November 30, 2005

The oral argument in the abortion case.

David Stout reports:
Justice Souter challenged [New Hampshire attorney general, Kelly Ayotte's] assertion that a doctor who performed an emergency abortion would be "constitutionally protected" from prosecution or civil liability. "What do you mean when you say it would be constitutionally protected?" asked Justice Souter, who is from New Hampshire....

Ms. Ayotte did not budge, asserting at one point that even in the most dire emergencies, and when a judge might not be available to authorize an abortion in the absence of a parent, the doctor would be protected. When a parent is not available to give permission, the state law at issue empowers a judge to grant emergency approval.

Solicitor General Paul Clement, arguing for the Bush administration on behalf of the New Hampshire law, said critics of the New Hampshire statute had focused on "a one in a thousand" circumstance in which a teen-ager might need an abortion quickly, and that the entire statute should not be undone.

"And the real question for you is, faced with that kind of case, do you invalidate one thousand applications of the statute, noting that 999 of them are constitutional?" Mr. Clement asked rhetorically.

But Jennifer Dalven, a lawyer for Planned Parenthood of Northern New England, which challenged the law, said that even a minor delay can be disastrous. "As the nation's leading medical authorities have explained, delaying appropriate care for even a very short period can be catastrophic and puts the teen at risk of liver damage, kidney damage, stroke and infertility," she said.

Ms. Dalven met with some skepticism when she said that the provision for a judge's order can be a dangerous obstacle. "Once a minor arrives in the emergency room, it is too late for her to go to court," she said.

Justice Antonin Scalia wondered what would happen if the state created "a special office, open 24 hours a day" to field just such emergencies: " 'This is the abortion judge.' It takes 30 seconds to place a phone call."...

The New Hampshire bill's sponsors successfully fought against a health exception on the grounds that it would give doctors too big a loophole to avoid parental involvement in decisions about ending pregnancies. Justice Breyer acknowledged that point in passing, noting that "lots of people think 'health exception' is a way of getting abortion on demand."
Scalia's hypothetical may be interesting, but the state hasn't set things up like that, and the doctor is obviously in a better position to make the call. Even if we were assured there would always be an "abortion judge" by the phone, you'd still have to explain the condition which would presumably take some time. Why should someone have to endure the "risk of liver damage, kidney damage, stroke and infertility" for the time it takes to do that, especially considering that the doctor is the one with the medical understanding of the situation?

And what does Ayotte's assertion about 1000 applications of the statute mean? That every 1000 times it's imposed, one unfortunate woman suffers a serious injury? Why is that acceptable?

UPDATE: Listen to the whole oral argument here or download here.


jeff said...

What other surgical procedures, could you perform on a minor female without parental notification _and_ consent?

Hmmmm? Why should this be any different?

And since I'm sure that every 17 year old victim of a car accident that comes into the ER with a flailed chest is not accompanied by a parent or guardian - how do they handle that?

Personally, I think that if a doctor performed an abortion on a female that I was responsible without my knowledge or consent... he/she/it had better be ready to prove it was an emergency necessity in a court of law.

storkdoc said...


I've been an OB for 16 years and I have never seen a case where there was a need for an emergency abortion. If someone is going to suffer liver damage or organ damage then they're usually in the late 2nd trimester and they need to be delivered, not aborted. If there is a medical indication for delivery then delivery is what should be done. That's not what I would consideres an abortion.

Two years ago I had a patient present at 20 weeks with chorioamnionitis, (infection of the uterus and amniotic sac). The treatment for this is delivery even though viablility has not been reached. Was that an abortion. I guess technically it was, but without it that patient would have died. I don't do elective abortions, but I delivered this patient because it was what was necessary,

If someone is bleeding all over the place from the pregnancy and the mother is unstable, then once again the patient needs to be delivered. I don't know any OB's who'd disagree with that.

Emergency abortion seem like a way to try and avoid parental notification for an elective termination. Anything that threatens the life of the mother is not elective and needs to be done.

Ann Althouse said...

Normally, parents are informed, but the question is the intrusion of the state to the point where they are interfering with emergency care.

Uncle Jimbo said...

Dear Ann,

If it is an actual, albeit unlikely, emergency then the same rules governing any emergency care should apply. If not then the parents must be notified.

I would not want to be a doctor who aborted my grandchild because my 14 year old daughter was scared to tell me. The school needs permission to give her an aspirin, yet abortion deserves a complete lack of even parental knowledge. If parents expressly forbid abortion, then the child could apply to a judge. But to eliminate them from the whole process is scary.


Uncle J
Military Matters

Aspasia M. said...

It seems like an emergency room doctor is in a potentially bad legal situation if a minor comes in with an ectopic pregnancy. (And her parents are out of town, or can't be reached.)

I mean, couldn't the doctor be prosecuted by the state for operating, or else sued by the parent if he waited and the girl lost a fallopian tube?

I guess New Hampshire could open up a 24-hour, 7-day-a-week, Emergency Abortion Judge telephone hot line. (911 for emergency abortions?)

jeff said...


The state _already_ intrudes into emergency care - and every other kind of care as well.

This is just an attempt by the abortion industry to eliminate any roadblocks on their way to killing as many babies without interference as they can.

Oddly enough, there are those of us who disagree with their doing so.

Harkonnendog said...

Seems like a more sophisticated version of the coat hanger argument to me...

"What if an alien abducts and impregnates a teenage girl and an IMMEDIATE abortion is the only way to save the planet from the birth of a million pods of Microcrunchablia that, once born, would surely kill every human on the planet! What then judge?!? Shall we take a chance on destroying the human race in order to call some parent, who is probably a Christian (we know how they are, look at the Weavers!)and won't allow the abortion anyway???"

