WASHINGTON, Jan. 18 - In its first abortion ruling in six years, the Supreme Court issued a unanimous decision on Wednesday that reaffirmed the need to include an exception for medical emergencies in a law that restricts teenagers' access to abortion. The decision told a lower court to reconsider its ruling that struck down, in its entirety, a New Hampshire law that fails to include such an exception. "We try to limit the solution to the problem," Justice
Sandra Day O'Connor said in her opinion for the court, instructing the lower court to consider invalidating the law only as it applies to those few teenagers who need an immediate abortion for medical reasons.
"We do not revisit our abortion precedents today," Justice O'Connor declared in the opening words of what is likely to be her last opinion for the court. The studiously bland 10-page opinion carefully sidestepped the abortion debate that has been such a prominent feature of public discourse about the court's future.
The hiatus may be brief, however. At their conference on Friday, the justices are scheduled to take up the Bush administration's appeal of a lower court ruling that declared unconstitutional a federal law, the Partial-Birth Abortion Ban Act of 2003.
That case, on which the court had deferred action until the New Hampshire case was decided, presents issues that may not be so easily avoided. Further, the federal case, if the court agrees to hear it, would be argued after Justice O'Connor's departure. She was part of the 5-to-4 majority that struck down a Nebraska precursor of the federal law in 2000, so her successor, likely to be Judge
Samuel A. Alito Jr., could be in a position to cast the deciding vote.
In the New Hampshire decision on Wednesday, the justices accepted the finding by two lower federal courts that the New Hampshire law was constitutionally deficient in not making explicit provisions for pregnant teenagers facing a medical emergency. The law requires notice to a parent, followed by a 48-hour waiting period, before a doctor can perform an abortion on a girl under the age of 18.
Where the justices differed from the Federal District Court in Concord, N.H., and the United States Court of Appeals for the First Circuit, in Boston, was on how to remedy the absence of a medical-emergency provision. The two lower courts had barred enforcement of the entire statute, even for the great majority of teenagers for whom the lack of an exception is not relevant.
The choice of this "most blunt remedy" was unjustified, Justice O'Connor said, when a "more finely drawn" remedy might be more consistent with the intent of the Legislature, which passed the law in 2003.
Consequently, the Supreme Court vacated the appeals court's decision and ordered it to examine which option the Legislature would have preferred: a statute with an emergency exception, or no enforceable parental-notice law at all. "We try not to nullify more of a legislature's work than is necessary," Justice O'Connor said, adding that "the touchstone for any decision about remedy is legislative intent."
If the decision, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, turns out to be Justice O'Connor's last, it will be a fitting coda to a 25-year tenure in which she often played a pivotal role in the court's abortion jurisprudence.
Perhaps Chief Justice John G. Roberts Jr. had that idea in mind when he assigned her the opinion after the case was argued on Nov. 30. It was evident from that argument that the justices were looking for a narrow way to decide the case and were setting aside, at least for the moment, whatever passion they bring to the abortion debate. Justice O'Connor's opinion embodied that collective judgment, whether under the guiding hand of the new chief justice or due to a confluence of individual responses.
A unanimous decision last week, rejecting state immunity from some lawsuits by disabled prison inmates, reflected a similar desire to rule narrowly and avoid hard issues for now.
However the New Hampshire decision was reached, "the decision preserves the status quo while the court is in transition," said Clarke D. Forsythe, senior attorney for Americans United for Life, a public interest law firm that litigates against abortion.
Mr. Forsythe filed a brief in the New Hampshire case on behalf of the legislative sponsors of the New Hampshire law, the Parental Notification Prior to Abortion Act. In an interview, he said the answer to the question that Justice O'Connor's opinion posed to the lower courts was "absolutely clear."
Rather than have no parental-notice law at all, he said, the sponsors would accept an exception for medical emergencies, a choice he said they made clear by including a clause in the statute providing that if any application of the law was found to be invalid, "such invalidity shall not affect the provisions or applications" as to which there was no problem.
By including this language, known as a severability clause, the sponsors "practically anticipated" the court's decision, he said. An opposite brief, on behalf of 153 New Hampshire legislators who opposed the parental-notice law, was filed in support of the plaintiffs, a doctor and three medical clinics. Those legislators said the debate over the bill made clear that the sponsors wanted to test the Supreme Court's abortion precedents and "would have preferred to have no law rather than a law that contains a medical emergency exception in it." Jennifer Dalven, a lawyer for the American Civil Liberties Union, who argued the case for the plaintiffs in the Supreme Court, said in an interview that the sponsors "very clearly did not want a health exception" and predicted that the lower courts would once again bar enforcement of the entire statute.
"We're very happy that the court reaffirmed the need for a medical emergency exception," Ms. Dalven said, adding that the.
