WASHINGTON, D.C., Nov. 30, 11:01 a.m.—It is a New Hampshire moment, a moment that all New Hampshire Bar members could treasure, no matter what their views are on the divisive issue of abortion.

There is New Hampshire’s attorney general, Kelly A. Ayotte, before the bar of the nation’s highest court, arguing to reinstate a parental notification law struck down  by two lower courts. The case has attracted national attention, and this argument has been eagerly awaited as the first test of an abortion law to be heard by the high court in five years. The outcome has the potential to influence abortion law precedents and shift the balance in this long-running, always-fierce debate. Ayotte v. Planned Parenthood of Northern New England  seeks to reinstate a law invalidated by two federal courts due to the law’s lack of a specific exception for non-life threatening medical emergencies. Ayotte’s position in defense of the law is that it does protect minors in such situations and, furthermore, if some portion of the law isn’t valid, courts should not invalidate the rest of the law on that basis.

Just 60 seconds into Ayotte’s argument —as she discusses the remedy for those rare cases where a minor can ask a judge to override the parental notification requirement—a fellow member of the NH Bar, David Hackett Souter, Associate Justice of the United States Supreme Court, interrupts. Politely, but incisively, Souter zeroes in on Ayotte’s discussion of the judicial bypass option for minors seeking to terminate a pregnancy when faced with a medical emergency.

SOUTER: “The point which I’m not clear on… occurs in what you’ve said on page 11 of your yellow [Reply?] brief, if you could get that out….You go through the kind of worst-case analysis. And you say, well, you know, assuming that all of the safeguards [judicial bypass] somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period…a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms. What do you mean when you say it would be constitutionally protected? I read that as suggesting that there was indeed a constitutional requirement for some kind of health exception, but that may not be what you meant. What do you mean by constitutionally protected? Where are you getting that?”

AYOTTE: Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court’s cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward.”

Justice Souter is not finished, pressing Ayotte with several more questions, attempting to pin her down on whether the law can be constitutional without acknowledging that it complies with a health requirement (which its sponsors specifically excluded from the law). Ayotte stands her ground, maintaining that in her view, there is not “an express requirement of a health exception but that the law cannot be applied in a manner to infringe on the minor’s health if that rare emergency case arises.”

Other justices continue the questioning, focusing on whether the law, as it is written, workably protects a minor (and the doctor who might operate on her) seeking an abortion in a health emergency. Souter remains silent for the rest of Ayotte’s argument, although he initiates the questioning of Paul Clement, United States Solicitor General (also arguing in defense of the law) as to how to apply a “severability” provision to save the law if the emergency provisions are deemed flawed. “I don’t know how you would sever a health exception that is not there,” Souter says, turning to Justice Scalia following a comment from Scalia supportive of Clement’s position. “In effect, if we were to enjoin certain applications, we would be injecting an exception that they [lawmakers] rejected,” Souter says. Clement responds that NH lawmakers sought to avoid inserting a “broad health exception” which, in other states, has been commonly used to circumvent notice provisions, but the state, he said, did not intend to exclude a health “emergency.”

As the argument proceeds—20 minutes for Ayotte, 10 yielded by the state’s side to Clement, and 30 minutes for the respondents, Planned Parenthood of Northern New England—it begins to appear that a consensus may exist among a majority of the justices—the law’s medical emergency provisions are lacking, but that defect may not be sufficient to require the invalidation of the entire law. Instead of re-shaping the abortion-law landscape, the justices, particularly Chief Justice John Roberts and Associate Justices Kennedy, O’Connor, Breyer, and Ginsburg, appear intent on tweaking the law to conform it to existing precedent. And they are trying to enlist the advocates, through proffered propositions and questions, in reaching a solution that will save the law’s application to the majority of instances.

After the argument, Ayotte said she was satisfied with her performance, although she acknowledged that after every argument or trial, second-guessing is inevitable.

“When you first get up there, you are of course nervous as any attorney would be, appearing for the first time. But then you are just trying to answer their questions—and all I really wanted was more time,” Ayotte said. “Their questions are so well-thought-out and so in-depth, I wanted to be able to give them more…

“I wasn’t surprised by the questions they asked—we knew that the medical emergency exception and its adequacy was going to be an issue, as well as the main issue of whether the law deserved to be facially challenged,” Ayotte said.

“As many times as you practice, and as hard as you work to prepare, you can’t appreciate the number and the intensity of the questions,” she added. “And when Justice Souter asked me to refer to my brief for a question he had— that was a surprise. That was a real New Hampshire moment wasn’t it?”

Preparing for that moment has been in the works for months, since the Court accepted the case last May. After submitting the main brief, assisted in drafting by Deputy Attorney General Michael Delaney, Ayotte tapped the expertise of many in her office to assist in preparing for oral argument. Associate Attorney General Daniel Mullen and others participated in several internal “moot courts” and then she accepted offers to argue before moot courts conducted by law professors and others familiar with Supreme Court practice.

Mullen said the office also had to keep track of a number of amicus briefs—20 filed in support of the law, and more than a dozen supporting the lower courts’ decisions overturning it. “You can’t cover everything in a 50-page brief,” said Mullen. “Some issues you have to leave out, and the amicus briefs can dwell on those issues.”

As for what’s next—the case has been submitted and all the parties can do is wait. “The Court could remand and provide some guidance in their opinion, or, as we prefer, the Court could reverse and dismiss the challenges, allowing the petitioners to bring a different kind of pre-enforcement challenge,” Mullen explained.

New York Times reporter Linda Greenhouse, who regularly covers the Supreme Court, in a recorded comment on www.nytimes.com, said the case isn’t likely to make new law in the area of abortion regulation. She said she expects “a consensus decision pretty soon,” with a remand to the First Circuit with guidance to that court on formulating a narrower injunction focused on the lack of a medical emergency exception rather than overturning the entire law.

A small contingent of Granite Staters came to Washington to see the argument, including lawmakers with positions on both sides of the issue. Among the Bar members attending were Katherine Hanna, the governor’s legal counsel; NH Senator Peter Burling, Jennifer Frizzell (NH Counsel for Planned Parenthood), Ann McLane Kuster, of Concord; and Jennifer Parent and Heather Krans, both attorneys in Manchester.

A transcript of the oral argument can be found at www.nhbar.org. Listen to recording of the oral argument at Multimedia at http://www.nytimes.com/2005/12/01/politics/politicsspecial1/01scotus.html.