Court rules on teen abortion
The Supreme Court on Wednesday gave New Hampshire a new chance to salvage — though in a narrower form — its law requiring that parents be notified if their teenaged daughter is seeking an abortion.
The Court, in a rare unanimous vote in an abortion case, ruled that lower courts may have gone too far in striking down the entire parental notice law, enacted in 2003. Declaring that pregnant teenagers sometimes need an immediate abortion to avert serious health problems, the Court said the New Hampshire law must be read to allow that when it occurs, which it suggested would be “in a very small percentage of cases.”
If the law can be interpreted to make that exception, and still be in keeping with what the state legislature intended, the Court indicated, the remainder of the law may remain intact. The state law, as written, makes an exception for teenagers where an abortion is necessary to save the pregnant girl’s life, but it does not make a health exception.
Justice Sandra Day O’Connor, in what may be her final ruling as a member of the Court, wrote the decision. She summed it up this way in the opening paragraph:
“We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.”
The ruling was noteworthy in a number of respects, in addition to the unanimity: the O’Connor opinion was unusually brief (ten pages in all, only six pages of analysis), it did not clarify whether abortion restrictions must always have a health exception (in non-emergency situations), it did not settle whether abortion laws’ constitutionality will be judged by a different standard than other laws (the so-called “Salerno” issue), and it was the first abortion decision in which Chief Justice John G. Roberts, Jr., cast a vote of any kind — here, silently joining in a single opinion.
In some ways, the opinion seemed to reveal a collective decision by Justices with far different views on abortion to suspend their disagreement until some future occasion, in order to deal with a case that had come increasingly to look as if it were confined to the law for clearcut medical emergencies, instead of being a major test case on the underlying constitutional controversy. By no means, however, did it bridge the existing fundamental disagreements among the Court’s members in this field of law.
Read most broadly, though, the opinion could be understood as laying down a new limit on lower court judges’ authority to issue sweeping decisions that nullify new abortion laws, end to end. It quite clearly calls for a much more discrete, refined review of the ways in which a law might be enforced validly.
If, in fact, that is the way the decision is applied by lower courts in this and other cases, it could amount to a narrowing of abortion rights. That is because it would amount as a legal matter to less reliance upon an individual doctor’s professional judgment in individual cases, especially when the abortion option is not considered in a truly emergency situation, but is only deemed medically advisable for a given patient.
Among the immediate follow-up questions raised by the ruling is whether the opinion will have an immediate effect on the Court’s consideration of a far more controversial abortion law — the federal ban on the procedure that abortion foes refer to as “partial-birth” abortion. Pending now at the Court is the Bush Administration appeal (Gonzalez v. Carhart, 05-380), challenging a federal appeals court ruling striking down that federal ban for lack of a health exception.
Perhaps the Court will now go ahead and grant review of the Carhart case, but it is just as likely that it would opt to send that case back to the Eighth Circuit to weigh whether the nullification of the federal statute in its entirety was necessary, under the remedy principle spelled out Wednesday in the case of Ayotte v. Planned Parenthood of Northern New England (04-1144).
The Court examined the Carhart case at its Conference on Jan. 6, but took no action. It apparently will consider it again at the Conference this Friday. Some action could be announced next Monday, which, incidentally, is likely to be Justice O’Connor’s last day on the bench. (The Senate Judiciary Committee is due to vote on the nomination of her successor, Judge Samuel A. Alito, Jr., next Tuesday, and his ultimate approval by the Senate now seems predictable.)
The Court ruling Wednesday noted that, of the 44 states with laws requiring some parental role on teenage abortions, only New Hampshire and three others make no exception “for minors’ health in an emergency.” The others are Minnesota, Missouri and Wyoming. The Court stressed, as it had before, that states do have the right to require parental involvement. “We cast no doubt” on that in the new ruling, O’Connor wrote.
Such laws, under the Court’s past precedents, must include a parental “bypass,” allowing a pregnant minor to seek approval of a judge for an abortion when bringing in the parents would not be in the girl’s best interests. Such a bypass procedure must be rapid and confidential. The challenge to New Hampshire’s law included a claim that the statute’s judicial bypass does not provide sufficient confidentiality — an issue that the Court said may arise again as the case proceeds further in lower courts.
