# Amicus Curiae Brief — Ayotte v. Planned Parenthood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0074%3A35 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2006 - **Citation:** 546 U.S. 320 ## Text ( , 4, /\ 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 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. ho aay ‘ a - 5 » Nae ae : 7 _* Y > iE ‘Poe f= Ed: 4 Ses Penal ee 4 Sire. a A ard : v- in. ee 5 eee he Fao 3 aS Se ee Ce ga 2; at me, Poe ae fee (en2 ek Be AS - on ee ee 11 ee tm le = cee ye toe srt i Se me 3 ie oo 7 io oe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0074%3A35. Public record. Not legal advice.