Parental Notification Case is to be Sent Back to an Appeals Court

A unanimous Supreme Court today declined to rule on a New Hampshire abortion statute and instead instructed a federal appeals court to reconsider the statute’s constitutionality. Moreover, the justices determined that the lower court had erred in invalidating the entire law and instructed it to find a more “modest” remedy.


Mary Schultz
Communications Manager

“To some degree, the narrowness of this decision is surprising because it is the first abortion case the court has taken up in five years,” says David Masci, a senior fellow at the Pew Forum on Religion & Public Life. “It also represents the last opportunity for retiring Justice Sandra Day O’Connor to put her stamp on abortion jurisprudence,” he adds, noting that O’Connor has been an influential voice and sometimes a key vote in past abortion decisions.

The case at hand, Ayotte v. Planned Parenthood of Northern New England, involves a challenge to a law requiring pregnant minors to notify a parent or guardian before obtaining an abortion. While the statute waives the requirement in cases where the minor’s life is in danger, it offers no such waiver in cases in which the woman’s health is at risk. In the past, the high court has struck down statutes that did not contain what is commonly known as a “health exception.” Indeed, in the last major abortion case decided by the court, Stenberg v. Carhart, a five-justice majority invalidated Nebraska’s so-called “partial birth abortion” law because it did not contain a health waiver.

This time, though, the justices decided to forgo a constitutional analysis of the challenged law. “We do not revisit our abortion precedents today, but rather address a question of remedy,” O’Connor wrote. The remedy that had been imposed by the lower court -striking down the entire law – was, the Supreme Court ruled, inappropriate because “only a few applications of New Hampshire’s parental notification statute would present a constitutional problem.” In other words, situations where the health exception would be at issue occur rarely and so invalidating the entire statute seems excessive. Therefore, O’Connor concluded, the appeals court should revisit the case and, if it still deems the lack of a health exception unconstitutional, look for a more “modest remedy.”

The Ayotte case was closely watched by advocates on both sides of the abortion debate because it had the potential to significantly alter the legal playing field. If the court had upheld the New Hampshire statute, other states would probably have followed suit and crafted parental notification and other abortion laws without a health exception. In addition, a case concerning a federal law that bans partial birth abortions but contains no health exception has been appealed to the Supreme Court.

The ruling comes as poll results show that a majority of Americans see abortion as the most important issue before the Supreme Court. According to a survey released by the Pew Research Center for the People & the Press in November 2005, 62 percent of Americans say future Supreme Court decisions on abortion are “very important” to them. By comparison, only 36 percent see court decisions on issues involving homosexuality, such as gay marriage, as “very important.” A summary of the poll findings is available at

In November 2005, the Forum published an in-depth backgrounder on Ayotte, which provides legal and historical analysis of the issues in the case. It can be found at An addendum to the backgrounder analyzing the court’s decision and its possible impact on future cases will soon be available on the Forum’s Web site,

Last year, the Forum hosted a discussion on the issues in the Ayotte case, featuring Nancy Northup, president of the Center for Reproductive Rights, and William Saunders, a senior fellow at the Family Research Council. The full transcript of the discussion is available at: