The new abortion case.

The Supreme Court has just taken up a new abortion case:

Justices will review a lower court ruling that struck down such a law in New Hampshire. The Boston-based 1st U.S. Circuit Court of Appeals said the 2003 law was unconstitutional because it didn't provide an exception to protect the minor's health in the event of a medical emergency....

In their appeal, New Hampshire officials argued that the abortion law need not have an "explicit health exception" because other state provisions call for exceptions when the mother's health is at risk. They also asked justices to clarify the legal standard that is applied when reviewing the constitutionality of abortion laws....

In its last major abortion decision in 2000, the Supreme Court ruled 5-4 that state abortion laws must provide an exception to protect the mother's health. Justices at the time reasoned that a Nebraska law, which banned so-called "partial-birth" abortions, placed an "undue burden" on women's abortion rights.

Since then, several lower courts have applied that health exception to abortion laws requiring parental notification. Since then, several lower courts have applied that health exception to abortion laws requiring parental notification. The New Hampshire case challenged whether the Supreme Court's 2000 ruling actually required that.

Abortion laws are "entirely different than parental involvement laws, which obviously do not purport to ban abortions, but simply seek to promote the interests of minors in having the benefit of parental involvement," New Hampshire legislators wrote in a friend-of-the-court filing.

Well, this ought to fire everyone up a little more about Supreme Court appointments, even though the question is a narrow one. It seems as though there are two ways to resolve the case: find that the state law actually has a health exception or find that parental notification laws don't require a health exception. The first ground seems to be entirely a matter of state law, however, and if that's the theory, maybe the Supreme Court should say that the federal court should have given the state court the chance to answer that question. (I'll explain that a bit more in an update very soon.)

UPDATE: Here's the 1st Circuit case the Supreme Court will be reviewing. A key problem is that there is a 48-hour waiting period following the notification and an exception only if it's necessary to save the young woman's life. That means a doctor could conceivably need to stand by for two days while a patient's health declines horribly, as long as she isn't dying. There is argument in the case that a health exception can be found in other provisions of state law, and this is the court's response:

Even if these statutes could be cobbled together to preclude all civil and criminal liability for medical personnel who violate the Act's notice requirements in order to preserve a minor's health, we would not view them as equivalent to the constitutionally required health exception. The basic canons of statutory construction in New Hampshire require us to look first to a statute's plain meaning, and when it is clear and unambiguous, to apply the statute as written. See, e.g., Appeal of Astro Spectacular, Inc., 639 A.2d 249, 250 (N.H. 1996). The Act clearly states that "[n]o abortion shall be performed upon an unemancipated minor . . . until at least 48 hours after written notice" to a parent. RSA 132:25. Three explicit exceptions to this rule are provided: (1) when abortion is necessary to prevent the minor's death; (2) when a parent certifies in writing that he or she has been notified; and (3) when a court grants a judicial bypass. RSA 132:26, I, II. The New Hampshire legislature's intent that abortions not in compliance with the Act's notification provisions be prohibited in all but these three circumstances is clear. See St. Joseph Hosp. of Nashua v. Rizzo, 676 A.2d 98, 100 (N.H. 1996) (espousing expressio unius standard of statutory construction). The earlier-enacted statutory provisions cited by the Attorney General cannot be read to supercede [sic] this intent. See Petition of Dunlap, 604 A.2d 945, 955 (N.H. 1992) ("'When a conflict exists between two statutes, the later statute will control, especially when the later statute deals with a subject in a specific way and the earlier enactment treats the subject in a general fashion.'" (quoting Bd. of Selectmen v. Planning Bd., 383 A.2d 1122, 1124 (N.H. 1978)).

Basically, then, the statute is so clear that there is no need to seek out the state court's interpretation of state law before going on to find it unconstitutional.

The state also argued the judicial bypass to notification could be performed exceedingly quickly. Again, the federal court had to interpret state law:

The Act provides that such proceedings "shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay," provides minors 24-hour, 7-day access to the courts, and provides for expedited appeal. RSA 132:26, II(b)-(c). However, the Act allows courts seven calendar days in which to rule on minors' petitions, and another seven calendar days on appeal. Delays of up to two weeks can therefore occur, during which time a minor's health may be adversely affected. Even when the courts act as expeditiously as possible, those minors who need an immediate abortion to protect their health are at risk. Due to this delay, the Act's bypass provision does not stand in for the constitutionally required health exception. See Thornburgh, 476 U.S. at 768-71 (finding statute facially invalid for failing to provide health exception to delay caused by awaiting presence of second physician).

Here, it's not so much a matter of interpreting state law as needing to rely on a prediction of how state judges will respond to an emergency.

So I don't think it is likely that the Supreme Court would say the federal court ought to have sought out a state court opinion on state law. This really does seem to provide an occasion for a new fight over the necessity for the health exception in abortion regulations.