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Section 4: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School College of William & Mary Law School William & Mary Law School Scholarship Repository Supreme Court Preview Conferences, Events, and Lectures 2005 Section 4: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School Repository Citation Institute of Bill of Rights Law at the William & Mary Law School, "Section 4: Civil Rights" (2005). Supreme Court Preview. 175. https://scholarship.law.wm.edu/preview/175 Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview IV. CIVIL RIGHTS In This Section New Case: 04-114 Ayotte v. Planned Parenthood Synopsis and Question Presented p. 126 "Court to Tackle Abortion Again After Five Years" Linda Greenhouse p. 134 "Parental Notification Supporters Delighted" Tom Fahey p. 136 "Judge Puts Brakes on Abortion Law" Garry Rayno p. 138 "Kids, Sex and the Law" Shawne K. Wickham p. 140 "Parental Notification Sent to Benson" Garry Rayno p. 145 "Parental Consent or Notification for Abortion" L. Jeanne Kaufmann p. 147 New Case: 04-473 Garcetti v Ceballos Synopsis and Question Presented p. 148 "Court Will Decide Whistle-Blower's Rights" David G. Savage p. 161 "Freedom to Speak in the Line of Duty" Gary Young p. 163 "Soft on Crime Fighters" Jim Crogan p. 165 New Case: 04-1084 Gonzales v. 0 Centro Espirita Synopsis and Question Presented p. 169 "Supreme Court to Decide Whether Church Can Import Drug" Charles Lane p. 184 124 "Supreme Court to Hear Case of Dispute Over Religious Group's Use of Banned Drug" Linda Greenhouse p. 185 "The RFRA Hoasca Tea Case" Marty Lederman p. 187 "Court Affirms Church Tea OK" Scott Sandlin p. 189 "Santa Fe Church Gets Permit for Tea" Scott Sandlin p. 191 "Inmate Gets Second Chance for Religious Bias Suit" James G. Sotos p. 193 "Court: Congress Strikes Right Religious-Protection Balance" Tony Mauro p. 196 New Case: 04-0698 Schaffer v. Weast Synopsis and Question Presented p. 198 "High Court to Hear Maryland Special Ed Case" Tim Craig and Miranda Spivack p. 207 "High Court to Decide Who Must Prove Case in Special Ed Dispute" Caroline Hendrie p. 209 "4th Circuit Puts Burden on Parents Under Individuals with Disabilities Education Act" Alisa Bralove p. 212 "Schaffer v. Weast" Nushin Huq p. 214 "Let's Talk: Individuals with Disabilities Education Act" Sue Ann Goldman p. 217 New Case: 04-52 Rice v. Collins Synopsis and Question Presented p. 220 125 Ayotte v. Planned Parenthood (04-1144) Ruling Below: (PlannedParenthood v. Heed, 390 F.3d 53 (1st Cir. N.H., 2004), cert granted 73 USLW 3531, 73 USLW 3681, 73 USLW 3684 (2005)). In 2003, New Hampshire enacted a law requiring parental notification at least 48 hours before an unemancipated minor could receive an abortion. Planned Parenthood, an abortion provider, sued the state attorney general (currently Kelly Ayotte), alleging the statute was an unconstitutional restriction on the right to have an abortion. The Court of Appeals for the First Circuit affirmed a New Hampshire federal district judge's ruling that under the Supreme Court's decisions in Planned Parenthood v. Casey and Stenberg v. Carhart,the Act was unconstitutional. The law lacked sufficiently broad and explicit exceptions to protect pregnant minors' health and therefore imposed an undue burden upon many pregnant minors. Also, inadequate confidentiality in the law's judicial bypass process might impose an additional undue burden upon many eligible pregnant minors. Questions Presented: Whether the Act's judicial bypass mechanism sufficiently protects the pregnant minor's health, and whether the "undue burden" standard is the correct judicial standard. PLANNED PARENTHOOD of Northern New England, et al., Plaintiffs, Appellees, V. Peter HEED, Attorney General of the State of New Hampshire, Defendant, Appellant United States Court of Appeals for the First Circuit Decided November 24, 2004 [Excerpt: some footnotes and citations omitted] TORRUELLA, Circuit Judge: ("RSA") § 132:24-28 (2003). Defendant-appellant Attorney General of the I. Background State of New Hampshire, Peter Heed, acting in his official capacity ("Attorney General"), In June 2003, the New Hampshire appeals the district court's order declaring legislature passed [the Act] . which states unconstitutional and enjoining the that: enforcement of the Parental Notification Prior to Abortion Act (the "Act"), 2003 N.H. No abortion shall be performed Laws 173, codified at N.H. Rev. Stat. Ann. upon an unemancipated minor or 126 upon a female for whom a from the time the petition is filed." Id. guardian or conservator has been appointed . because of a If the minor's petition is denied, an finding of incompetency, until at "expedited confidential appeal shall be least 48 hours after written notice available," and the appellate court