Amicus Curiae Brief — Ayotte v. Planned Parenthood

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No. 04-1144

|_OFFICE OF THE CLERK |

In The

Supreme Court of the Gnited States

Sd

KELLY A. AYOTTE,

ATTORNEY GENERAL OF NEW HAMPSHIRE,

Petitioner,

V.

PLANNED PARENTHOOD OF

NORTHERN NEW ENGLAND, ET AL.,

Respondents.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

o

BRIEF FOR AMICI CURLAE

NEW HAMPSHIRE STATE REP. TERIE NORELLI

AND OVER ONE HUNDRED OTHER STATE

LEGISLATORS SUPPORTING RESPONDENTS

o

RUSSELL F. HILLIARD

KENNETH J. BARNES*

UpTon & HATFIELD, LLP

10 Centre St., P.O. Box 1090

Concord, NH €3302-1090

(603) 224-7791

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO (800) 225-694

OR CALL COLLECT +402) 442-2831

TABLE OF CONTENTS

Re Ee CE ehcrcctreicontntnstricnioceipascencendnnitnininn

SUMMARY OF ARGUMENT ......0000.. 0. .ccccccceceeeeeeeenees

II.

III.

The State Waived The Argument That It Was

Not Required To Include An Emergency

Health Exception In The Statute ...................

This Court Should Affirm The Circuit Court’s

Holding That The Act Is Unconstitutional

Because It Lacks An Emergency Health Ex-

ic rccciteniccnsiviarsnikustinantiiiinintiniiniccinhieme

The Circuit Court Correctly Held That New

Hampshire’s Unconstitutional Statute Must

Be Facially Invalidated ..........................sceseeee

A. Facial Invalidation Has Been the Rem-

edy in Prior Decisions, Both Pre-Casey

and Post-Casey, Where a Statute Re-

stricting Abortion Was Held Unconstitu-

EE ctckcenciiticncetaptnintavigitidintitiiandinbinnmibsdubiies

B. The Courts, Including This Court,

Should Not Put Themselves in the Posi-

tion of Rewriting Statutes, Even If They

Would Do So In Order to “Save” a Stat-

ute’s Constitutionality .......................:0006

1. It Would Be Inappropriate for the

Courts to Intrude on the Province of

a IID winctinstcnansanicsinhescntrsatatniciiens

i

TABLE OF CONTENTS - Continued

Page

2. The Legislature that Passed the Act

Might Well Have Refused to Pass a

Parental Notification Act With What-

ever Amendment This Court Might

Write in an Effort to Render the Act

I iain iicncicaicnicitaiieinintitiinesttintsisieiiianien 12

IV. The Judicial Bypass Procedure Was Not

Intended To Supply The Medical Emergency

NII <n: cuss chtpainnind en se cliaelaondaidaciicadusaiibdaliedabieiiten 16

SAI si iktcadisesctniandincaststwinssiiecibimeansearectiinbitie 19

TABLE OF AUTHORITIES

Page

CASES:

Ahern v. Laconia Country Club, 118 N.H. 623, 392

RETIN eT ee ea aR OC 12

Alabama v. Shelton, 535 U.S. 654 (2002) .............. lsgaaiias 11

Amoskeag Trust Co., et al. v. Trustees of Dartmouth

College, 89 N.H. 471, 200 A. 786 (1938)................0000008 11

Caban v. Mohammed, 441 U:S. 380 (1979)................. 10, 11

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825

EEE ch centenhnistnsnttiitiastharuieendeniainsbibntent tiitithininibdiandaibidaiensul 15

City of Akron v. Akron Ctr. For Reprod. Health, 462

On CO 0 POTD ar ae 8

City of Springfield v. Kibbe, 408 U.S. 257 (1987)............... 4

Colautti v. Franklin, 439 U.S. 379 (1979)...........cccccceseeeeeees 8

Doe v. Bolton, 410 U.S. 179 (1973)......ccccscecereeeeeeeeeneeneees 8

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

a 9

Heath v. Sears, Roebuck & Co., 123 N.H. 512, 464

PS ERR AE Ne Fe OPED a 15

Hortonville Joint School Dist. No. 1 v. Hortonville

Ed. Ass’n, 426 U.S. 482 (1976) .............ccccccccececeseeeeeeceees 11

Opinion of the Justices, 108 N.H. 268, 233 A.2d 832

TTI viicieh encase iadabadeteiasalasdctlteladindinastatlilidiiateicasttiadions 11

Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476

Ra ER REFER ic cate SSE RCS AC ie re Bree 8

Planned Parenthood v. Casey, 505 U.S. 833 (1992)...passim

iv

TABLE OF AUTHORITIES — Continued

Page

Planned Parenthood v. Danforth, 428 U.S. 52

CIID iiciciestnicinisicinsininiinsciviiicbuidiptenlihhcdcnieksuphoitiiid aces hamid 8

Planned Parenthood of Northern New England v.

Heed, 390 F.3d 53 (1st Cir. 2004) .......... eee ce cceeee 5, 6, 17

Planned Parenthood of Northern New England v.

Heed, 296 F. Supp. 2d 59 (D.N.H. 2003) ..............c:cceees 17

Planned Parenthood v. Owens, 287 F.3d 910 (10th

Si: GD ee cscs bein iciiet Satiseetiteie ied hlcctercuiainiciaclate tial 6

Roe v. Wade, 410 U.S. 113 (1973) 00.0... ccccccceteeeseseeeeeeees 2,5

Sabri v. United States, 541 U.S. 600 (2004) ........ ee 8

Sigel v. Boston & Maine R.R., 107 N.H. 8, 216 A.2d

Fe CE sccncinncncininciceitntipitoeiciiieniainebeindiitidaabiiiniiiniadunialdlia 12

State v. Brobst, 151 N.H. 420 (2004)... eceecceeeeeeeeeee 11

State v. Johnson, 134 N.H. 570, 595 A.2d 498 (1991)....... 12

Stenberg v. Carhart, 530 U.S. 914 (2000)................. 2, 5,8

Thornburgh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986).............. 8, 14,17

Williams v. State, 81 N.H. 341, 125 A. 661 (1924)...... 11, 12

Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d

EE a Ga Fr Dicer ictisccntiscnccipinsiincsicilesceiitlaariiaitrictacinliiies 6

STATUTE:

Be BENIN cn ccntssencnscnsnttntiniedatincuiinindnlegeeiisaiaitanaiabaaiil passim

1

INTEREST OF AMICI

Amici curiae are all legislators in the State of New

Hampshire.’ Some are State Senators and some are **ate

Representatives. They submit this brief in support of

_ Respondents, seeking to affirm the judgment of the United

States Court of Appeals for the First Circuit.’

During the debate on the New Hampshire Parental

Notification Prior to Abortion Act (“the Act” or “PNA”),

many of the amici advocated against passage of the bill

that became the Act. They stressed the unconstitutionality

of the bill and the importance of a medical emergency

exception in order to protect the health of young women

who might need an abortion. Amici were distressed when

several supporters and sponsors of the bill expressed their

desire to pass a bill with no exception to protect teens’

health in medical emergencies. Despite the concerns,

raised by amici and others, about the need to protect

young women’s health, the bill’s supporters made clear

that they wanted to test whether the courts — especially

this Court — would allow such a statute to pass constitu-

tional muster. The bill’s supporters insisted on a bill with

no exceptions except where the woman would die before

the 48-hour waiting period expired.

* Acomplete list of all 153 amici is attached hereto in the Appendix

to this Brief.

* Amici submit this brief in support of Respondents. Counsel for all

parties consented to amici’s filing this brief, and copies of letters so

indicating are being filed with this brief. This brief was authored by

amici and their counsel; no part of it was authored by any other party.

Nor has any party contributed financially to its production.

2

Amici wish to share their legislative perspective with

the Court.’ First, based on amici’s knowledge of the New

Hampshire Legislature, amici believe that a majority of

the Legislature might well have preferred to have no bill

at all rather than a bill containing an emergency health

exception.

In addition, amici’s legislative perspective includes a

desire to protect the legislative process from possible

judicial encroachment. If the Act as it is written is uncon-

stitutional, as we think it is, then amici would stress that

it should be the legislators, not the courts, who decide

whether a new statute should be written and how to write

its provisions in such a way as to make it both constitu-

tional and politically acceptable to a majority of the State’s

elected representatives. This legislative perspective is one

that amici uniquely possess; the parties are, of necessity,

viewing this case from a different point of view.

S

SUMMARY OF ARGUMENT

For more than three decades, this Court has consis-

tently held that laws restricting access to abortion are

unconstitutional unless they contain a health exception to

protect women’s health and lives. Roe v. Wade, 410 U.S.

113, 164-65 (1973); Planned Parenthood v. Casey, 505 U.S.

833, 846, 879-80 (1992); Stenberg v. Carhart, 530 U.S. 914,

931 (2000). In direct contravention of this constitutional

mandate, the New Hampshire Legislature chose to impose

* The vast majority of amici participated first-hand in the legisla-

tive process that resulted in the Act at issue in this case. Others are

currently serving in the Legislature.

3

a major restriction — imposing a 48-hour delay after

parental notification — without including an exception

where a prompt abortion is necessary to protect a young

woman’s health. For this reason alone, the Act is unconsti-

tutional.

Because the Act is unconstitutional, and because it

would be inappropriate for this Court to rewrite the Act in

order to “save” it, this Court should facially invalidate it.

In prior decisions, both pre-Casey and post-Casey, this

Court has facially invalidated statutes that the Court had

held to be unconstitutional because they placed an undue

burden on a woman’s right to obtain an abortion.

The Court should certainly not try to “save” the

statute by judicially crafting new statutory provisions that

the New Hampshire Legislature did not see fit to include

in the statute that it voted on. Writing and rewriting

statutory language is emphatically the province of the

legislative branch of government, in this case the state

legislative branch; it is not the province of the judicial

branch, especially the federal judiciary.

Finally, the Act’s judicial bypass provision was not

intended to supply the medical emergency exception. The

bypass provision, by its terms, applies only to a minor who

“elects” not to notify her parents, and says nothing about

the teen who wants to notify her parents but for one of

many reasons is unable to. Nor does it address the situa-

tion in which a minor needs an abortion in less than 48

hours to avoid serious health repercussions and has

notified her parents, but the parents are unable promptly

to “certify in writing that they have been notified.”

e

4

ARGUMENT

I. THE STATE WAIVED THE ARGUMENT THAT

IT WAS NOT REQUIRED TO INCLUDE AN

EMERGENCY HEALTH EXCEPTION IN THE

STATUTE.

The State did not argue, in the district or circuit

courts, that it was not required by the Constitution to

include an emergency health exception in the Act. Instead,

the State contended, in those courts, that it met that

requirement by means of other unrelated statutory provi-

sions that had already been on the books. Having failed to

preserve the argument the State is now raising — that the

Act would be constitutional even with no emergency

health exception — the State cannot now be heard in this

Court to raise an argument it waived in the district and

circuit courts.

