High court compromises in teenage-abortion case

WASHINGTON — The Supreme Court, in a rare unanimous decision on abortion, said Wednesday states may require girls younger than 18 to tell a parent at least two days before having an abortion, so long as the law also permits doctors to act quickly in medical emergencies.

The ruling resolves, for now, a New Hampshire case without making a significant change in the law.

Justice Sandra Day O'Connor, in what may be her final opinion, set out a compromise that gives both sides most of what they asked for.

State lawmakers wanted to ensure that a pregnant girl would speak to a parent and then wait at least 48 hours before going ahead with an abortion. "States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy," O'Connor said.

Forty-four states have laws that give parents a role in a minor's abortion decision, she noted. (Washington is among the six that don't.)

However, the New Hampshire Legislature did not provide exemptions for medical emergencies.

"In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health," O'Connor said. "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."

O'Connor described both principles as "established" and not necessarily in conflict.

However, two lower courts voided the entire New Hampshire law because it did not include the exception for medical emergencies. O'Connor called this a "blunt remedy" that went too far. "We agree with New Hampshire that the lower courts need not have invalidated the law wholesale," she said.

The justices sent the dispute back to the lower courts and told the judges to fix the flaw in the law. The state legislature could amend its law to make clear its required waiting period did not apply in cases of medical emergencies, or the judges could issue an order saying the law permitted doctors to act immediately in emergencies.

The New Hampshire case marked the first time in six years the court had taken up an abortion case, and many had predicted the justices would be sharply divided.

But on a closer look, it became clear the dispute could be settled without changing the law.

During the oral argument in late November, Chief Justice John Roberts proposed a middle-ground solution that would save the law by fixing it slightly, and the idea apparently met with the approval of all the justices.

"We do not revisit our abortion precedents today," O'Connor began her opinion, making clear this would not be a major ruling.

Wednesday's ruling probably does not signal the court's coming together on the abortion issue. Indeed, it may not last the week.

In recent weeks, the justices have been meeting in private to consider whether Congress can outlaw an abortion procedure that Republican lawmakers have described as gruesome and inhumane.

Three years ago, a federal ban on a type of abortion in which a fetus is partially delivered before being aborted won the approval of Congress and the signature of President Bush. But the law has been put on hold by two lower courts. Those judges said — as did the Supreme Court in the past — that this surgical procedure is sometimes the safest way of performing an abortion when a woman is four or five months' pregnant.

U.S. Solicitor General Paul Clement, representing the Bush administration, appealed the issue to the Supreme Court in the fall. He said Congress declared that this method of abortion is "never medically indicated," and he urged the court to respect Congress' judgment.

This case raises an issue similar to the New Hampshire case: Must an abortion law include an exception for doctors to act to protect the health of the mother?

When the justices last ruled on this type of abortion, they struck down a Nebraska law and ruled that doctors must be permitted to operate in a way best designed to protect the health of the mother. But the ruling came on a 5-4 vote, with O'Connor in the majority.

On Friday, in what could be O'Connor's last meeting with the justices, they will discuss behind closed doors whether to take up the Bush administration's appeal in the case.

If at least four justices vote to grant the appeal, the case will be heard in April. By then, Justice Samuel Alito will likely have replaced O'Connor.