Sound like a crazy exageration? Not much crazier than the one cited here. I mean they'd have to be:
a) pregnant
b) a) without their parents knowing- that is not showing yet or having complete morons for parents
c) b) and happen to need an emergency abortion as opposesd to an emergency delivery
d) c) and also not have their parents around to give permission exactly when they need that abortion
e) d) and also not be in such obvious need that a doctor would have to make a judgement call that would leave him or her liable

Seems pretty farfetched to me. Is it normal to make law based on unrealistic hypotheticals?

John A said...

This is framed as an abortion issue, but it seems otherwise to me and I suspect will be ruled on as a "parental notification" issue.

And it was obviously staged to get something into SCOTUS. The NH counselor as much as admits it, agreeing a new bill could easily be designed and passed to remove the objections but no such bill has (apparently) been proposed.

Too, she claims that doctors who did not notify parents would not be prosecuted because of other law[s]: if so, this one is totally useless anyway. If not, can she be held in contempt?

bearing said...

I'm with Jeff here: All of the objections mentioned can equally well be raised against any laws that require parental notification/consent for medical care of any kind.

Surely doctors do not fear that they will be prosecuted if they perform emergency surgery on an adolescent for, say, injuries sustained in a car accident, without first getting the parents' permission.

So why is this any different?

Say no to special rights for abortionists!

Dash said...


Setting up a 24/7 system would not be difficult. Most doctors I know carry a beeper and cell phone evrywhere and routinely interact with nurses on care issues. a designated judge could do the same on a rotating basis.

However the issue here has nothing to do with that. The planned parenthood lawyer is assuming that a pregnant minor in the last minutes of a dire emergency finds her way not to an emergency room ( like the rest of us) but to an abortion clinic. And in this fairy tale that clinic is open 24/7 ... furthermore the only remedy appears to be an abortion. The fact that such a case has never been recorded doesn't seem to slow them down.

In reality this case would come to an ER room and be treated just like any other emergency. A minor in a car accident is triaged and stabilized while a parent or guardian is located. No Doctor is going to stand by and withhold treatment.

The problem for PP here is that most doctors don't agree that the trauma of a termination is the only or best first step in stabilizing a sick child. I challenge you to find one ER Doc who has done a single abortion in the last five years. It doesn't happen in the ER room because it's not an emergency.

Furthermore, PP keeps confusing minors with adults. In our society unemancipated minors have few rights. They can't vote, they can't drive, they can't drink alchohol, they can't buy cigarettes, they can't enter into legal contracts, they can't view R rated movies etc... Why should they be able to get an abortion?

Aspasia M. said...

For any readers who know about law and emergency room situations:

Under present day law, can a doctor operate on a minor without permission if it is an emergency?

My other question would be, does an explicit statute that requires parental consent alter the legal situation of the emergency room doctor?

And finally, would a doctor feel comfortable operating on an ectopic pregnancy in a minor under this explicit statute? (if caught early enough, an ectopic is not life threatening. But the sooner it is treated, the more likely that the woman's future fertility will be saved.)

Info on ectopic pregnancies:

I knew a woman trying to have a baby who had an ectopic pregnancy. I was surprised to find out that 1 in 50 pregnancies are ectopic. If an ectopic isn't caught soon enought it can make pregnancy more difficult or impossible. (If you're not familiar with an ectopic pregnancy, it's a pregnancy that is impossible to carry to term.) An ectopic pregnancy can often be mistaken for a regular pregnancy in the first few weeks. Sorry if this is too much information, but it seems relevant to the New Hampshire case.

For more on ectopic pregnancy:

Jack Roy said...

Prof. Althouse---

Isn't Ayotte's point about "substantial overbreadth"? That is, if the unconstitutional application would be as rare as indicated, my recollection of that dark corner of con law is that the remote hypothetical case where the statute would be unconstitutionally applied wouldn't suffice to make the entire statute unconstitutional on its face.

It's been a while since I've thumbed through Gunther, though, let alone Hart & Wechsler.

mcg said...

I have to agree with Ann on the 1 vs. 1000 statement---that seems very questionable to me. I don't like the idea of a judge effectively rewriting the law by declaring a portion of it constitutional and a portion not---unless, perhaps, the legislation itself is clearly delineated into independent sections that could be considered separate laws.

The proper way, IMO, would be for the judges to toss the whole darn thing and give clear guidelines as to what modifications would be required to make it constitutional.

But on the issue of the parental notification law itself, I have to agree with those who side with the state. It seems to me that the same guidelines that allow doctors to perform emergency medical procedures without parental notification or permission apply here.

Jack Roy said...

Whoops. Should be "Clement's" point.

gj said...

On the Scalia option --- a 24/7 judicial hotline that medical providers can contact --- that's an interesting hypothetical, but the statute in question does not require any such hotline, and one does not currently exist. So it seems disingenuous to use that mechanism to solve the problem.

As for the likelihood of these emergencies occuring: on medical questions, I trust the opinions of the American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists more than I trust the opinions of a New Hampshire State Legislature. Who would you go to if you had a medical question, a doc, or a state rep? These medical organizations and others submitted a friend of the court brief opposing the law. I interpret that as meaning that these medical scenarios do occur, even if they are unusual.

On Storkdoc's comment about "delivering" non-viable fetuses rather than aborting them: would the New Hampshire law recognize that distinction? Even storkdoc admits she was effectively performing an abortion. If the patient had been a minor in New Hampshire, wouldn't that have been a violation of the state law?

