Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, January 20, 2006

Case Law Development: United States Supreme Court Remands New Hampshire Parental Notification Statute for Narrower Remedy

In a narrow, unanimous decision authored by Justice Sandra Day O'Connor, the United States Supreme Court found that portions of a New Hampshire statute that required parental notification of abortion were "intolerably vague" but did not affirm the court of appeals decision declaring the entire statute unconstitutional.  Instead the court remanded for consideration of narrower remedies.

The New Hampshire statute, like that in about 40 other states, required a physician to give at least 48 hours written notice to the parent or guardian of a minor seeking an abortion.  Minors could petition judges to authorize the abortion without parental notification and no notice would be required for an abortion necessary to prevent the minor’s death if there is insufficient
time to provide notice.  Unlike most states, however, the Act did not explicitly permit a physician to perform an abortion in a medical emergency without parental notification.

Justice O'Connor emphasizes in her opinion that "We do not revisit our abortion precedents today, but rather address a question of remedy." Thus, she presents the legal conclusions regarding the statute as well-settled principals:

First, "States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy" and second, "a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the mother.” (internal quotations omitted)  Given that the statute provides no exception for medical emergencies and finding that the judicial bypass procedure was no substitute, the question for the court was whether these constitutional infirmities required voiding the entire statute.

The court distinguished its prior holding in Stenberg, where Nebraska's partial birth abortion law was struck fora  similar failure to protect the health of the mother, on the basis that "the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn."  Justice O'Connor suggests that courts should prefer "to enjoin only the unconstitutional applications of a statute while leaving other applications in force" or to "sever its problematic portions while leaving the remainder intact" if that is consistent with legislative intent and does not require the court to engage in its own re-drafting of the statute.  Accordingly, the court remanded to the trial court for a consideration of whether legislative intent would allow declaratory and injunctive remedies short of declaring the entire statute void. 

Ayotte v. Planned Parenthood, 2006 U.S. LEXIS 912 (January 18, 2006)
Opinion available on the web  (last visited January 19, 2006 bgf)

For news reports on the decision, see "Supreme Court sidesteps abortion issue" by Linda Greenhouse of the New York Times (reprinted in the St. Louis Post Dispatch) or the articles based on the Associated Press reports on upcoming state legislative battles on abortion (as reported here at

Abortion | Permalink