(UPDATE: One of the comments below says that the preceding paragraph is inaccurate in saying that past precedents require a bypass for a parental notice law (as opposed to a parental consent or veto law, which must have a bypass). The Court’s record in this area is not so clear. In 1990, in Ohio v. Akron Center, the Court said it was leaving that issue open “because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures,” the Ohio notice law at issue contained a bypass procedure meeting the requirements previously laid down for consent laws. Justice Stevens, in a concurring opinion in that case, said it was correct that the issue had not been decided, but he added: “We have, however, squarely held that a requirement of preabortion parental notice in all cases involving pregnant minors is unconstitutional. Although it need not take the form of a judicial bypass, the state must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests.” The footnote in Lambert v. Wicklund (1997) to which the comment refers contains a citation to a Stevens footnote in a 1979 decision (Bellotti v. Baird) and, of course, that was some 11 years prior to Akron. It also might be noted that, in the case decided Wednesday by the Court, involving the New Hampshire law, the First Circuit’s discussion of the bypass issue in the notice context treated the two contexts as indistinguishable. The New Hampshire notice statute did provide a bypass, but the Supreme Court did not pass on that provision. O’Connor’s footnote 1, however, listed state laws requiring “parental involvement (that is, consent or notification) laws,” without distinguishing between the two. The blog, of course, very much appreciates all comments that seek to improve our accuracy. (END UPDATE.)
The most significant part of the O’Connor opinion was its Section III, the three-and-a-half pages of discussion of “the appropriate relief” when a law restricts access to abortion in a way that may “harm women’s health.”
The Court said that, in facing that issue, it was following three principles: nullify no more of an unconstitutional law than is necessary, do not rewrite states laws to make them constitutional, and stay true to the intent of the legislature in passing the law at issue.
While O’Connor wrote that the lower courts in the New Hampshire case “chose the most blunt remedy,” she did not chastise them for doing so. “That is understandable,” she said, “for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw” — the lack of a health exception, in the Nebraska state “partial-birth” law struck down in 2000 in Stenberg v. Carhart.
In the Stenberg case, however, the two sides “did not ask for, and we did not contemplate, relief more finely drawn,” the opinion noted. Here, it added, “we agree with New Hampshire that the lower courts need not have invalidated the [parental notice] law wholesale” but could have crafted a narrower court order.
“Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem,” O’Connor said. “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 unconstitutonal application” — that is, the absence of permission for an immediate abortion when needed “to avert serious and often irreversible damage” to the health of pregnant minors.
The Court conceded that there is a dispute in this case about whether the state legislature intended to have the law understood to allow such an exception. The state insists that a severability clause in the law would allow that narrowing of the sweep of the law, but abortion providers insist that the legislature wanted no health exception at all, even if that meant the entire notice law was invalidated. The Court left it to lower courts to resolve that dispute.
Finally, the Court said, if the state law does survive this further review, the First Circuit should consider the challenge to the confidentiality of the state’s judicial bypass procedure.
It is difficult to take seriously the Court’s fidelity to legislative intent in severing the statute given what it did in Booker.
Comment by Steve — January 18, 2006 @ 10:59 am
So the Chief Justice voted against abortion rights…the obvious question now is: Did he lie or mislead Senator Wyden on this matter too??
Comment by Trusader — January 18, 2006 @ 11:34 am
I don’t take this as a “vote against abortion rights.” Neither did the Justices, apparently, since the decision was unanimous.
As Justice O’Connor noted, “We do not revisit our abortion precedents today.” In his confirmation hearing, Roberts said that the Court’s precedents are entitled to respect. Today’s vote was entirely consistent with that view.
What’s remarkable is O’Connor’s ability to craft a ruling so narrow that none of the other Justices saw the need to comment. I would have expected Scalia and/or Thomas to write a concurrence that said, “Given our precedents, this is the correct ruling; however, I reiterate that I do not believe there is a Constitutional right to an abortion.”
Perhaps they held their tongues to allow Justice O’Connor to get the opinion done in time. They certainly would have been aware that these are her final days on the Court.
Comment by Marc Shepherd — January 18, 2006 @ 12:18 pm
In the Stenberg case, however, the two sides “did not ask for, and we did not contemplate, relief more finely drawn,” the opinion noted.
Stenberg was obviously an activist decision, as Kennedy and Thomas noted then. There was no need for comment from the conservatives now. This ruling retroactively makes Stenberg’s activism clear.