PWS said...

I think the point about parental notification for other emergency medical issues for teenagers leaves something out. In those other cases (car accidents, etc.), what parent is going to tell a doctor NOT to go forward with life saving medical care?

The abortion issue is so super-charged that the assumption seems to be that some parents might not give permission for an abortion even if it was needed for the health of their child? Is this a realistic assumption? (In fact, this sort of sharpens the issue on abortion: will parents choose what is only a biological potential life over their own daughter who they know and love?)(I know not all kids are loved, wanted, etc., but what does the ER do with run-away teenagers who come in for emergency medical care? They treat them, right?)

And for those cases where a teenager is electing an abortion, then the teenager will have time to get the judicial bypass.

Can kids get other elective sugery (such as plastic surgery) w/o parental consent? I don't think they can.

gj said...

PWS Wrote: The abortion issue is so super-charged that the assumption seems to be that some parents might not give permission for an abortion even if it was needed for the health of their child

No, the assumption is that some doctors are so anxious to provide abortions that they will lie about the medical emergency so as to help out a kid who doesn't want to tell their parents and doesn't want to talk to a judge.

I believe that most Americans agree about parental consent: it should be the same as it is for other elective (required) and emergency (not required) procedures. The problem is with the fringes on both sides of the argument. In this case, the pro-life fringe was more concerned about getting a test case to the Supreme Court and potentially sacrificing women's health then they were about passing a parental consent law. They could have easily passed a non-controversial parental consent law, but they chose otherwise.

storkdoc said...

Ectopic pregnancies are very different from elective terminations and really don't apply. If a patient comes in with hypotension, an acute abdomen and a positive pregnancy test that patient will go to the OR immediately to stem the bleeding. This will also result in the termination of a pregnancy but medically that is not an abortion. Would I do that without the permission of the parents if we were unable to reach them? Yeah I would, I'm not going to let the kid die.

If a teen came in with an early pregnancy and also had severe pulmonary hypertension which has a 30 to 50% mortality rate in pregnancy and the teen's parents refused a termination, I'd be going to court to get consent for it. However this is very rare, and is very unlikely to present emergently....

PWS said...

gj said:
No, the assumption is that some doctors are so anxious to provide abortions that they will lie about the medical emergency so as to help out a kid who doesn't want to tell their parents and doesn't want to talk to a judge.

OK, if that is the working assumption, then one problem with the NH law is that minors are being punished/burdened due to "dishonest" or "bad" docs. Minors are bound to be irresponsible, etc. That is an assumption built into much of the law applied to minors. But society expects more from doctors. Perhaps an attempt should be made to operationalize a higher expectation from doctors instead of casting a wide net over all minors.

Of course, isn't the "law in action" answer that doctors suspect that juries will forgive them for treating a teenager w/o parental consent when it mean sparing a young woman's future reproductive or other organs or her life? Or if they won't, the docs are willing to accept the consequences? Especially if the minor was impregnated w/o her consent? And in many states (if not most) a minor cannot legally consent to sex.

Mark Scarberry said...

I've only read Solicitor General Clement's amicus brief, but, according to it:

1. No parental notification is needed if the doctor writes a finding in the chart that the abortion was needed to preserve the minor's life. Also, no delay is needed (the 48 hour notice period does not apply) if a parent signs a certification that the parent has received notice of the intended abortion; in many emergency cases the parent comes to the hospital with the minor and thus there would be no delay, even if it were not a life-threatening circumstance.

2. The statute provides that the courts will be open 24/7 to hear requests for waivers of the notification rule, which is not quite what Justice Scalia suggests but may be similar.

3. The point is that under Salerno there needs to be an as-applied challenge to operation of the statute in emergency non-life threatening but health threatening circumstances, rather than a facial challenge that would void the entire statute as "unconstitutional on its face." The SG argues that such an as-applied challenge could be brought in advance by abortion providers, which would result in the statute being held unconstitutional only in certain circumstances if under those circumstances it imposed an undue burden. That is the ordinary rule outside of First Amendment cases. Ordinarily, under the Supreme Court's Salerno decision, a statute can be challenged on its face and completely invalidated only if it will always operate unconstitutionally; thus if this statute only operates to create an undue burden on the right to abortion in a small number of the cases to which it applies, there is a strong argument that the statute should not be invalidated in a facial challenge. (It is not clear to me, however, that such an as-applied challenge could be brought in advance, and there might be a case or two in which emergency abortions supposedly needed to preserve health in emergency non-life threatening circumstances might be delayed. The cases then would be heard under the exception to mootness for cases capable of repetition but evading review.)

John(classic) said...

I wonder if the Attorney General missed a good argument?.

I don't know the medical facts, but if they are as the commenters suggest, a very, very rare situation in which a delayed abortion would be life threatening, this seems to me a balancing question between harms.

For instance, I assume that New Hampshire has some doctors that are incompetent. Parental involvement would presumably decrease the risk of employing an incompetent physician.

I assume also that like most operations these days, its a "get them out of the clinic quickly" procedure, with the patient sent home with a long list of "call if this happens or that happens". Isn't a parent more likely to spot an infection, for instance, than a 16 year old?

Isn't that a legitimate state interest--that a parent be involved in a potentially life threatening procedure?

Aspasia M. said...


(thanks for the above information; I've got another question if you don't mind lending your expertise.)

I don't understand why the ectopic doesn't apply?

