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Because the New Hampshire abortion restriction at issue in this case did not have a medical emergency exception, the U. S. Supreme Court held the law unconstitutional. It sent the case back to the lower courts to determine how best to fix the violation. In doing so, the Court instructed the lower court to consider whether the New Hampshire legislature would have wanted this law with a medical emergency exception. If not, the Court said the law should be struck down in its entirety. No matter what, the Court said the law cannot be applied in medical emergencies.

What was at stake in Ayotte for abortion rights?

In appealing this case to the Supreme Court, the New Hampshire Attorney General Kelly Ayotte urged the Court to undo important legal protections for women’s health.

* The state Attorney General asked the Court to reverse the long-standing requirement that abortion restrictions must include protections for women's health.

* In addition, the state Attorney General, joined by the Bush Administration, urged the Court to significantly limit the ability of doctors and women to stop dangerous abortion restrictions before they can cause serious harm to women. For decades, women and their doctors have been able to go to court to challenge dangerous abortion restrictions before they go into effect and before any woman could be harmed. In Ayotte, the government argued that courts should require doctors to wait until their patients risk immediate harm before bringing a legal challenge.

How did the Court resolve the issues raised by Ayotte?

The Court rejected the state’s invitation to erode protections for women’s health, and instead reiterated the long-standing requirement that abortion restrictions must allow doctors to perform abortions that are “necessary, in appropriate medical judgment, for the preservation of the life or health of the [pregnant woman]."

At the same time, however, by authorizing courts to fix unconstitutional laws, the Court gave the green light to politicians to pass abortion restrictions that fail to protect women from harm. Before Ayotte, legislatures across the country understood that if they passed abortion restrictions that failed to include protections for women’s health, for example, courts would likely strike down the entire law. In light of Ayotte, courts considering challenges to abortion restrictions may decide to declare only part of the law unconstitutional and leave the rest of the law standing. The Court’s ruling in Ayotte effectively lets legislatures off the hook. They can pass dangerous laws that lack protections for women’s health, forcing women and their doctors to bring legal challenges and leaving it to courts to fix unconstitutional measures.

What are the next steps for this case?

The Supreme Court sent the case back to the lower courts. The trial court in New Hampshire will first determine whether the New Hampshire legislature would have wanted the law with an appropriate health and life exception. If not, the whole law will be struck down. If, however, the courts find that the legislature would have preferred a law with the necessary exception to no law at all, the courts will hold that the law cannot be applied in emergencies but will otherwise allow the law to take effect. (The court will do so only if there are no other constitutional problems with the law.)

Why do women need emergency abortions?

Some women experience complications during a pregnancy that require immediate abortions to protect their health. Depending on a woman’s condition, delaying an emergency abortion could lead to liver or kidney dysfunction, infertility, blindness, or chronic pain.

What is the New Hampshire law about?

The New Hampshire law in question prevents doctors from performing an abortion for a teenager under the age of 18 until 48 hours after a parent has been notified or unless the teen goes to court and gets a judge’s permission to have the abortion. Contrary to Supreme Court precedent, the law contains no medical emergency exception to protect a pregnant teenager if the delay would harm her health. The lower courts struck down the law because of this omission.

Who challenged the New Hampshire Law?

The New Hampshire providers challenging the law are Planned Parenthood of Northern New England, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth, and Wayne Goldner, M.D.

These providers are represented by Jennifer Dalven, Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, and Diana Kasdan of the American Civil Liberties Union; Dara Klassel of Planned Parenthood Federation of America; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, of Nixon Raiche Manning Vogelman & Leach, PA and Legal Director of the New Hampshire Civil Liberties Union.

For more information on Ayotte v. Planned Parenthood of Northern New England et al., go to: www.aclu.org/scotus/2005/21286res20050922041144/21286res20050922.html