Justice Kennedy is arguing that a medical emergency could be addressed through the judicial bypass. Dalven is replying that once a minor arrives in the ER, it’s too late for her to go to court and seek an exception to parental notification.
Scalia: Surely not the delay for a quick phone call. If NH sets up a special court with an abortion judge, why wouldn’t that work?
Dalven: If it only takes an instant call to the judge to get approval for an abortion, then what’s the point of the statute.
Chief Justice Roberts: Why didn’t the physicians preemptively challenge the bypass process instead of the whole law then?
Dalven: No matter how fast the bypass procedure, it would be insufficient.
Roberts: So why does this implicate the vast majority of the cases? … This is a facial challenge. There’s no enforcement challenge at all.
Ginsburg: Why couldn’t we rule that the NH statute is invalid to the extent that it fails to protect situations in which there’s an imminent danger to health? Why wasn’t that the appropriate judgment of the First Circuit in this case?
Dalven: That would solve the constitutional problem, but that’s not the best course of action.