I listened to some of the oral arguments, and the ectopic pregnancy to me seemed like a possible problem with the statute:

(A sixteen-year-old girl doesn't know she is pregnant, and she is vising friends or relatives for the weekend. She feels ill and goes to the doctor or an emergency room. Then the doctor can't reach her parents because they have gone away for a romantic weekend.

Does the doctor need to call his lawyer?

If he knows that the N.H. legislature purposefully didn't add a health exception, can/should he still terminate the pregnancy, or should he wait for the parents to get home?)

I was also confused if the examples you were giving were the symptoms that identify an ectopic pregnancy.

thanks storkdoc!

Gabe said...

gj said:
No, the assumption is that some doctors are so anxious to provide abortions that they will lie about the medical emergency so as to help out a kid who doesn't want to tell their parents and doesn't want to talk to a judge.

Are the doctors so anxious to perform the abortions or are the minors so desperate to get the doctors to perform the abortions?

I (think I) know what you mean, but you made it sound as if doctors are lurking around dark corners waiting to lure minor girls into abortions that they don't want.

gj said...

geoduck, ectopic pregnancies are not viable.

gabe, the point is that anti-abortion activists believe that doctors will act dishonestly and use the health exception as a loophole so as to be able to perform abortions on minors without going through with the parental consent or the judicial override. I don't believe that doctors will be dishonest in that way, but that's the argument as I understand it.

Aspasia M. said...


"ectopic pregnancies are not viable."


Ok- I must be really dense here, but this statute is not just dealing with 2nd and 3rd trimester pregnancies.

Does the statute exclude ectopics?

No pregnancies are viable in the first trimester.

I'm obviously missing something here. Please explain.

Gabe said...

gj, Gotcha. Thats the argument as I understand it as well, and I disagree with it as well, so take my comment with toungue planted firmly in cheek.

Anyone - Isn't an eptocpic pregnancy one that takes place inside of the fallopian tube, is undeliverable, and is always life threatening to the mother? Clearly, I'm no doctor...

Ann - forgive my Naiveté on this issue (I'm still a semester away from Con Law), but hasnt the SCOTUS held that litigation of this type is unconstitutional without an exception for the health of the mother? Also, do they ever invalidate only one portion of a law that isnt clearly segmented as opposed to throwing out the whole and giving guidelines as to what would be acceptable?

Eli Blake said...

Excellent post by Ann.

At the very least, one has to wonder why the NH attorney general, knowing he was going to argue a case before the Supreme Court, hadn't thought through what would happen in the 'one case out of a thousand.'

But the point that Ann makes at the end is the best point that can be made. As things exist right now, all 1000 girls don't suffer the adverse consequences of this law. So if the law causes one to suffer from it, isn't that enough to say that it is a bad idea?

This is a poorly written law in regard to the 'health exemption' as well. Whether one considers 'health' to be a sometimes abused loophole or not, there are certainly cases in which a patient's health (be it reproductive health or some other aspect of health) could be jeopardized in which the patient's 'life' would not be. And forcing, for example, a fifteen year old to have a baby for which she is not ready, in exchange for being sterile later in life when she is ready to be be a mother, would be a horrible travesty.

The biggest worry I have about this was that I read today that while O'Connor is there asking arguments, Alito is likely to be the one voting on this when the court votes in February. We will see how Roberts goes, but I suspect it will be to uphold the NH law. I only hope that Kennedy sees this the right way.

storkdoc said...

Ectopics occur outside the womb. The typical ectopic occures in the fallopian tube. It will normally not progress much beyond the 12th week before it either causes the tube to rupture or aborts itself out of the end of the tube into the abdominal cavity.

It can't be transplanted into the womb and is always a threat to the life of the mom. So the treatment is if unruptured and small to treat with Methotrexate, a chemo drug, or if symptomatic because of bleeding into the belly by surgery. It's not an abortion because it won't ever achieve viablility.

Of course in medicine never say never.. there are examples of abdominal pregnancies going to term (outside the uterus, but not in the tube, and very life threatening to mom as it usually implants on the liver).
I've delivered a 33 wk ectopic, but it was thought to be in emdometrial cavity of the uterus, but at c-section it was found to have developed in the myometrium of the uterus... all medical mumbo jumbo for it not being in the right place, but not in the tube

dick said...

I was just reading about this on another website where the blogger is anti-abortion. She commented that when she spoke at the Supreme Court along with Kim Gandy, the mother of a girl from New Hampshire who was getting an abortion without parental notification. The abortion went bad and the doctor had to wait to notify the parents before he could treat the girl. Not sure how true this is but if it is, then why should parental notification not be required. Also, if the school has to have parental approval to give an aspirin, why not to perform an abortion.

gj said...

We are discussing the legal and medical niceties of this case, but I think it's important to also bring up the broader effects of the case in terms of the public discussion of abortion.

The "Headline News" description of this case is "Parental Consent for Abortion: New Hampshire wants it, Planned Parenthood opposes it." Because most people in the country support parental consent laws, this makes Planned Parenthood look extreme.

But, in fact, that's not really what the case is about. The case is about allowing (or not allowing) an exemption for the health of the pregnant girl. The politicians who are opposed to abortion have very skillfully poisoned a parental consent bill in way that (a) forces abortion supporters to oppose it, and (b) makes them look extremist for opposing it by taking advantage of the shorthand used by the press and the public's extremely limited attention span.

The other aspect of this case is that is an attempt to shift the relative values placed on a woman's life/health, and on the life of a fetus. NARAL would say that fetal life has no value. The most extreme pro-lifers would say that fetal life takes precedence, and that abortion should be illegal, even to save the life of the mother.

