Jamming with the Supremes, continued Getting a glimpse of Roberts's first abortion test

ROBERTS’S FIRST STAND

Roberts said little during the second hour of arguments, when New Hampshire attorney general Kelly Ayotte and ACLU lawyer Jennifer Dalven made their cases for and against the parental-notification statute. (He didn’t say much during the first hour either, during arguments in Schiedler v. NOW.)

But some of the veterans had a lot to say. Jumping in almost immediately, relatively liberal justice David Souter (I knew it was him because our enthused aide put up six fingers) asked what would happen to a doctor who performed an emergency abortion to save a teenage girl from infertility, say, or permanent liver damage, but not necessarily from death.

Ayotte claimed that New Hampshire’s "Competing Harm Doctrine" — which says that if you steal a rope to save your neighbor from drowning, you can’t be prosecuted for stealing the rope, and is more frequently used to limit doctors’ liability — would protect doctors from facing legal consequences in such situations. (This begs the question: if state law already prescribes such protections, why did New Hampshire legislators not lay out an explicit medical-emergency exception at the outset?)

Liberal Stephen Breyer, who sounded exasperated with Ayotte more than once, painted a grim hypothetical scene, in which a pregnant teenager goes to the emergency room at 2 am on a Saturday. She needs an immediate abortion, or risks never having children again, and she doesn’t want to tell her parents. The doctor can’t get a judge on the phone. "He doesn’t want to risk being prosecuted," Breyer said. "He doesn’t want to lose his license." What would the doctor’s lawyers advise?

Ayotte again put forward the competing-harm defense, but the answer still wasn’t good enough for staunchly liberal justice Ruth Bader Ginsburg, who seemed irked later when she chided Ayotte: "Defense is not what we want," she said sarcastically in her deep, dry voice. "What we want is no claim" filed against doctors who are faced with such urgent medical situations in the first place.

Later, once the ACLU’s Dalven stood up, conservative justice Antonin Scalia, who manages to sound as scary as his judicial principles, seemed skeptical about the extent of such urgency. If a doctor doesn’t have 30 seconds to phone a judge, he said, "the doctor better not put on his gloves." The comment garnered laughs from his courtroom audience.

In Dalven’s half-hour before the justices, she seemed a bit flustered, and was asked more than once to focus her argument — a request that seemed to reflect simultaneously on the case itself, and her presentation of the argument.

Indeed, it was Roberts who seemed most intent on whittling down the argument to specifics.

"He asked kind of narrow, careful questions to determine whether the statute could be preserved except in cases of a real medical emergency," said Forsythe, who was keeping a close eye on Roberts’s first abortion outing.

And the chief justice did jump in more than once to suggest passing the case back down to the federal courts (one of which, Boston’s First Circuit Court of Appeals, already ruled the New Hampshire law unconstitutional for its lack of a health exception), where it could be reframed more narrowly. Several times, Roberts, whose youthful tenor stood in contrast to his more gravel-voiced older counterparts, mentioned the possibility of doctors bringing a "pre-enforcement challenge," a sort-of line-item approach, which would deal solely with the law’s lack of a medical-emergency exception.

"Presumably the litigation would be very similar to what we’ve seen in this case," he said to Dalven. "But it would be focused on the provision that is causing you concern, rather than the statute as a whole."

Sandra Day O’Connor echoed that idea: "How can we narrow the application?" (O’Connor, who passed the deciding vote on health exceptions the last time the court heard an abortion case, Stenberg v. Carhart, may not even be around to shape this decision if Alito is confirmed quickly, and he would almost certainly tip the court in a different direction.)

For now, it seems unlikely that the Supreme Court will strike down the entire law. A more probable outcome is that it will uphold the principle of New Hampshire’s statute, while addressing the missing exception for teenagers who are in urgent medical danger but whose lives are not at risk.

"They have to do some work to figure out how they’re going to do it," says Tushnet, the Georgetown law professor. And according to Tushnet, this case may have an unusual conclusion. Typically, when a law is challenged as a whole, pre-enforcement, one side either wins everything or loses everything. But in Ayotte, "They don’t want to do that. They want to say: ‘Most of this stuff is fine, but one part of it isn’t fine.’"

FEEL THE POWER

All of a sudden, court was dismissed. I was just getting into it, just getting the hang of listening to voices without faces, and to the legal jargon that bounced off the grandiose, stone-carved walls, when the gavel pounded, we all stood up, and I stepped on my neighbor’s toes to catch a fleeting glimpse of Scalia’s (maybe) robe.

Judgments could come any time between tomorrow and the end of the summer.

Back outside, at a press conference, representatives from NOW and the Family Research Council literally pushed each other out of the way for a chance to tell the crowd that their side had come out on top.

"It was an incredible thing to watch, just to be a part of. It’s a beautiful, dignified, powerful room — you can just feel the power the justices have," said Nancy Moser, the president and CEO of Planned Parenthood of Northern New England who had never stepped foot in the Supreme Court before that morning. "I thought the justices were really engaged, and were really discussing the issues at hand in this case. The health of the woman has been paramount, and I was pleased that there seemed to be broad support for the precedent."

For now, both sides must wait, probably for a compromise that won’t make anyone happy. And I’ll wait for the next case, which is sure to come, and hope that I have a better view.

Deirdre Fulton can be reached at dfulton[a]phx.com.