must rule of the pending abortion has been within seven calendar days of the docketing delivered. ... RSA 132:25, I. of the appeal. Access to the trial and appellate courts for the purposes of these The notice requirement is waived if petitions "shall be afforded such a pregnant minor 24 hours a day, 7 days a week." RSA (a) The attending abortion 132:26, 11(c). Violation of the Act can result provider certifies in the pregnant in criminal penalties and civil liability. minor's medical record that the RSA 132:27. abortion is necessary to prevent the minor's death and there is ... The Act was to take effect on December 31, insufficient time to provide 2003. On November 17, 2003, plaintiffs- required notice; or appellees Planned Parenthood of Northern New England ... filed a complaint under 42 (b) The person or persons U.S.C. § 1983, seeking a declaratory who are entitled to notice certify judgment that the Act is unconstitutional and in writing that they have been a preliminary injunction to prevent its notified. RSA 132:26, I. enforcement once it became effective. The district court merged the preliminary and If a minor does not want her parent or permanent injunction proceedings and, on guardian notified, she may request a state December 29, 2003, issued an order holding judge, after a hearing, to "authorize an the Act unconstitutional and permanently abortion provider to perform the abortion if enjoining its enforcement. said judge determines that the pregnant minor is mature and capable of giving The district court found unconstitutional informed consent to the proposed abortion," both (1) the lack of an explicit exception to or if the judge determines that "the protect the health of the pregnant minor, and performance of an abortion upon her without (2) the narrowness of the Act's exception for notification of her parent, guardian, or abortions necessary to prevent the minor's conservator would be in her best interests." death. Having found the Act fatally flawed RSA 132:26, II. In these proceedings, the in these respects, the district court declined pregnant minor may act on her own behalf to rule on the constitutionality of the Act's or be appointed a guardian ad litem, and she failure to provide specific protections for the must also be advised that she has a right to confidentiality of a minor seeking a judicial request court-appointed counsel. RSA waiver. 132:26, 11(a). The court proceedings "shall be confidential and shall be given such The Attorney General, acting in his official precedence over other pending matters so capacity, appeals. that the court may reach a decision promptly and without delay so as to serve the best II. Analysis interest of the pregnant minor." RSA 132:26, 11(b). Specifically, "in no case shall We review the district court's decision the court fail to rule within 7 calendar days regarding the constitutionality of a statute de 127 novo. United States v. Lewko, 269 F.3d 64, the issue, the district court followed the 67 (1st Cir. 2001). majority of circuits that apply the Casey and Stenberg standard to legislation regulating The Attorney General argues that in abortion. The Attorney General notes that deciding whether the Act is facially invalid the Supreme Court applied the Salerno we should apply the "no set of standard in the abortion context prior to circumstances" standard set forth in United Casey, see, e.g., Ohio v. Akron Ctr. for States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d Reprod Health, 497 U.S. 502, 514, 111 L. 697, 107 S. Ct. 2095 (1987). This standard Ed. 2d 405, 110 S. Ct. 2972 (1990), and requires plaintiffs challenging a state law as urges us to follow the Fifth Circuit's facially invalid to show that "no set of decision in Barnes v. Moore, 970 F.2d 12, circumstances exists under which the Act 14 n.2 (5th Cir. 1992), that Casey does not would be valid." Id. at 745. The Attorney displace Salerno's "no set of circumstances" General's argument rests on the premise that test for facial challenges to abortion the Salerno standard is applicable to the Act regulation. despite the agreement of a plurality of Justices in Planned Parenthood of S.E. Pa. [See also Manning v. Hunt, 119 F.3d 254, v. Casey, 505 U.S. 833, 876-77, 120 L. Ed. 268 n.4 (4th Cir. 1997) (arguing that a court 2d 674, 112 S. Ct. 2791 (1992), that a law is bound to apply Salerno)]. The which "has the purpose or effect of placing a overwhelming majority of circuits to address substantial obstacle in the path of a woman this issue, however, have disagreed with the seeking an abortion of a nonviable fetus" Fifth Circuit. See, e.g., PlannedParenthood places an unconstitutional "undue burden" of Cent. N.J v. Farmer, 220 F.3d 127, 142- on the exercise of her right to choose 43 (3d Cir.
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