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Published: Sunday, 1/22/2006

Rare abortion ruling

The fireworks over existing abortion law will have to wait until after the expected confirmation of Samuel Alito to the bench. That may be just as well for a Supreme Court in transition. There will be plenty of time to wade into controversy with major abortion cases awaiting the new court.

Still, any unanimity of the court on the subject is rare, and, in the case of a New Hampshire law, not insignificant. By agreeing to send the New Hampshire law back to a lower court to reconsider, some argue that the high court is effectively saying don't be so quick to invalidate entire abortion laws on their face.

That is a positive development for states' rights. It affirms their prerogative to regulate abortions through parental notification statutes and rejects the idea that entire laws should be stricken because of particular flaws.

In the New Hampshire case, one of those flaws includes the omission of the health exception requirement for abortion restrictions. In what was probably the last opinion Justice Sandra Day O'Connor will write for the court, she did not minimize the importance of the exception to protect the health of a pregnant woman.

What she did was weigh it in the full context of the regulation.

As an architect of the "undue burden" standard that gauges abortion law on exceptions made for a woman's health and safety, Justice O'Connor said the court agreed the New Hampshire statute could make it unduly difficult for some ill minors to get an abortion.

The state law requires a parent to be notified 48 hours before a daughter under age 18 has an abortion. Exceptions to the law include getting a judge's approval, or when the teenager's life is in danger, but not in cases of medical emergency.

On those grounds a federal judge and a U.S. appeals court ruled the state's law unconstitutional in its entirety. But the justices questioned whether the whole law ought to be invalidated when, as Justice O'Connor wrote, "Only a few applications of New Hampshire's parental notification statute would present a constitutional problem."

She said courts addressing flaws in abortion laws do not have to take the "most blunt remedy" and discard entire laws for specific failings. The justice acknowledged the high court was guilty of same when it struck down Nebraska's partial birth abortion law in 2000 because it did not contain an exception to protection of the mother's health.

The New Hampshire case returns to the 1st U.S. Circuit Court of Appeals in Boston, which ruled the law unconstitutional and struck it down completely.

The high court's decision could encourage other states, whose laws were likewise struck down, to revive or repass their abortion restrictions, producing even more litigation.

New Hampshire's victory could also be short-lived if the appeals court strikes the law down again and throws it back to the high court. But by then chances are the court's key swing voter on abortion rights will have long retired and been replaced by someone with a far more narrow interpretation of "undue burden."

Activists on both sides of the emotional debate find elements to applaud in the New Hampshire opinion and hail the advancement of their causes. But it's doubtful the looming battles at the Supreme Court revisiting abortion precedent will invite as much objectivity.



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