Very few Americans agree with that most extreme pro-life view. Almost all support abortion to save the life of the mother, even among hard core Republican politicos. But the health of the mother is another matter. Shouldn't a caring mother be willing to sacrifice her health for her child? This law is an attempt to diminish the value of the woman's health, relative to the value of the ongoing fetal life. For people who care about the rights of women, or who care about the rights of fetuses, it's very important.

But it doesn't have anything to do with parental consent.

Eli Blake said...


If the school has to have parental approval to give aspirin, why to perform an abortion?

(Of course, a school would not give aspirin in the first place because due to the risk of Reye's syndrome, you should give alternative products to persons under eighteen, but aside from that, to answer your question):

For one thing there are no parents who would beat or otherwise abuse their daughter for taking aspirin, but there are plenty of them out there who would do so if they thought their daughter was sexually active (and having an abortion pretty much proves that). I know doctors who have treated kids who have been abused horribly by their parents, and among teen girls sexual activity is probably the #1 reason (ahead of drugs, gangs or other excuses-- none of which are valid, btw). You may not have talked to a doctor who had to work on a teenage girl whose face had literally been ripped off by her father; I have. And you would be surprised (clearly, since your question seems to take for granted that there is no reason not to tell the parents) at how many teenage girls have been impregnated by a family member.

Second, even in a nonabusive situation, there could be a great number of reasons why she wouldn't want to tell her parents-- for example, if they would likely force her to drop out of school and keep a child she knows she is not ready for.

Also, this law was not written in response to a case like you suggest with Ms. Gandy; If that were true, it would be easy enough to append existing law to allow a doctor to also treat complications arising from an abortion immediately.

Finally, for anyone who still thinks this law is a good idea-- it wouldn't stop underage girls from getting abortions. Just instead of going to a clinic, they would go to someone who would claim they could do it without telling their parents. Probably people who wanted to make a quick buck, had little or no medical knowledge, and very likely didn't practice sanitation like what is required in a clinic. Just stop and think about that for a moment.

chuck b. said...

Not much attention to the anti-notification side. I’ll nibble.

A commenter wrote, “They can't vote, [etc.,] etc... Why should they be able to get an abortion?"

Because she doesn't want to have the baby, and she doesn't trust her parents.

I’m not wholly opposed to parental noification—-I think that parents should be involved in their children’s lives as much as possible (esp their minor children). And I'm not inclined to think a significant number of kids have abortions without telling their parents, absent any hard data (no anecdotes!).

More to the point, I think it’s a mistake to apply middle class values to everyone who will be affected by this law. It’s nice to think all parents love their children, but it’s also quite wrong. Some kids are better off with their parents out of the picture.

Choosing whether or not to have an abortion is different than voting, drinking, and entering contracts. Those things are public policy matters that affect everyone, even people who don’t have children. Abortion does not. I don’t care about the neighbor’s abortion decision and I never will. That’s her right. And that right is her business, not mine, not yours, not Antonin Scalia’s at the other end of an imaginary abortion hotline.

JohnF said...

This emergency stuff sounds a lot like the battles that were fought with the state vs. Christian Science. Does anybody think this might provide some useful analogies?

vnjagvet said...

Having filled out forms for some of my children when they were under 18 and had emergency medical procedures, this case raised some questions for me which were not answered in the briefs or the oral argument.

Does anyone know at what age a minor can give "informed consent" for surgery or other invasive medical procedures in, e.g. New Hampshire?

Can the answer be as low as 13 or 14 years old?

Is (or should there be) an exception if the surgery or medical procedure in question is an abortion?

How is the issue of informed consent handled as a constitutional matter?

Aspasia M. said...

There is just no good reason for a legislature not to write in a exception for health emergencies in the statute.

I assumed that the statute in New Hampshire does not specifically exclude ectopics in this statute.

(Does it? I mean, leagally, the medical removal of that embryo is an abortion, isn't it? I could be wrong - does the statute state that the embryo has to implant in the uterus?)

I suppose I should read the darn statute.

Anyways, thanks everyone for the information. I hope that a doctor never pospones an emergency procedure because he is worried about the legal consequences of a statute like this.

mcg said...

The most extreme pro-lifers would say that fetal life takes precedence, and that abortion should be illegal, even to save the life of the mother.

Has anyone here ever actually seen this claim made by a pro-lifer, or is this just exaggeration? (And let's be sure to make the distinction that storkdoc did, in his/her comment 2nd from the top).

SarahWeddington said...

The obvious reason is that everyone knows that the health exception will be abused and will not be meaningful in any way. all it means is that an abortionist has to make a "good faith" judgment that the girl needs an abortion. has an abortionist EVER made a good faith judgment that a girl doesn't need an abortion? We all know the answer to that one.

Ann, as for your 1 out of 1000 comment. Are you then implicitly concedung that 999 out of 1000 abortions would be done for purely slefish reasons of convenience and that the health of the mother would be in no jeopardy at all? If so, that's a pretty callous view.

And there's plenty of laws out there that make small numbers of people suffer because of the majority. For example, 1 out 1000 girls may die or be harmed BECAUSE of the abortion but you wouldn't say all abortions should be banned just because we have to save those few girls that are harmed by it, or would you?

ChrisO said...

In response to the question "The abortion issue is so super-charged that the assumption seems to be that some parents might not give permission for an abortion even if it was needed for the health of their child? Is this a realistic assumption?" I think the Christian Scientist reference is a good one. There are many cases where parents have tried to withhold healthcare from a child because of religious reasons. And I think the potential for religious conflicts around teen pregnancy and abortion are quite high.