This Court “ordinarily will not decide questions not

raised or litigated in the lower courts.” See City of Spring-

field v. Kibbe, 480 U.S. 257, 259 (1987) (finding “consider-

able prudential objection” to doing so, even though there is

no jurisdictional bar to reaching such questions). In Kibbe,

the petitioner had failed to raise its objection in the trial

court. Here, the State of New Hampshire failed to raise its

present argument in either the district court or the court of

appeals. This argument should not be considered by this

Court where the State failed first to give the “lower courts”

an opportunity to address the parties’ contentions. See

Kibbe, 480 U.S. at 259.

5

Il. THIS COURT SHOULD AFFIRM THE CIR-

CUIT COURT’S HOLDING THAT THE ACT IS

UNCONSTITUTIONAL BECAUSE IT LACKS

AN EMERGENCY HEALTH EXCEPTION.

As the Respondents’ brief more fully explains, the

circuit court correctly held the Act unconstitutional be-

cause it does not include an exception for emergency

situations where the young woman’s health will be endan-

gered, if she cannot get a prompt abortion. Planned

Parenthood of Northern New England v. Heed, 390 F.3d

53, 62 (1st Cir. 2004). The primacy of women’s health has

been a part of this Court’s jurisprudence for more than

three decades. The Court has required an emergency

health exception to statutory abortion restrictions, includ-

ing statutes imposing a waiting period or other delay

before a woman may obtain an abortion (as well as out-

right prohibitions on a woman’s right to an abortion).

For 32 years — from Roe to Casey to Stenberg — the

sine qua non of validity for abortion regulations has been

held to be an exception to protect the health of the woman.

In Roe itself, the Court held that even post-viability bans

must contain a health exception. Roe, 410 U.S. at 164-65.

Indeed, this Court has explicitly held that the type of

abortion restriction contained in the New Hampshire Act —

a mandatory delay (48 hours after parental notification)

before an abortion may be performed — must contain an

exception for circumstances where a woman needs a

prompt abortion to protect her health. Casey, 505 U.S. at

879-80, 886.

This Court held, in Casey, that Pennsylvania’s paren-

tal involvement and waiting period restrictions would

have been unconstitutional, if the statute Aad not con-

tained an exception permitting an immediate abortion if

6

necessary to prevent significant health risks; the Court

reasoned that “the essential holding of Roe forbids a State

from interfering with a woman’s choice to undergo an

abortion procedure if continuing her pregnancy would

constitute a threat to her health.” Id. at 880 (emphasis

added). However, the Court found that, unlike the New

Hampshire Act, the Pennsylvania law did include an

exception for medical emergencies that was not limited to

life-threatening situations. Jd. at 879 (recognizing statu-

tory exception for medical emergency “for which a delay

will create serious risk of substantial and irreversible

impairment of a major bodily function”). Critical to this

Court’s conclusion was the fact that the court of appeals

had construed Pennsylvania’s medical emerrency excep-

tion as “assur[ing]) that compliance with [tae] abortion

regulations would not in any way pose a significant threat

to the life or health of a woman.” Jd. at 879-80 (emphasis

added). Because of this medical emergency exception, the

Court found that the statute’s waiting period did not place

a substantial obstacle in the path of a woman seeking an

abortion. Jd. at 886. See also Planned Parenthood uv.

Owens, 287 F.3d 910, 927 (10th Cir. 2002) (holding a

Colorado parental notification law “unconstitutional

because it fail[ed) to provide a health exception as re-

quired by the Constitution of the United States”); Women’s

Med. Prof’! Corp. v. Voinovich, 130 F.3d 187, 203 (6th Cir.

1997) (“any abortion regulation that might delay an

abortion must contain a valid medical emergency excep-

tion”). —

Applying these well-established constitutional stan-

dards, the circuit court properly concluded that the New

Hampshire Act is fatally flawed. Heed, 390 F.3d at 60-62.

Unlike the statute in Casey, the New Hampshire Act

7

contains no exception that would protect a young woman’s

health in situations where she is not facing imminent

death but delaying her abortion would put her health at

serious risk.‘ For this reason alone, the circuit court’s

decision must be affirmed.

In addition, the New Hampshire Act imposes a forty-

eight-hour waiting period after parents have been notified.

As this Court made clear in Casey, such a delay is uncon-

stitutional, in the absence of an emergency health excep-

tion. Casey, 505 U.S. at 880, 886. If a waiting period of

twenty-four hours is unconstitutional without an emer-

gency health exception, id., then the New Hampshire Act’s

forty-eight-hour waiting period surely requires an emer-

gency health exception.

The requirement of an emergency health exception

will be more fully discussed in the brief of the respon-

dents, and has been explained in the First Circuit deci-

sion. Therefore, we will not elaborate on it here. Instead,

we turn to the question of remedy: given that the New

Hampshire statute fails to include a medical emergency

* As the undisputed evidence makes clear, the lack of such an

exception will cause minors to suffer serious and unnecessary injuries

to their health. For example, some teenagers with preeclampsia - a

condition that occurs most frequently in young women pregnant for the

first time — risk substantial harm to their kidneys, liver, and vision if

an abortion must be delayed to comply with the Act’s requirements.

Goldner Affid. 44 8-9, Joint App. 23-24. Similarly, delaying an abortion

for a minor with premature rupture of membranes may cause signifi-

cant and permanent harm to the young woman's health, including

infertility, a lifetime of chronic pelvic pain, and an abdominal abscess.

