Abortion Case Could Hinge on a Vote by Alito; A Ruling on a New Hampshire Parental Notification Law Would Come after a Confirmation Vote

The Washington Times (Washington, DC), November 27, 2005 | Go to article overview

Abortion Case Could Hinge on a Vote by Alito; A Ruling on a New Hampshire Parental Notification Law Would Come after a Confirmation Vote


Byline: Guy Taylor, THE WASHINGTON TIMES

The Supreme Court will hear oral arguments this week in its first major abortion case in five years, reviewing a New Hampshire state law that requires parents to be notified if their underage daughter seeks an abortion.

The case, Ayotte v. Planned Parenthood, comes at an unusual time for the court, since the makeup of the justices is expected to change between the time the oral argument is made and a ruling in the case is delivered.

If confirmed, Supreme Court nominee Samuel A. Alito Jr., who favored a similar state abortion law as an appeals court judge, would arrive on the court as opinions were being drafted in Ayotte - a situation legal scholars say could play out in various ways.Court tradition holds that new justices do not participate in decisions on cases argued before the justice was confirmed, said Richard Reuben, a Supreme Court specialist at the University of Missouri School of Law.

He noted, however, that "the court has the privilege of establishing its own rules, so it could permit Alito to participate even if he wasn't there at oral arguments."

Another option, Mr. Reuben said, is that the current justices could hear arguments now, then reschedule the case for next year so a newly confirmed Justice Alito would be able to participate in both the argument and ruling phases.

A key twist is that Judge Alito has been nominated to replace outgoing Justice Sandra Day O'Connor, whose opinions in cases have had a dramatic effect on the debate over how abortion may be regulated at the state level.

The Ayotte case is being watched closely by interest groups on both sides of the issue, since what's at stake is a review of how far individual states can go to pass laws that make it more difficult to get an abortion, particularly when the person seeking it is younger than 18.

New Hampshire passed its parental-notification law in 2003, prompting an almost immediate challenge by several groups, including Planned Parenthood of Northern New England and the Feminist Health Center of Portsmouth, which argued that the law presented an unconstitutional barrier for females seeking to exercise abortion rights as outlined in the landmark 1973 Roe v. …

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