Which brings me to a point that isn't directly addressed by the law, but I think is germane. At what point can parents force a minor child to carry a pregnancy to term? For a child who's not ready to have a bay, or to handle the issues arounbd delivering a bay then giving it up for adoption, refusing to allow the child to have an abortion borders on neglect. The law has progressed from the point where children and their bodies were simply possessions of the parents, immune to interference from the state.

As a side note, Scalia's suggestion that there could be a 24 hour a day abortion judge available is ridiculous, and I hope just comes under the heading of thinking out loud. Does anyone really think justice will best be served by having a judge on a hot line dispense an instant opinion on such a crucial issue?

vbspurs said...

On the Scalia option --- a 24/7 judicial hotline that medical providers can contact --- that's an interesting hypothetical, but the statute in question does not require any such hotline, and one does not currently exist. So it seems disingenuous to use that mechanism to solve the problem.

You know, I'm fairly anti-abortion, and I don't qualify myself as a Libertarian, but this hypothetical hotline sounds goofy.

Not only is it unwieldy as in:

Who would man the hotline? Would it be an operator, who would patch it through to a "judge on call", as it is with us in the medical field? Or would it be a judge sitting by a phone bank per rota basis?

But it also strikes me as an extreme measure for what is a relatively uncommon need for judicial intervention.

And I presume it would be a Federal entity of sorts which would need to be created?

No, I'm sorry.

Justice Scalia usually has my vote of confidence, but this seems like a half-baked idea thrown out there for simply the sake of argumentation -- certainly not a plan to be acted upon.


SarahWeddington said...

no more ridicullous than allowing abortion on demand to be carried out uder the guise of a fraudulent health exception.

Aspasia M. said...


I'm no expert, but some states like Alabama, Idaho, and Indiana require parental permission (not just notification) for a minor to get an abortion. (There is a judicial bypass option.)

I don't know how the judicial bypass works and what the kid needs to prove to get the judicial bypass.

I assume that if a kid cannot get permission from one of their parents, or a bypass from a judge, then the parents have the right to force that kid to bear a child.

If I misunderstood any of this, I'd welcome clarification.

Eli Blake said...

Sarah Weddington:

The problem is that if you don't include a health exception, then you err in the other direction-- i.e. there are plenty of cases where a mother's health (reproductive or otherwise) could be harmed without the likelihood of death being involved.

And, if you consider that a fifteen year old has neither the maturity nor the understanding to choose an abortion for herself without telling her parents (the entire justification for having a law like this in the first place), then who are we to make a law that would force, for example, her to have a baby which she was not equipped to care for, at the price of (for example) permanent infertility so that she could not have any children later in life when she was ready?

You see, by not including the health exception in a bill like this, you have to argue that the fifteen year old is simultaneously not mature enough to make her own decisions about abortion, but is mature enough to be sterilized for life.

We (wisely) close juvenile jail records when a person turns eighteen so that adulthood represents a new start when mistakes made in childhood don't continue to haunt them during their lives, so why should a mistake of a sexual nature haunt someone who may want kids when they are married and ready for them?

Also, I raised some other objections at 10:07. Sometimes there are some very good reasons not to tell parents.

Eli Blake said...


Well, you heard the typical Scalia on display. He has a well-deserved reputation for shooting from the hip. Today was no different.

SarahWeddington said...

Eli Blake,

You obviously have no problems whatsoever with abortion on demand. That's certainly your right to feel that way. I disagree.

I have no problem with a health exception if it is for legitimate reasons. However, you and I both know that you won't accept it becuase you would allow the health exception to serve as fig leaf for all abortions.

Tell me, would you support a law that required notification in all cases where there wasn't a REAL, SUPPORTED BY EVIDENCE AND FACTS emergency?

In other words, let's say the 15 yr old wants an abortion because she just doesn't feel like going through with the pregnancy and she won't be able to hang out at the mall with her friends as much if she has a baby. There is NO HEALTH RISK WHATSOEVER. Would you support a law that requires her to notify her parent and that would punish any doctor who performed that abortion without notification by whatever penalty is provided for?

I think we both know the answer.

Al Maviva said...

A lot of the debate on this issue is just crap. We all know it's crap. The technical stuff doesn't matter. Injury, schminjury.

What matters, is that anything that is even remotely tinged with the slightest whiff of an impairment of that most penumbral of emanative rights, is opposed as if it were a fight against Satan himself, come with hell within him and hell all around him.

It doesn't matter how reasonable the restriction on abortion access might be - like, "no secret abortions provided at schools during lunchtime to girls under 12"- PP fights it. Nothing is a reasonable restriction to PP, and in fact the federal government's failure to offer free abortions, as well as taxi cabs to and from the abortion clinics, is seen as something of a travesty.

The wonderful irony in this, is that PP repeats "Roe v. Wade is superprecedent" when it comes to judicial nominees, yet in practice they have utterly rejected the Court's trimester framework, which said the woman's rights are paramount in the first trimester, the state's interest in the unborn life must be balanced with the woman's rights in the second, and the states interests could be paramount in the third.

Which sort of makes the super-diddly-ooper precedent argument being bandied about in the Senate w/r/t Sam Alito look pretty foolish.

I'd like to believe that compromise is possible, but when Barbara Boxer told Rick Santorum, in open senate session two years ago that the right to abort ends when the mother decides to take the infant home from the hospital, I think any hope of compromise pretty much died. This isn't about women and their bodies, it's about the triumph of a super-selfish libertine view of individual liberty.

ChrisO said...

