The Ayotte case

The Supreme Court just issued its decision in Ayotte v. Planned Parenthood. It was a rare unanimous abortion decision that avoided the merits of the question presented (i.e., whether NH could require parental notification with no health exception). Instead, the Court focused on the appropriate remedy for a constitutional violation. I think this is much more significant than would have been a ruling on the merits, as the Court's holding will affect all sorts of cases -- not just the narrow question of what sorts of parental notification statutes are permissible. More on that below.

Here's what the Court did, pared down to its essentials:

Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force . . .

It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the required course,” such that a “statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.”

* * *

In this case, the courts below chose the most blunt remedy–permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely. . . . In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. . . . Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.

What is particularly interesting is the Court's reference to what happened in Stenberg v. Carhart, the 2000 decision over a Nebraska partial-birth abortion statute:

That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman’s life. We held Nebraska’s law unconstitutional because it lacked a health exception. 530 U.S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.

This was artfully phrased. The parties in Stenberg did not ask for more finely drawn relief, but an amicus brief filed by Feminists for Life did.

I know this because some classmates and I contributed a portion of that brief that specifically told the Court it should grant "more finely drawn" relief. We argued that “[b]oth the district court and the court of appeals possessed the authority to make the Attorney General’s interpretation binding upon all the parties by enjoining them from enforcing the statute against D&E abortions,” and that “by accepting the proffered narrowing interpretation and declaring that any broader interpretation would be unconstitutional, this Court can prevent arbitrary enforcement.”

Then, as we were sufficiently intrigued to explore the issue further, one of the classmates (Mark Rienzi) and I wrote a lengthy law review article, which appeared in the Utah Law Review in 2002. Our whole point was to argue that federal courts can grant limited injunctions that narrow the scope of a statute.

Mark and I believed that, far from arguing for any novel powers here, we were simply pointing out that federal courts had always had the power to limit the scope of state statutes. At the same time, many federal courts seemed to have forgotten that they could do this. Instead, in many cases, federal courts seemed to assume that it was an all-or-nothing proposition. Either they could strike down the statute entirely, or else they would have to let the whole thing stand.

We thought that this was a false dilemma, because federal courts had always been able to craft a remedy that was in between those two extremes. In traditional "as-applied" adjudication, for example, federal courts have the power to hold that a statute is unconstitutional "as applied" to one or a few circumstances, but not elsewhere. As we pointed out -- and as the Supreme Court finally agreed in Ayotte -- there's nothing to stop a federal court from using that exact same approach even when the plaintiffs say that they're bringing a "facial" challenge (i.e., that they're looking to strike down the law as a whole).

Why is this ruling more important than a merits ruling on parental consent? Well, as Ed Whelan correctly notes, the Court's reasoning in Ayotte is inherently inconsistent with the undue burden standard that was used in Planned Parenthood v. Casey. After all, under Ayotte, if there is any undue burden in sight, the court should try to craft an injunction that reaches those particular circumstances, rather than striking down the entire statutory provision (as Casey did). And the Supreme Court's partial-birth abortion case -- Stenberg v. Carhart -- would definitely have come out differently under the Ayotte standard. Indeed, as noted above, the Court virtually admits this when it points out that no party asked for, and the Court didn't consider, the possibility of more limited relief in that case.

Moreover, there have been dozens of cases over the past decade in which courts have applied the exact same kind of reasoning that the Court struck down in Ayotte. In virtually all of those cases, the end result was an injunction completely invalidating a statute, even though some constitutional applications existed. Ayotte opens the door for state attorneys general to go back to those courts and say that the Supreme Court has stated -- unanimously -- that their all-or-nothing approach is too blunt, and that they need to craft a narrower injunction to allow for at least those applications of the law that are constitutional. The result could be that abortion restrictions across the country -- including those dealing with partial birth abortion, informed consent, parental notification, waiting periods, spousal notification, etc. -- might be brought partially back to life by Ayotte's requirement of "relief more finely drawn."

All the news outlets are calling Ayotte a dodge. But it may turn out to be the biggest abortion decision since Roe itself.