New Hampshire Repeals Parental Notification Law

By Linnea Forsythe[1]

On June 29, Gov. John Lynch of New Hampshire signed a bill into law repealing a requirement that health care providers notify parents at least 48 hours before a minor has an abortion.[2]  

The Governor’s action marks the final chapter in the controversial teen abortion litigation – Ayotte v. Planned Parenthood of Northern New England – that went all the way to the U.S. Supreme Court.

The New Hampshire legislature passed the “Parental Notification Prior to Abortion Act” (the Act) in June 2003. Before its implementation, health care providers challenged the Act in federal district court.[3]  Their lawsuit claimed that the Act was unconstitutional because it did not allow a minor to obtain an abortion without parental notification when her health was at risk.  The district court agreed, finding the Act unconstitutional because it lacked a health exception. The court invalidated the Act in its entirety.  The First Circuit affirmed the district court’s decision, and the U.S. Supreme Court decided to hear the case.[4]

The Supreme Court’s opinion in Ayotte surprised both sides.  Rather than review the constitutional questions presented, the Court addressed the appropriateness of relief granted.  Although in a prior case the Supreme Court invalidated an entire statute because it did not include a health exception,[5] the Court in Ayotte questioned whether it was necessary to strike the entire law.  The Supreme Court held that a court must consider whether it can shape a more “modest” remedy that would preserve the statute and eliminate its unconstitutional provisions.[6]  It set out three principles that should frame a remedies analysis and remanded the case back to the First Circuit to determine the appropriate relief.[7]

Advocates on both sides were watching carefully to see how the First Circuit would apply these principles, as the Supreme Court clearly suggested limited relief would be possible in the case.   If the First Circuit had found a way to preserve part of the parental notification statute while nullifying its unconstitutional application, the decision would have seriously impacted how adolescent abortion rights are both legislated and litigated in the future.

Now, with the Act’s repeal, the case will no longer be decided.  Thus, advocates will have to wait for another case to see the real ramifications of Ayotte on abortion rights advocacy.

Linnea Forsythe was a summer 2007 law clerk at NCYL. She is in her third year at UC Hastings.

[1] Portions of this article derive from Gudeman, The Ayotte Opinion: Implications for New Hampshire and Other States, Youth Law News, Jan.–Mar. 2006.
[2] H.B. 184, 2007 Gen. Court, 160^th Sess. (N.H. 2007).
[3] Planned Parenthood of N. New Eng. v. Heed, 296 F. Supp. 2d 59 (D.N.H., 2003).
[4] Planned Parenthood of N. New Eng. v. Heed, 390 F.3d 53, 65 (1^st Cir. 2004), cert. granted sub nom.  Ayotte v. Planned Parenthood of N. New Eng. (U.S. May 23, 2005)(No. 04-1144).
[5] Stenberg v. Carhart, 530 U.S. 914, 946 (2000)(invalidating an abortion statute in toto for its lack of health exception).
[6] Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 331 (2006).
[7] Id. at 329-330, 332.