Al Maviva

I don't think your cartoonish depiction of the arguments presented by PP do much to advance the conversation. I usually am skeptical about slippery slope arguments, but the Alito memos released yesterday are quite compelling, in my view. If you haven't seen them yet, they're memos he wrote in 1985 when he worked for the solicitor general's office in the Reagan administration. Alito states as a goal the overturning of Roe, but concedes that will be difficult. Instead, he recommends that the administration support various state efforts to limit abortion, as a backdoor method of whittling away at Roe. So you may caricature it as "anything that is even remotely tinged with the slightest whiff of an impairment of that most penumbral of emanative rights, is opposed as if it were a fight against Satan himself," but it's clear that PP has plenty to be concerned about.

I'd like to point out that I'm not making the argument that this disqualifies Alito for the Court, mostly because I don't want to hijack this thread.

gj said...

SarahWeddington said... everyone knows that the health exception will be abused and will not be meaningful in any way.

Sarah, do you have any evidence to support your contention that the health exception has been abused in practice, in states that have parental notification laws with a health exception? Independent sources preferred.

Stuart Buck said...

As a side note, Scalia's suggestion that there could be a 24 hour a day abortion judge available is ridiculous, and I hope just comes under the heading of thinking out loud.

Actually, it comes under the heading of having read the statute. The New Hampshire statute itself says:

"Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded such a pregnant minor 24 hours a day, 7 days a week."

Bladedoc said...

I'm a trauma surgeon and just wanted to answer some questions about emergency consent raised in earlier comments.

In emergencies, as the attending surgeon, I sign the consent for minors and all those who cannot give informed consent (intoxicated, unconsciouse, etc.) By doing so, I do take some risk onto myself and therefore have to be pretty damn sure that the risks of whatever procedure I think they need are balanced by legitimate benefits. E.g. if I get a 17yo college student in the ER with appendicitis, I will wait 8-12 hrs if I have to to get consent from the 'rents because the risks of perforation are low. OTOH if I get that same (unlucky) patient in the ER with a smashed spleen and they're bleeding to death, I won't wait.

IMO you don't need an exception for "the health of the mother" because of this fact. If the mother is really at risk for significant medical complications by delaying abortion the doctor would procede. If the doctor failed to procede for fear of litigation they would be liable under civil law for malpractice just as I am if I fail to operate on someone's bleeding spleen because I couldn't get consent. There may be other reasons to not require parental notification but the health of the mother is, I feel, purely a smokescreen as there is already mature mechanisms in effect to address it.

reader_iam said...

Excellent discussion.

I usually avoid joining in debates over abortion because I learned long ago that it basically gets one nowhere good. (Late spring, 1973: Sixth-grade debate unit in social studies. Lost a friend against whom I was pitted on an assigned debate topic of Roe V. Wade. I was the "for". And yes, I obviously attended a quite progressive, even liberal, middle school for the time.)

However, I will say that I think Al Maviva essentially has got it right (though the "super-selfish libertine" part is a too strong for me).

Part of the problem, as I see it, as that the "compromise," and therefore the debate, keeps getting moved. I'm not speaking of the legal arena--I'll leave that to the lawyers, except to again point out that the legal arguments are really a proxy for the societal, legislative debate that was prematurely cut off by the Roe decision. (Yep--I'm one of those. Regardless of my personal feelings and opinions about abortion over time, and they have changed in certain aspects, I think Roe was terrible overstepping of the line between the legislative and the judicial arenas.)

Anyway, to get back to my main point--sorry!--regarding the debate being moved. I remember a time when the heated discussion over abortion with regard to minors was parental permission, with or without redress to a judge in exceptional cases. The result of that debate, to put it simplistically, was parental notification. In other words, notification IS the compromise--or at least it was supposed to be. That's how the argument was framed, way back when.

Can you say "classic slippery slope," folks?

(And yes, I was and am a supporter of the notification compromise.)

YAMB said...

To Eli Blake:

Man, for a blog that's supposed to be read by a lot of lawyers, I can't believe no one's responded to your point about who votes. O'Connor's vote will not count IF she's no longer on the court when the decision comes down. Alioto doesn't get to vote on a case he didn't hear.

jeff said...

Which is why if the case isn't decided before Alito replaces O'Conner... they get to re-hear the entire thing again. At least according to the evening news.

lakema said...

I just keep coming back to one simple question. If you can't trust a minor to make a medical decision, why would you trust them to raise a child?

Their family would help you say? This is the all too common mistake of assuming normal values and healthy families in situations that would indicate otherwise.

Adoption you say? The original question applies, if you don't trust her to make the right decision wrt abortion, why would you assume different with adoption?

mcg said...

I just keep coming back to one simple question. If you can't trust a minor to make a medical decision, why would you trust them to raise a child?

We don't trust minors with a lot of things. Not to drive a car, not to buy alcohol, not to buy cigarettes, not to get their tongue pierced, not to get a tattoo, not to watch an X-rated movie, not to get all sorts of elective medical procedures, and even non-emergency necessary ones.

And that's the way it should be. Children are under the charge of their parents. The state should step out of the way and allow them to be, until it is proven that they are unfit due to true abuse and neglect. And sorry, failing to figure out that your child slept with her boyfriend and got herself pregnant is neither of those.

Their family would help you say?

Yes, I do.

This is the all too common mistake of assuming normal values and healthy families in situations that would indicate otherwise.

It is common, yes. But it is not a mistake. Sure, the fact that a child turns up pregnant is a sign that things aren't perfect in the family. But it is hardly a sign of severe abuse and neglect, like a kid showing up to school with bruises. In fact, in this society which outright encourages promiscuity among teenagers, instances of unwanted pregnancy are even less of a sign of things gone wrong at home than they used to be.

