the minor's death and there is insufficient time to provide the required notice.” N.H. Rev. Stat. Ann. § 132:26:I(a). Planned Parenthood's argument may be that physicians will be put in the difficult position of having to choose between potentially violating the statute, if the physician chooses to go ahead with an abortion (which in hindsight may not have been necessary) or gambling with the minor's life (if the physician chooses to wait out the 48-hours to comply with the Act's notification requirement). See Heed, 390 F.3d at 63. For Planned Parenthood, this is a decision that few if any physicians will want to make, thus making it especially difficult for a minor to obtain an abortion in a potential life-or-death scenario. Id.

The Petitioner Ayotte's response to Planned Parenthood's argument may assert that the statute is sufficiently specific and that physicians will be able to rely on their “good faith medical judgment in determining whether her patient's life is in danger.” Id. The Petitioner may claim that in order for the physician to be guilty of a misdemeanor, the physician would have to act purposely, knowingly, recklessly or negligently in making his decision. Id. Thus, the physician will be able to exercise his or her own discretion, and will only be liable if he or she acts with one of the four aforementioned states of mind. Id. However, the district court previously rejected this argument, because the court concluded that reasonable minds could differ as to whether a physician's actions were negligent or not, if negligence is one of the four triggers for liability. The district court explained that when it came to deciding the necessity of an abortion, the State would be able to find at least one doctor in every case to testify that the physician acted negligently. Id at 63-64. Thus, Dr. Wayne Goldner, one of the plaintiffs in the complaint stated, “the Act forces doctors to think about criminal prosecution at a time when we need to be concentrating on doing what is best for our patients, thus creating unnecessary risk to patients' health and lives.” Declaration of Wayne Goldner, M.D. at ¦ 19. The Appellate Court agreed with Planned Parenthood that the risk that a physician may not perform an abortion on a minor who needs a life-saving abortion, because of the fear of prosecution, constitutes an undue burden. Heed, 390 F.3d at 64.

Standard of Review: Casey or Salerno

Currently, there is an uneven split among the Circuits as to whether courts should use the Casey or Salerno standard in analyzing state abortion laws. The majority of the Circuits follow the Casey standard, which says that an abortion regulation is unconstitutional on its face—meaning that under no set of facts is it constitutional—if “in a large fraction of cases in which [the regulation] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion,” and thus imposing an “undue burden” upon the woman. Heed, 390 F.3d at 57 (quoting Casey, 505 U.S. at 876-77). A minority of the Circuits apply the Salerno standard, which requires that in order for an abortion regulation to be facially invalid “no set of circumstances exists under which the Act would be valid.” The Circuit Courts will look to the Supreme Court to settle which standard should be applied in cases involving disputed state abortion regulations. If the Supreme Court chooses the Casey standard, it will not matter that there are certain instances in which the state abortion regulation is valid and does not impose an “undue burden.” Rather it will have to show that an “undue burden” is imposed “in a large fraction of cases.” However, if the Supreme Court adopts the Salerno standard, if a party can show that there is at least one situation in which the regulation is valid, then the court will not be able to declare the regulation facially unconstitutional.



The Supreme Court will further shape its abortion jurisprudence with this case. Substantively, the Court will decide whether a state law regulating abortion through parental involvement requires an explicit health exception as required in prior landmark abortion holdings. The outcome will bring into focus the level or stage of medical crisis at which a state may continue to regulate patients' and doctors' decisions on abortions. It will likewise influence existing abortion regulations in other states, some of which do not contain an explicit health exception. The Court will also decide whether a death exception in such legislation may be broadly inferred from outside legislation, or whether a statute must explicitly delineate the boundaries of liability for doctors using their best judgments in determining when their patients may qualify for the exception. Finally, the Court's decision on choice of law will provide guidance for all states passing or contemplating legislation regulating abortion; the Court will either enforce a high hurdle for regulations to pass muster (Casey), or will grant a more lenient standard (Salerno) to the states, thus allowing greater state control in setting abortion regulations.



Prepared by: Aseem Gupta and Kenneth Hwang

Additional Sources