Id. 47 10-11, Joiat App. 24-25; see also id. [4 7-15, Joint App. 23-26

(describing other conditions where a prompt abortion is needed to

protect a woman’s health from significant and permanent damage).

8

exception, and is therefore unconstitutional, what should

the courts do about it?

Ill. THE CIRCUIT COURT CORRECTLY HELD

THAT NEW HAMPSHIRE’S UNCONSTITU-

TIONAL STATUTE MUST BE FACIALLY IN-

VALIDATED.

A. Facial Invalidation Has Been the Remedy

in Prior Decisions, Both Pre-Casey and

Post-Casey, Where a Statute Restricting

Abortion Was Held Unconstitutional.

In a number of prior cases, both pre-Casey and post-

Casey, this Court has facially invalidated statutes restrict-

ing access to an abortion, as the remedy for the restric-

tion’s unconstitutionality. See, e.g., Stenberg, 530 U.S. at

929-30; Thornburgh v. American Coll. of Obstetricians and

Gynecologists, 476 U.S. 747, 769-71 (1986), overruled in

part on other grounds, Planned Parenthood v. Casey, 505

U.S. 833 (1992).°

Just last year, this Court “recognized the validity of

facial attacks” in settings involving, inter alia, abortion

(but rejecting facial attacks “outside these limited set-

tings”). Sabri v. United States, 541 U.S. 600, __, 124 S.Ct.

1941, 1948-49 (2004).

* See also Casey, 505 U.S. at 895; Planned Parenthood Ass'n v.

Ashcroft, 462 U.S. 476, 482 (1983); City of Akron v. Akron Ctr. for

Reprod. Health, 462 U.S. 416, 426 (1983) (Akron J), overruled in part on

other grounds, Casey, 505 U.S. 833 (1992); Colautti v. Franklin, 439

U.S. 379, 401 (1979); Planned Parenthood v. Danforth, 428 U.S. 52, 69,

74-78, 82-84 (1976); Doe v. Bolton, 410 U.S. 179, 201-02 (1973) (all

facially invalidating abortion restrictions).

9

B. The Courts, Including This Court, Should

Not Put Themselves in the Position of Re-

writing Statutes, Even If They Would Do So

In Order to “Save” a Statute’s Constitution-

ality.

1. It Would Be Inappropriate for the

Courts to Intrude on the Province of the

Legislature

It is fundamentally the province of the legislative

branch, not the judiciary, to write all of the provisions of

any given statute. As this Court stated in a different

context:

Often we have urged the Congress to speak with

greater clarity, and in this statute it has done so.

If the effects of the law are to be alleviated, that

is within the province of the Legislature. It is

Congress that has the authority to change the

statute, not the courts.

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 483

(1992).

What this Court said about Congress in Cowart

is even more true of state legislatures such as New

Hampshire’s here.’ “[I]t is not the function of a court ‘to

* To say, as we do here, that this Court should refrain from any

inclination to rewrite the New Hampshire parental notification act in

order to “save” it, does not mean that the Court never has any role in

interpreting statutes after their adoption by the legislative branch.

However, it is one thing for a court to interpret an ambiguous provision

by applying the principles of statutory construction. It is quite another

thing, after finding a statute unconstitutional — because it includes no

provision to protect a woman from serious health repercussions — for a

court to draft its own language to insert in the statute in order to cure

the constitutional defect.

10

hypothesize independently on the desirability or feasibility

of any possible alternative[s]’ to the statutory scheme

formulated by [the State].” Caban v. Mohammed, 441 US.

380, 393 n.13, 394 (1979) (striking down a state statute as

unconstitutional based on “‘overbroad generalizations’ in

ger ‘er-based classifications”).

Amici have, among them, many years of experience as

legislators. They know all too well the truth of the old saw

that “enacting legislation is like making sausage, and

watching it happen is not for the squeamish.” The legisla-

tive process is a constant give and take. Alliances are

formed and then dissolved, new ones formed and then

rearranged. Draft bills are amended — often many times —

and, once approved by one legislative house, bills are

frequently approved by the second house in a vastly

different format. Committees of conference negotiate

between the House and Senate versions, and sometimes

come up with a bill that is altogether different from either

of them. The conference committees might even negotiate

approval of the Senate version of Bill A in exchange for the

House version of Bill 8, on an entirely different subject. In

the end, many compromises and trade-offs are made

before the final bill becomes law. It is impossible to pre-

dict, at the outset, how all the uncertainties will play out.

This “sausage factory” is not pretty. Yet it is an aspect

of our democratic, three-branched government that is best

left to the legislature. Courts acting in the abstract cannot

and should not substitute their analysis of how a constitu-

tional statute might have been crafted if the Legislature

had collectively worked through their different interests

and tried to produce such a result. This is why courts have

refused to tread upon “the province of the Legislature” by

11

rewriting an unconstitutional law in order to “save” it. See

Caban, 441 US. at 393 n.13.

This is as true in New Hampshire as it is in the

federal courts.’ Just last year, the New Hampshire Su-

preme Court refused to “supply a limiting construction” to

a statute held unconstitutional; the court could not envi-

sion a construction that “would allow |the court] to limit

the scope of the statute without invading the province of

the legislature.” State v. Brobst, 151 N.H. 420, 8&7 A.2d

1253 (2004) (emphasis added). Guarding against such an

invasion has a long history in New Hampshire. In Wil-

liams v. State, 81 N.H. 341, 353, 125 A. 661, 667 (1924),

overruled in part on other grounds, Amoskeag Trust Co., et

al. v. Trustees of Dartmouth College, 89 N.H. 471, 200 A.