So it is simply an improper intrusion of the state to presume that the parents are unfit to participate in this critical decision in their child's life, and to prevent them from doing so. In no other non-emergency medical procedure is that done.

Furthermore, if there are complications from the abortion, it will suddenly become the parents responsibility. Suddenly, those very same people you don't think ought to be involved, do become involved. So if you so darn concerned to keep the parents out, then you'd better be willing to make every girl who wants an abortion without their parent's knowledge a ward of the state so that this new advocate can lead them through any subsequent related medical issues.

Adoption you say? The original question applies, if you don't trust her to make the right decision wrt abortion, why would you assume different with adoption?

And the original answer applies. We ought not be trusting the child with either decision, frankly, without parental involvement.

lakema said...

mcg, do you have any evidence whatsoever to back up your assertions? Here is something to think about when you pretend that pregnant minors must come healthy families.

According to Childrens Hospital:
-Almost 110,000 children were victims of substantiated sexual abuse.

-A Parent accounts for 87% of all cases of abuse.

You do the math and then tell everyone how not only should these parents ALWAYS be notified but that they should be trusted to care for yet another child.

lakema said...

Just for clarification that is 110,000 children PER YEAR(1999) are victims of substantiated sexual abuse.

The actual number is certainly much higher.

mcg said...

mcg, do you have any evidence whatsoever to back up your assertions?

In just about any other circumstance, the burden of proof is on the accuser, not the accused. That's the core problem with your argument. You're going to have to explain to me why that arrangement must somehow be modified in this one circumstnace.

Here is something to think about when you pretend that pregnant minors must come healthy families.

I pretend no such thing, because I don't have to. It is sufficient for my argument that a reasonable fraction of them do.

According to Childrens Hospital:
-Almost 110,000 children were victims of substantiated sexual abuse. -A Parent accounts for 87% of all cases of abuse.

*Gasp*! You mean to tell me that some parents are bad people? I had no idea! Thank you for showing me the light!

The only thing is, you've managed to provide absolutely no linkage of this data to the abortion debate. For example, you've provided absolutely no statistics that break down the number of minor abortions where the minor in question is a victim of parental sexual abuse. Zero.

But let's just be generous with you for a moment, and say that 10% of the minors who show up at a clinic wanting an abortion are pregnant as a result of incest. What you're telling me is that this justifies preventing the remaining 90% of parents, who have not abused their children in that way, from exercising their natural parental rights to make critical decisions on behalf of their children.

Now to be fair, the possibility that the child might very well be a product of abusive parents is a real one. But bingo! That's why there is the 24/7 judicial review option, built into the books! How about that! So we have the best of both words: Now we get the best of both worlds: the presumption of parental innocence, which is warranted both by tradition and statistics, and the ability to handle the unfortunate cases where that presumption is false.

Eli Blake said...

Sarah Weddington,

The problem is, that if you write a law WITHOUT a 'health' exception (as this one is) then it becomes illegal for the physician to perform the abortion even when there IS a threat to health.

No, I wouldn't support such a law. Go back to my 10:07 (last night) post. Now, if a girl comes in and says that she was impregnated by her brother, then what? Do you take DNA tests to prove it? Those generally take 3-6 weeks to come back, during which time the pregnancy is progressing (so then you change the limit on when abortion is legal to accomodate the DNA test, one of the few restrictions on abortions that the courts HAVE in the past upheld)? Suppose she claims she was impregnated by her uncle, but he refuses to take a test, and her parents (who think it was really her boyfriend) back up the uncle. And how does the court know, from what she tells them, whether her father will beat her up or not? Of course, she will claim he will. That may or may not be true. Err on the side of telling him when in fact it is true, and you could have a homicide case on your hands.

And also, if you have this law, what do you do about, say, the kind of people who are now cooking meth, getting girls in need of an abortion to go to them and get it done the 'old fashioned way?' without telling mom and dad. We create a black market where there was none before.

mcg said...

The problem is, that if you write a law WITHOUT a 'health' exception (as this one is) then it becomes illegal for the physician to perform the abortion even when there IS a threat to health.

Without parental consent, this is true for just about any medical procedure, unless the threat is imminent. And doctors are accustomed to making such distinctions already. So again, why isn't the existing mechanisms for medical practice sufficient.

mcg said...

It's absurd to suggest that the rights of the vast majority of parents ought to be sacrificed for a few corner cases. Such cases are the exception---at least that should be the presumption if you can't produce any evidence to the contrary. And the law should treat them that way---which it does, by providing the default practice of notification with the exceptional provision for judicial review.

Aspasia M. said...

It seems to me that girls can be separated into two major groups:

the girls who will tell their parents they are pregnant and the girls who will not.

The parental notification or permission statute does not change the behavior of the first group.

In the second group there are all sorts of familial situations ranging from loving parents to unspeakable ones.

The options of these kids are fairly obvious:

Some of these kids will tell their parents, some will get a judicial bypass, some will hide their pregnancy as long as possible, some will get a fake ID, some will drive into another state or to Canada, some will look for a black market, and some will try to do it themselves.

Eli Blake said...


And you will undoubtedly see more cases like the Peterson/Grossberg case of a few years ago (where a baby is born alive and then murdered or tossed into a dumpster). In fact, we already see enough of these cases that they rarely make it any further than the local news anymore (the first time it happened, it was huge news). My guess is that the increase in the number of these cases is because of how many more teens are finding it either too inconvenient or too expensive to go to an abortion clinic. And with this bill, it will certainly add one more layer of paperwork to both of those scores.