Narrow and Wide Injunctions

Here's Jack Balkin on the remedies available in the abortion notification case:

The most important moment came during Planned Parenthood's argument when Justice O'Connor said in the exasperated tone that usually indicates which way she is going to come down on a case (at about 5:40 in the second mp3 file): 'What resulted here was the invalidation of the entire statute and all of its applications. . . . So the question you're being asked is how can that be narrowed... The statute may well have a majority of valid applications, and what of our doctrines allow a narrower application. Obviously it's a matter of concern.'

The discussion that followed among the Justices concerned how to remand the case to the 1st Circuit so as to authorize it to issue a narrower injunction that would hold the statute inapplicable to situations where a doctor in good faith believes that there is a medical emergency that gives insufficient time to engage in a judicial bypass of the parental notification requirement. That is, they wanted to know how to send the case back down to keep the statute in place but hold it inapplicable to certain situations. From Justice Breyer's remarks, it looks as if a majority of the Court was warming to the task: Salerno wouldn't apply precisely, but courts in situations like that in Ayotte would be authorized to issue injunctions that got rid of certain applications of a statute while leaving the rest of the statute enforceable. It would be an ad hoc pragmatic sort of doctrine, not quite a full facial challenge, and not quite a traditional as-applied challenge, whose parameters are wildly uncertain, just the sort of thing that Justice O'Connor likes.

Sounds as if someone has been reading a law review article that Mark Rienzi and I published in the Utah Law Review in 2002, which spent nearly 80 pages arguing that federal courts can, and should, be willing to use precisely that sort of limited injunctive relief.