(An edited transcript of the proceedings at the Supreme Court yesterday follows.)

N.H. Attorney General Kelly Ayotte: The court of appeals struck down New Hampshire's parental notification act on its face based on a potential application of the act that even respondents say may only arise in the smallest fraction of cases. In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional.

New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion. In that rare case, if it does arise where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.

Justice David Souter: I understood your argument to be that given the safeguards such as judicial override, there simply was no . . . need to read the health exception in, that in fact it was taken care of.

The point at which I'm not clear on your position is - occurs in what you've said on page 11 of your yellow brief, if you could get that out. You say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, 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. . . . What do you mean when you say it would be constitutionally protected?

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. And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.

Souter: And if he said, I may not be prosecuted under the Constitution because - what follows "because," in your view?

Ayotte: I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.

Souter: Doesn't that mean because there is a required health exception?

Ayotte: Justice Souter, not that there is 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.

Justice Anthony Kennedy:Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law. Do you mean this act that we're looking at here? Or do you mean the law generally including constitutional protections that this court has proclaimed?

Ayotte: There is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician.

Justice Stephen Breyer: Let's just imagine a real circumstance. A 15-year-old walks in, 2 in the morning on Saturday into the emergency room, and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever. And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child. If I don't, I don't think she's going to die, but she'll never have children.

And he's thinking that. What's supposed to happen? He calls up Pam Pevagoglio or Pam Livingston and there is no answer. It's 2 in the morning and there is one of those things, leave a message, okay? Should I call your parents? No. They don't know I'm pregnant. Now, what's supposed to happen?

Ayotte: Justice Breyer, the physicians in those instances could perform an immediate abortion.

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