Washington The Supreme Court on Wednesday wrestled with a New Hampshire law that requires a parent to be told before a daughter ends her pregnancy, with no hint the justices were ready for a dramatic retreat on abortion rights under their new chief.
The court is dealing with its first abortion case in five years, as well as the first in the brief tenure of Chief Justice John Roberts.
The case does not challenge the 1973 Roe v. Wade ruling that declared abortion a fundamental constitutional right, and the justices seemed to be seeking a compromise that would avoid breaking new ground.
Several said the law was flawed because it requires that a parent be informed 48 hours before a minor child has an abortion but makes no exception for a medical emergency that threatens the youth's health.
At the same time, the court appeared unhappy with lower court decisions that blocked the law from being enforced at all.
"This case doesn't involve an emergency situation," Roberts said.
The stakes are significant because the ruling could signal where the high court is headed under Roberts and after the retirement of Justice Sandra Day O'Connor.
Abortion was a prominent subject in Roberts' confirmation hearings and has emerged as a major issue in President Bush's nomination of appeals court Judge Samuel Alito to replace O'Connor, who has been the swing vote in support of abortion rights.
Protesters demonstrated outside - singing, chanting and praying - and the argument inside the court was at times contentious, too, with justices talking over each other and over the lawyers.
New Hampshire Atty. Gen. Kelly Ayotte struggled to field sharp questions on why state lawmakers had made an exception to allow abortions when a young mother's life - but not her health - was in danger. The court has held that abortion restrictions should include a health exception.
Doctors would fear being prosecuted or sued if they performed an abortion on a severely sick minor who did not want to notify a parent, several justices said.
"That's the real problem here for the doctor who's on the line," said Justice Ruth Bader Ginsburg.
The law allows a judge to waive the requirement, and Justice Antonin Scalia said: "It takes 30 seconds to place a phone call."
"It seems to me that the bypass procedure can go a long way toward saving this statute," Justice Anthony M. Kennedy said.
Tracking down a judge and making the case for a waiver could take too long, said Jennifer Dalven, an attorney with the American Civil Liberties Union who argued on behalf of Planned Parenthood of Northern New England.
"For women in some emergencies, every minute is critical. Every minute puts them at risk of losing their future fertility and of major organ damage," she said.
"I don't think saving a statute is worth putting a teen's health at risk."
If Alito is confirmed by the Senate early next year his vote could be needed to break a tie in the case, although the justices may find a consensus in resolving the appeal without a landmark decision. For example, they could tell the 1st U.S. Circuit Court of Appeals in Boston to review the matter again and issue a more limited ruling.
A Senate vote is planned for January on Alito, who is expected to be more receptive to abortion restrictions than O'Connor.