The Right to Make Personal Health Decisions

That is what the New Hampshire parental notification law currently being argued in the Supreme Court is about. The justices' ruling will answer two broad questions: One, does a teenage girl have the right to her health? And two, does a doctor have the right to make medical and health decisions for her or his patients?

Consider the hypothetical situation raised by Justice Stephen Breyer today:

It's the middle of the night in New Hampshire, and a teenager, afraid to tell her parents she is pregnant, appears at an emergency room. A doctor diagnoses a spike in blood pressure that won't kill the girl but could render her sterile unless she has an immediate abortion. The doctor calls a judge for permission to perform the procedure, as state law prescribes -- and voice mail answers.

"What's supposed to happen?" asked Justice Stephen Breyer, who posed the hypothetical situation Wednesday during oral arguments at the Supreme Court.

I would have added a second part to Justice Breyer's question: What if the doctor calls a judge for permission to perform an abortion, knowing that if an abortion is not performed, some important aspect of the girl's health will suffer -- and the judge refuses that permission?

These are very important and relevant questions, given that the New Hampshire parental notification law contains no health exception -- only an exception for cases in which the girl will die if an abortion is not performed immediately. In other words, the girl has a right to stay alive; but she does not have a right to stay healthy.

This makes a twisted kind of sense, when you remember that the same philosophy applies to the fetus a pregnant teenager is carrying: The fetus has a right to life; but it does not have a right to adequate or decent health care, either before birth or after. What I mean by this is that the government is so invested in the idea that a fetus has an inherent right to be born that said government will force a woman, or a girl, to carry a pregnancy to term. But the government is not so invested in the idea that a fetus or a newborn baby has an inherent right to be healthy that said government will make certain that the fetus or baby gets health care, even if that means making free or low-cost prenatal and postnatal services available to poor mothers or fathers.

Parental notification or consent laws are on the books in most states now, but almost all those laws contain health exceptions to the requirement for parental involvement. Only five states have parental notification or consent laws with no health exception; New Hampshire is one of them.

And New Hampshire's attorney-general does not think that a health exception is necessary.

In answer to Breyer's question, New Hampshire Attorney General Kelly Ayotte said that doctors confronted with a midnight emergency could proceed, protected by other provisions of New Hampshire law that shield doctors' good-faith medical decisions from liability.

But Breyer said the parental notification law itself "suggests the contrary." Nor did he embrace Roberts' approach, telling U.S. Solicitor General Paul Clement that any effort to have courts craft a solution would "get into the greatest difficult issue there is in this area, which is what does that health exception mean? We've said throughout that that health exception has to be defined first by a legislature."

It was expected that the case would not turn into a vehicle for reassessing Roe v. Wade. But the repeated emphasis on a narrow ruling that might return the hardest questions to lower courts was perhaps more of a surprise.

New Hampshire had asked the court not only to rule that it does not have to have a health exception but also to apply a strict standard under which its law could not be challenged unless it could be shown to be unconstitutional in all circumstances.

It's hard to believe, but it's true. The state of New Hampshire (its government, at least) is weeping crocodile tears over fertilized eggs, zygotes, embryos, and fetuses; but doesn't have a penny's worth of concern for the health of a pregnant teenage girl.