786 (1938), the Court rejected a graduated tax as uncon-

stitutional, but then refused to judicially impose a flat tax

at any particular rate because to do so “would be an act of

legislation not of construction. The legislature intended to

substitute a new system as a whole, and as all the provi-

sions cannot be carried into effect and as it is impossible to

tell what part the legislature would have adopted inde-

pendently, the whole section is void.” (Emphasis added.)

See also Opinion of the Justices, 108 N.H. 268, 275, 233

A.2d 832, 836 (1967) (voiding “the whole amendment,”

where it was “impossible for [the Court] to determine

whether the Legislature would have enacted any part of

the amendment if the whole or a major part of it could not

" This Court is “bound to accept the interpretation of [New

He apshire’s}] law by the highest court of the State.” Alabama uv.

Shelton, 535 U.S. 654, 674 (2002) (quoting Hortonville Joint School

Dist. No. 1 v. Hortonville Ed. Ass'n, 426 U.S. 482, 488 (1976)).

12

[because of constitutional prohibitions] be carried into

effect”).

“Courts have no right to redraft legislation to make it

conform to an intention not fairly expressed therein.”

Ahern v. Laconia Country Club, 118 N.H. 623, 625, 392

A.2d 587, 588 (1978); State v. Johnson, 134 N.H. 570, 578,

595 A.2d 498, 503-04 (1991) (same). It is not for a review-

ing court “to add terms to the statute that the legislature

did not see fit to include.” Ahern, 118 N.H. at 625, 393 A.2d

at 588. The question “is not what the legislators ought to

have done when they originally passed [a particular

statute], or what they would have done had they thought

of it.” Sigel v. Boston & Maine R.R., 107 N.H. 8, 23, 216

A.2d 794, 805 (1966).

In the instant case, there are many different ways

that any particular provision - including a medical emer-

gency exception — could be written. It is “impossible to tell”

which of those possibilities the legislature would have

chosen as its fallback position if it knew that the statute

as enacted would be held unconstitutional. It is not appro-

priate for this Court to choose among those various possi-

bilities and do the legislature’s job for it. See Williams, 81

N.H. at 353, 125 A. at 667.

2. The Legislature that Passed the Act

Might Well Have Refused to Pass a Pa-

rental Notification Act with Whatever

Amendment this Court Might Write in an

Effort to Render the Act Constitutional.

The courts’ intrusion on the province of the Legisla-

ture would be especially inappropriate with respect to the

particular legislative choice made by the New Hampshire

13

Legislature when it enacted the parental notification law.

If the Legislature were faced with the choice of facial

invalidation or reading in a medical emergency exception,

there is significant doubt as to which choice the Legisla-

ture would have made. Indeed, there is reason to believe

that the Legislature would have voted for no law at all

rather than for one with a medical emergency exception.

A number of legislators — including the Act’s key

sponsors — made clear that they would have preferred to

have no law rather than a law that contains a medical

emergency exception in it. They strongly opposed inclusion

of a medical emergency exception on the ground that they

wanted to test the law, and in particular wanted this

Court to adjudicate the issue of whether a medical emer-

gency exception would be required in a parental notifica-

tion statute.*

At the time they enacted the parental notification act,

the New Hampshire Legislators were well aware of the

thirty years of Supreme Court law on the subject of abor-

tion. And the Legislators were well aware of — indeed some

of the Act’s sponsors were contemptuous of — this Court’s

decisions protecting maternal health. For example, Rep.

Phyllis Woods, one of the lead sponsors of the Bill, stated

* The amicus briefs supporting the state in this case have ex-

pressed the same view as many of the sponsors of the New Hampshire

statute: they do not think a medical emergency exception should be a

part of an abortion regulation law; they believe such exceptions are so

broad as to reduce the effectiveness of the abortion regulation; and they

desire to restrict abortions to the rare cases where the w-man’s very life

is endangered. The amicus briefs thus support the argument that the

New Hampshire legislators who voted to pass the parental notification

act made a purposeful decision to enact a law that did not contain a

medical emergency exception.

14

clearly that lawmakers intentionally left out a health

exception. See New Hampshire Public Radio News, “Pa-

rental Notification Law Faces Challenge,” Nov. 17, 2003,

available at http:/Awww.nhpr.org/node/5396/ (copy attached

infra at App. 4). See also statement by Rep. Fran Wendel-

boe, quoted in the Portsmouth Herald, December 31, 2003,

available online at http://www.seacoastonline.com/2003

news/12312003/news/68017.htm (copy attached infra at

App. 8) (“We didn’t mistakenly forget to put in a health

exception. We purposely crafted a bill without an excep-

tion.”).” These sentiments pervaded the public discussion

of New Hampshire’s parental notification act.

The Legislators who supported passage of the Act

knew very well how to draft language that would have

provided an emergency health exception;” yet they chose

not to include such language in the Act. Compare Thorn-

burgh, 476 U.S. at 771 (“It is clear that the Pennsylvania

Legislature knows how to provide a medical-emergency

exception when it chooses to do so.... It specifically

provided a medical-emergency exception with respect to

[several restrictions],” yet did not include one in the

provision at issue. “We necessarily conclude that the

* Many of the present amici participated in the debates on the Act,

and expressed dismay at their colleagues’ expression of such contempt

for the rule of law and such insensitivity to the very real possibility that

the absence of an emergency health exception could create serious

health consequences for vulnerable young women.

