On the November 29 edition of Fox News' The Big Story with John Gibson, Fox News senior judicial analyst Andrew P. Napolitano misrepresented the central legal issue in the case Ayotte v. Planned Parenthood of Northern New England, which was argued before the Supreme Court on November 30. The case involves the constitutionality of a New Hampshire law requiring minors to notify a parent before an abortion is performed that contains a narrow exception to the notification requirement if the minor's life is endangered.
In asserting that Supreme Court nominee Samuel A. Alito Jr. would likely rule to uphold such a law if he is confirmed, Napolitano said that the “New Hampshire statute requires that minors notify their parents ... prior to an abortion” and then asserted again that "[t]he New Hampshire case is parental notification." He compared the “parental notification” requirement in the New Hampshire law to a spousal notification requirement in Pennsylvania that in 1990 came before a 3rd U.S. Circuit Court of Appeals panel on which Alito was sitting. Alito dissented from the majority in upholding the spousal notification provision in that case, Planned Parenthood of Southeastern Pennsylvania v. Casey; the Supreme Court later struck down that provision. Because the Ayotte case also involves notification, Napolitano apparently reasoned that Alito's vote in Casey suggests he would vote to uphold the New Hampshire law as well.
While Alito's vote in the Ayotte case is a matter of speculation, Napolitano is wrong in claiming that the issue in the case is simply one of notification. The plaintiffs in the case are challenging the absence of a health exception in the law. In 2003, New Hampshire state lawmakers passed legislation prohibiting “any abortion provider from performing an abortion on certain minors or incompetent females without giving 48 hours' written notice ... to a parent or guardian.” The law provides an exception to the notification requirement if the pregnancy threatens the life of the pregnant minor, but it does not provide an exception for other health-related issues. Two lower federal courts have ruled that the limited health exception was unconstitutional because it placed an “undue burden on the right to choose abortion.”
From the November 29 edition of Fox News' The Big Story with John Gibson, with guest host David Asman:
NAPOLITANO: Because tomorrow the Supreme Court will hear an appeal of a decision on this New Hampshire statute. The New Hampshire statute requires that minors notify their parents -- not get permission, but notify their parents -- prior to the abortion. Judge Alito, from his dissent that Megyn [Kendall, Fox News reporter] just talked about in the Casey case, has indicated he would probably vote to uphold that regulation.
ASMAN: It was a different type of notification.
NAPOLITANO: Correct. The Casey case had to do with spousal notification. The New Hampshire case is parental notification.