This week the United States Supreme Court heard oral argument on its first abortion case in five years. The case is Ayotte v. Planned Parenthood, No. 04-1144 of the high court’s docket.

While initially touted in the press as a showdown on the abortion issue, Ayotte does not challenge the 1973 Roe v. Wade ruling that declared abortion a fundamental constitutional right; however, the scope of this right may well be limited.

At issue is New Hampshire’s 2003 parental-notification law which requires minors to tell a parent before they can get an abortion unless a judge grants a “bypass.” The only stated exception is for girls who would die without an abortion. A Boston-based federal appeals court ruled that the lack of an express health exception made the entire statute too restrictive and declared it unconstitutional. Thus, the entire law was thrown out.

As written, the New Hampshire law requires physicians performing an abortion on a minor notify her parents and wait 48 hours after doing so before carrying out the procedure. The law has an exception for situations when the doctor certifies that the minor’s life is at stake, but it has none for situations in which her health might be at risk — something the court’s case law generally requires. It does, however, have a provision allowing a judge to override the notification requirement and waiting period if that is in the minor’s best interest, including in the interest of her health.

Herein lies the problem, Roe v. Wade prohibits states from placing an “undue burden” on an individual seeking an abortion. In requiring court permission for an abortion during a medical emergency in which the minor’s health is threatened an “undue burden” is arguably placed on the “right to choose.”

During Wednesday’s oral arguments, Justice Steven Breyer posed this hypothetical:

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.

He then asked: “What’s supposed to happen?”

If the line of questioning from the justices is any indication of their views on deciding this matter, it appears they may be inclined to uphold the statute with only slight modification:

Justice Anthony M. Kennedy suggested it wouldn’t be difficult to call a judge, but like Roberts he also seemed frustrated that the merits of the judicial bypass provision weren’t tested at the lower court level. ”It seems to me that the bypass procedure can go a long way toward saving this statute but that this was not litigated in the trial courts,” Kennedy said.

Dalven (the attorney for Planned Parenthood of Northern New England) responded that any delay ‘puts the minor’s health at risk.’

Justice Antonin Scalia responded swiftly: Assuming New Hampshire sets up a special office with an ‘abortion judge’ on call, he said, the issue would be moot because ”it takes 30 seconds to place a phone call.’

Chief Justice Roberts “focused his questions on how the case reached the high court before the law was enacted and why opponents want to strike down the entire regulation if the exception is the key issue.”

The Justices can remand this case for further hearing in the lower courts or elect to decide the matter on their own.

Personally, I would not be surprised to see it remanded to give the lower court an opportunity to carve out an exception on its own.