’° Indeed, in several prior years, bills had been introduced in the

Legislature to require parental notification before minors could obtain

an abortion, and each of those prior bills contained an exception where

necessitated by a health emergency. See, e.g., S.B. 442, 1998 Session

(N.H. 1998); H.B. 1278, 2002 Session (N.H. 2002); H.B. 1380, 2002

Session (N.H. 2002).

15

legislature’s failure to provide a medical-emergency

exception in [the statute] was intentional.”).

The Act passed the New Hampshire Legislature by a -

narrow margin in each house. The vote was so close that a

change of one vote in the Senate and a handful of votes in

the House would have made the difference between the

present law and no law at all. In the face of doubt, the

courts should steer a wide berth around any action that

could be construed as doing the legislature’s job for it,

especially where a majority of the legislature might not

support the statute as the court might rewrite it in order

to render it constitutional. The federal courts certainly

should not be in the business of writing a new state law

and assuming that the legislature would have passed it in

the form that the courts have rewritten it.

When a court is “not sure whether the legislature

would have enacted” one provision of a statute “in the

absence of all of the unconstitutional provisions,” the court

“must leave that question to the legislature,” and void the

entire statute. Heath v. Sears, Roebuck & Co., 123 N.H.

512, 531, 464 A.2d 288, 299 (1983); Carson v. Maurer, 120

N.H. 925, 946, 424 A.2d 825, 839 (1980) (same). Similarly,

here, the Court cannot be “sure whether the legislature

would have enacted” the Act if its language were rewritten

by the Court in a way that would render it constitutional;

therefore the Court “must leave that question to the

legislature,” and void the entire statute. Heath, 123 N.H.

at 531, 464 A.2d at 299.

Accordingly, amici urge the Court to affirm the First

Circuit’s judgment facially invalidating the Act. If the

legislature, at some later date, chooses to enact a new

statute with different provisions, then the courts will have

16

an opportunity to decide whether that new statute is

constitutional, according to the law as this Court has

defined it. New Hampshire’s Parental Notification Prior to

Abortion Act should be facially invalidated.

IV. THE JUDICIAL BYPASS PROCEDURE WAS

NOT INTENDED TO SUPPLY THE MEDICAL

EMERGENCY EXCEPTION.

The Petitioner argues in her brief, at 20-23, that the

judicial bypass procedure set forth in the Act “adequately

protects the life and health of the mother.... ” This

argument was rejected by the district court:

The Attorney General also argues that the judi-

cial bypass provision of the Act would allow

an abortion, without notification, to protect the

health of a pregnant minor. Even with the provi-

sions for expediting such proceedings, the judi-

cial bypass process necessarily delays an

abortion in a health emergency. Dr. Goldner

states in his declaration, which is not opposed by

the Attorney General, that certain medical condi-

tions during pregnancy require immediate abor-

tion to protect the health of the mother and that

any delay would jeopardize her health. The At-

torney General has not explained how the judi-

cial bypass provision would address the need for

an immediate abortion to protect the health of

the mother, and the provision on its face is insuf-

ficient to meet such a need. Therefore, the judi-

cial bypass process does not save the Act from

the lack of a constitutionally required health ex-

ception.

17

Planned Parenthood of Northern New England v. Heed,

296 F. Supp. 2d 59, 66 (D.N.H. 2003). Petitioner’s argu-

ment was also rejected by the court of appeals:

Finally, the Attorney General argues that the

Act’s judicial bypass mechanism allows prompt

authorization of a health-related abortion with-

out notice. The Act provides that such proceed-

ings “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 calen-

dar 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 ad-

versely affected. Even when the courts act as ex-

peditiously as possible, those minors who need

an immediate abortion to protect their health are

at risk. Due to this delay, the Act’s bypass provi-

sion does not stand in for the constitutionally re-

quired health exception. See Thornburgh, 476

U.S. at 768-71, 106 S.Ct. 2169 (finding statute

facially invalid for failing to provide health ex-

ception to delay caused by awaiting presence of

second physician).

Heed, 390 F.3d at 62. The Petitioner’s argument in this

regard is no more persuasive before this Court.

The judicial bypass procedure is set forth in RSA

132:26, II. It burdens a pregnant minor who does not wish

to notify her parents with the obligation to seek judicial

authorization for an abortion. While requiring decisions on

such requests to be reached “promptly and without delay,”

the statute provides no specific timeframe for medical

18

emergencies, which might require prompt medical action

in order to avoid significant and permanent harm to the

pregnant minor. See supra at 7, n.4. Instead, the judicial

bypass provision only establishes a deadline for decision of

seven (7) days from the filing of the petition (II(b)), and

another seven (7) day period from the docketing of an

appeal from the denial of a petition (II(c)). While the state

judiciary will certainly attempt to act “promptly,” statutory

compliance means that, even if the pregnant minor acts

immediately throughout, fourteen (14) days could pass in the

judicial proceeding. Such a structure could not have been

intended to supply a medical emergency exception.

In addition, although the Act purports to provide

access to the courts “24 hours a day, 7 days a week,” such

access outside of normal hours during which trial courts

are open is difficult at best, and often impossible. It may

well be that law enforcement and sophisticated parties

with significant resources may have the ability to access

the justice system “after hours,” but this would not be the

reality for an individual petitioner inexperienced in legal

matters and of limited means. Moreover, the Act provides

no funding for the expedited procedure and appointed

counsel right it creates, and there is nothing in the record

to suggest that the New Hampshire state court system is

able to respond to this additional responsibility as dictated

by the Act. The New Hampshire legislature was assum-

edly aware of these issues, which further evidences the

fact that the judicial bypass procedure was not intended to

substitute for a medical emergency exception.

