Success! Apparently, the case Ayotte v. Planned Parenthood was not a New Hampshire Supreme Court decision, but a First Circuit Court decision. The case from the circuit court is called Planned Parenthood, et al. v. Heed (04-1161) and was decided by the First Circuit Court Nov. 24, 2004. When the case started, Peter Heed was the Attorney General of New Hampshire, but since then, Ayotte has become the new Attorney General, and thus, the new respondent (remember that when a case is appealed, the terms flip; the respondent becomes the petitioner, and vice versa).

Some background of the case, in terms of New Hampshire law:

In June 2003, the New Hampshire legislature passed "AN ACT requiring parental notification before abortions may be performed on unemancipated minors," which states that:

No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

RSA 132:25, I. (2) Paragraph II specifies that "written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent." RSA 132:25, II. Paragraph III allows for notification by certified mail with return receipt requested and with restricted delivery to the addressee. RSA 132:25, III.

The notice requirement is waived if

(a) The attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide required notice; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

RSA 132:26, I.

If a minor does not want her parent or guardian notified, she may request a state judge, after a hearing, to "authorize an abortion provider to perform the abortion if said judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion," or if the judge determines that "the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests." RSA 132:26, II. In these proceedings, the pregnant minor may act on her own behalf or be appointed a guardian ad litem, and she must also be advised that she has a right to request court-appointed counsel. RSA 132:26, II (a). The court proceedings "shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interest of the pregnant minor." RSA 132:26, II (b). Specifically, "[i]n no case shall the court fail to rule within 7 calendar days from the time the petition is filed." RSA 132:26, II (b). The judge must also "make in writing specific factual findings and legal conclusions," and order a record of the evidence to be maintained. RSA 132:26, II (b).

If the minor's petition is denied, an "expedited confidential appeal shall be available," and the appellate court must rule within seven calendar days of the docketing of the appeal. Access to the trial and appellate courts for the purposes of these petitions "shall be afforded such a pregnant minor 24 hours a day, 7 days a week." RSA 132:26, II (c).

Violation of the Act can result in criminal penalties and civil liability:

Performance of an abortion in violation of this subdivision shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification. A person shall not be held liable under this section if the person establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are bona fide and true, or if the person has attempted by reasonable diligence to deliver notice, but has been unable to do so.

The U.S. District Court for the District of New Hampshire found the statute to be unconstitutional and issued an order (an injunction) enjoining (preventing the enforcement of) the statute.

At issue is whether or not the New Hampshire law is "facially invalid," meaning that the law is patently invalid as written. The New Hampshire Attorney General argued that the standard of facial invalidity, as set forth in United States v. Salerno, 481 U.S. 739 (1987), should be used. Such a standard requires that the plaintiffs prove that "no set of circumstances exists under which the Act would be valid." That's a pretty tough order for Planned Parenthood to fill, and the Circuit Court wasn't going to buy it.

Instead, the Circuit Court suggested that the standard in the case should be Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), in which the U.S. Supreme Court concluded "that a law which 'has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus' places an unconstitutional 'undue burden' on the exercise of her right to choose abortion." In much the same way that a "chilling effect" of the possibility of censorship places an undue burden on the exercise of First Amendment rights, laws which try to prevent abortion by making the process difficult also place a "chilling effect" on abortion (this is only an analogy, kids; they're not one and the same issue). If the process of getting an abortion is difficult an time-consuming, fewer people who would have wanted abortions will not get them because of administrative obstacles put in place specifically to discourage people from having abortions, not for a "compelling government interest" (for more analogy regarding laws put in place to discourage particular activity, not to further a compelling government interest, see Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), where the city of Hialeah, Florida tried to enact laws specifically to discourage the practice of the Santeria religion). But where were we? Oh, yes: the Circuit Court suggested that facial invalidity should be determined by Casey because, in that case, the court determined that "an abortion regulation is facially invalid if 'in a large fraction of cases in which [the regulation] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion,' thus imposing an 'undue burden.'"

Additionally, the New Hampshire law makes no exception for abortion in order to save the mother's life, something that the Supreme Court mandated for all abortion laws in Stenberg v. Carhart, 530 U.S. 914 (2000). In this case, the Court objects to a parental consent requirement which makes no provision for the health of the mother, since "[a] health exception is as requisite in statutory or regulatory provisions affecting only minors' access to abortion as it is in regulations concerning adult women." The Attorney General argued that there is an implied provision for the health of the mother, but the Circuit Court observed, "Even if these statutes could be cobbled together to preclude all civil and criminal liability for medical personnel who violate the Act's notice requirements in order to preserve a minor's health, we would not view them as equivalent to the constitutionally required health exception." The Court later echoed the words of Dr. Wayne Golder (who testified that "physicians cannot predict with adequate precision what course medical complications will take, and thus cannot always determine whether death will occur within [the 48-hour window]"), observing that "the Act forces doctors to think about criminal prosecution at a time when we need to be concentrating on doing what is best for our patients, thus creating unnecessary risk to patients' health and lives." Thus the Circuit Court declared the statute facially unconstitutional, per the requirement in Stenberg.

The Supreme Court has had a nasty and devisive history on abortion. In almost every instance that this court has dealt with abortion, it's been a plurality decision. It is unknown whether Rehnquist will be around to hear this case, and if the Court ends with a tie, then the lower court ruling stands. No doubt Scalia and Thomas will want to frame this as an issue of "no one has a right to abortion," as Scalia and Rehnquist have in the past.