Finally, the language of the statute itself demon-

strates its inapplicability to medical emergencies. As

noted, the procedure contemplates the “pregnant minor

elect(ing) not to allow notification of her parents,” RSA

132:26, I, a concept bearing no relation to the existence of

19

a medical emergency for which the minor is willing to

notify her parents, but they are unwilling, unable, or

unavailable to provide the written certification of notice to

allow the abortion to proceed immediately. See RSA 132:26,

I(b). Likewise, the statute’s language about “best interests”

— requiring that a judge “determine whether the perform-

ance of an abortion upon [a pregnant minor] without

notification of her parent . . . would be in her best interests”

— again bears no relation to the case in which the minor

does notify her parents but the parents are unable, unwill-

ing, or unavailable to immediately provide the necessary

certification. RSA 132:26, II (emphasis added). Again, it is

clear that the judicial bypass procedure is intended to apply

only to the circumstance of the pregnant minor electing not

to notify her parents. It is equally clear that the bypas*

procedure was not intended to deal with medical emergen-

cies, and that it fails to provide the constitutionally re-

quired mechanism for dealing with such emergencies.

>

CONCLUSION

For the foregoing reasons, amici respectfully urge this

Court to affirm the judgment of the First Circuit and to

facially invalidate New Hampshire’s Parental Notification

Prior to Abortion Act.

Respectfully submitted,

RUSSELL F. HILLIARD

KENNETH J. BARNES

Upton & HATFIELD, LLP

10 Centre Street, P.O. Box 1090

Concord, NH 03302-1090

(603) 224-7791

Attorneys for Amici Curiae

LIST OF AMICI CURIAE

Dennis Abbott Cynthia Dokmo

Peter Allen Richard Drisko

Susan Almy Patricia Dunlap

Gene Andersen Timothy Dunn

Michael] Asselin Daniel Eaton

Jane Beaulieu Stephanie Eaton

Bernard Benn Fran Egbers

Peter Bergin Peter Espiefs

David Bickford David Essex

Elizabeth Blanchard Iris Estabrook

MaryAnn Blanchard Brenda Ferland

Ruth Bleyler Eileen Flockhart

Candace Bouchard Robert Foose

Jennifer Brown Joe Foster

Julie Brown Linda Foster

Larry Brown Sheila Francoeur

Donald Brueggemann Peter Franklin

Peter Burling Barbara French

Mark Carter Martha Fuller Clark

Kim Casey Mary Gile

Bill Chase Ruth Ginsburg

Claudia Chase Earle Goodwin

Jacalyn Cilley David Gottesman

Claire Clarke Kenneth Gould

Jane Clemons John Graham

John Cloutier Anne Grassie

Mary Cooney Vincent Greco

David Cote Elizabeth Hager

Peter Cote Betty Hall

James Craig Christine Hamm

Irene Creteau Lee Hammond

Lou D’Allesandro Laurie Harding

Caitlin Daniuk Suzanne Harvey

John DeJoie Maggie Hassan

Betsi DeVries Randolph Holden

Howard Dickinson Charlotte Houde-Quimby

App. 1

Karen Hutchinson

Anne-Marie Irwin

Arthur Jillette

Nancy Johnson

Robert Johnson

Naida Kaen

Sandra Keans

David Kidder

William Knowles

Angeline Kopka

Neal Kurk

Sylvia Larsen

Bette Lasky

Priscilla Lockwood

Jim MacKay

Roy Maxfield

Martha McLeod

Patricia McMahon

Edgar Mears

D. Scott Merrick

Irene Messier

Joseph Miller

Alida Millham

Bonnie Mitchell

Marcia Moody

Gail Morrison

Lori Movsesian

Catherine Mulholland

Sharon Nordgren

Terie Norelli

Tim O’Connell

J. Lisbeth Olimpio

Jessie Osborne

Derek Owen

Laura Pantelakos

Christopher Pappas

Betsey Patten

Don Philbrick

App. 2

James Phinizy

James Pilliod

Jacqueline Pitts

Frances Potter

James Powers

John Pratt

Stephen Prichard

Tara Reardon

Barbara Richardson

Car] Robertson

Eric Rochette

Michael Rollo

Lucinda Rosenwald

Emma Rous

Deanna Rush

Jim Ryan

Peter Schmidt

Christopher Serlin

Gilman Shattuck

Barbara Shaw

Kimberly Shaw

Steve Shurtleff

David Smith

Marjorie Smith

Clair Snyder

Hilda Sokol

Pete Solomon

Judith Spang

James Splaine

Joe Stone

Francis Sullivan

Katherine Taylor

Kathleen Taylor

Robert Theberge

Anna Tilton

Joy Tilton

Frank Tupper

Janet Wall

Mary Jane Wallner

Mary Beth Walz

Chuck Weed

Bob Williams

Charles Yeaton

App. 3

App. 4

NH Public Radio

PARENTAL NOTIFICATION LAW FACES CHALLENGE

Reported by Dan Gorenstein

on Monday, November 17, 2003.

[Picture Omitted In Printing]

Pro-choice advocates are challenging the state’s new law

that requires minors to notify parents before getting an

abortion.

Earlier today/Yesterday they filed a long-expected suit in

federal court.

New Hampshire Public Radio’s Dan Gorenstein reports.

A rough transcript follows:

Abortion rights activists argue New Hampshire’s version

of the law is unconstitutional.

Nearly 30 states require some form of parental involve-

ment in abortion cases.

But the plaintiffs say many of those states remove the

requirement if the young woman’s health is at risk.

Northern New England’s Planned Parenthood Jennifer

Frizzed says this state didn’t include the same language.

Track 3

1:56 the law we challenge today dangerously interferes

with doctors ability to preserve the health of patients, the

law requires a 48 hr. delay, even when the delay would

cause serious and irreparable harm to the young woman,

including, infertility, seizures and kidney or liver damage.

App. 5

The plaintiffs believe without a health exemption, the

courts will strike down the law.

And have asked the court to block it from taking effect on

January Ist.

Republican Representative Phyllis Woods can’t think of a

worse outcome.

Woods, one of the lead sponsors of the legislation, says

lawmakers intentionally left out a health exception.

She says that provision would make for a totally useless

law.

3:08 the health exception is so broadly defined that in

most cases, it is construed to be emotional, or financial

health, by virtue of being pregnant a woman’s health is

compromised ... that are not serious reasons to terminate

a pregnancy.

Citizens for Life executive director Roger Stenson expected

a court challenges.

But he’s optimistic.

He points to a US Supreme Court decision upholding a

Minnesota law that didn’t provide a health exception.

3:50 the proof of the pudding is in the eating. So I would

recommend for anyone’s consumption a reading fo [sic] the

Supreme Court decision on the parental notice statue in

Minnesota .. . that is in black and white, and it can not be

obfuscated by wild execrations from abortion providers.

Plaintiffs, however, cite their own legal precedent.

A recent federal court in Colorado threw out that state’s

law because it failed to protect a woman’s health.

App. 6

Lead attorney for the New Hampshire Plaintiffs, the

ACLU’s Jennifer Dalven.

Track 4

04 the SC has made it very clear for states, that you may

pass a parental notice law for abortion, but you must have

an exception to protect the health and life of young

women, so you must have an exception that allows a

doctor to proceed with an immediate abortion when in

good faith in their medical judgment, they believe a delay

will result in the harm of a young woman.

Harvard Professor of Health Policy and Law Michelle

Mellow says there are two seemingly conflicting decisions

because the court’s considered two separate questions.

The Minnesota case, says the professor, focused on

whether 48 hours was a reasonable time for a young

woman to discuss having an abortion with her parents.

In the Colorado case, she says the analysis focused on

whether a woman’s health would be at risk over a 48 hour

waiting period.

Mellow said, in light of the Supreme Court’s ruling in the

Minnesota case, there are two reasons for plaintiff opti-

mism.

3:03 number one we have a slightly different membership

on the court. And number two the papers in this case

seems to have done a better job of fleshing out the medical

issues associated with a waiting period.

After Coloraco’s parental notification law was nullified,

the legislature passed a similar law that included the

health provision.

App. 7

When asked whether the same would happen in New

Hampshire, a member of state Senate leadership de-

murred.

He said, with the legislature so evenly divided, it could go

either way.

For NHPR News, I’m DG.

App. 8

Seacoastonline [LOGO]

The Source for the Seacoast

10-11-2005

STATE WILL APPEAL RULING ON ABORTION

By Stephen Frothingham

Associated Press

CONCORD - The state plans to appeal a federal judge’s

ruling that struck down New Hampshire’s law requiring

parental notice before a minor could get an abortion, the

state attorney general said Tuesday.

“It’s an important issue that should be reviewed” by the

ist U.S. Circuit Court of Appeals in Boston, Attorney

General Peter Heed said.

The law was to have taken effect today. On Monday, U.S.

District Judge Joseph DiClerico in Concord said it was

unconstitutional because it lacked an exception to protect

the minor’s health.

Gov. Craig Benson, a strong supporter of the law, said he

backed Heed’s decision.

“It gives us an opportunity to push this up to a higher

court, where more judges will rule on this, not just one

single judge,” Benson said.

Conservative lawmakers hed urged Benson to appeal the

decision rather than weaken the law by adding a health

exception.

“We didn’t mistakenly forget to put in a health exception.

We purposely crafted a bill without an exception,” said

Fran Wendelboe, R-New Hampton.

She said a health exception would be an “open door.”

App. 9

“It would pretty much mean you would have no parental

notice at all. Because who makes the decision about what

is a health exception? The abortionist, who is already 100

percent gung-ho to do an abortion,” she said.

Benson said a health exception wouldn’t necessarily

weaken the law. “It depends on how it’s written,” he said.

Heed said the appeals court has never ruled on a parental

notice law.

The law would have required abortion providers to notify

at least one parent at least 48 hours before performing an

abortion on a minor. The parent would not have had to

approve the abortion.

Alternatively, the girl could have asked a judge for permis-

sion, which the judge was required to grant if the girl was

mature enough or the abortion was in her best interest.

DiClerico was unimpressed with the state’s argument that

judges could approve abortions in emergencies.

A federal appeals court in Denver last year ruled that a

similar Colorado law was unconstitutional because it

provided no exceptions for health emergencies.

“The judge clearly has substantial precedent that supports

his decision,” Heed said. “But we believe there is precedent

on our side.”

He said he would file the notice of appeal before the Jan.

27 deadline.

The Legislature may still try to change the law. But the

bill passed by very narrow margins last May and any

proposed changes would likely fracture the unusual

App. 10

alliances that helped it pass. The Legislature had defeated

similar legislation in previous years.

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