I would note that a judge’s duty to decide cases narrowly is independent of the arguments presented. While it is true that judges cannot over-interpret the arguments presented, judges certainly can under-interpret them. Prudential rules like canons of construction or avoidance doctrines exist to serve those very purposes.
Comment by Commentator — January 18, 2006 @ 1:36 pm
It really seems quite specious, to me, as to whether the legislature intended portions of the statute to be severable – the relevant questions are, are the questioned parts of the statute severable, without rendering law absurd, and if not, should a court just strike them down anyway and let the legislature clean up the mess, or strike down the entire act and let them start from scratch?
Furthermore, isn’t the practical effect of this ruling at least somewhat more expansive than it might appear at first blush? Hitherto, as I understand it, states could enact laws regulating abortion in some manner, but those statutes would be challenged in court the instant they took effect, by groups like Planned Parenthood, enjoined from enforcement in their entirety for the duration of the ensuing process in the Courts, and ultimately, found unconstitional in toto. Today’s ruling, it seems to me, changes the calculus: courts are surely now far less likely to enjoin the enforcement of a statute if the presumption is that it should be found unconstitutional only as applied and in relevant part.
In other words – doesn’t this rather substantially change the environment in which states may enact regulations of abortion, from one in which such actions are mere lip service which will never be enforced, to one in which a state may make and apply reasonable regulations on abortion, even while court procedings are ongoing?
Lastly, doesn’t this ruling pre-empt certain challenges, in that it seems to explicitly condone parental notification laws: “States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely“?
Comment by Simon — January 18, 2006 @ 1:41 pm
Today’s ruling, it seems to me, changes the calculus: courts are surely now far less likely to enjoin the enforcement of a statute if the presumption is that it should be found unconstitutional only as applied and in relevant part.
Exactly, it changes the baseline, and gives lower courts the flexibility to exempt individuals from the operation of the law where a concrete case of injustice exists. But since such cases almost never occur, this ruling acts to keep Planned Parenthood out of court on abstract questions on law and returns dignity to the legislatures that pass these laws and the constituents they represent. The laws stay on the books and in operation for the vast majority of cases.
Comment by Commentator — January 18, 2006 @ 1:46 pm
The last couple of comments seem to read the opinion as adopting the petitioners’ argument against pre-enforcement facial challenges to abortion restrictions. I don’t think you can square that reading with the either the text of the opinion or (less relevantly) the tenor of the oral argument. The Court seems clearly to have staked out a pragmatic middle ground here–allowing for pre-enforcement facial challenges but insisting that courts who find a constitutional violation in a pre-enforcement proceeding craft a remedy that leaves in place as much of the law as is consistent with both the Constitution and legislative intent. Pre-enforcement challenges by the likes of Planned Parenthood will continue to go forward but the fruits of victory for such groups will (at least in some cases be narrower).
Comment by amsiegel — January 18, 2006 @ 1:57 pm
Amsiegel,
I see what you’re saying – i.e. that the Dourt didn’t really foreclose the possibility of facial challenges – but I think it has very strongly suggested that the courts should try to avoid striking down an act in its entirety, whereas hitherto, Courts have been perfectly happy to strike down an abortion regulation in toto. Therefore, it seems to me that this is a sea change in the manner in which abortion cases are henceforth challenged in Courts, insofar as groups such as Planed Parenthood will have to work very much harder to prevent laws going into force; even if they can still challenge that law, doesn’t Ayotte gives lower courts cover to refuse to enjoin the enforcement of an abortion law while litigation is pending?
Comment by Simon — January 18, 2006 @ 2:27 pm
Exactly, Simon. And the net effect will be for Planned Parenthood to bring less court cases of this type…in other words, the ruling serves to keep Planned Parenthood out of court. I think we are being a bit too legal realist for Amsiegel.
Comment by Commentator — January 18, 2006 @ 3:36 pm
I have the following reaction to the understanding of severability anyalysis put forward in Simon’s comment above:
THIS is not the severability test the Court applies, and surely is NOT the one it applies when severing a soverign state’s legislation. The U.S. Supreme Court has no warrant to sever a statute as it sees fit if the state itself did not want the statute severed that way in the event it was declared unconstitutional. I know of at least one case where the U.S Supreme Court (on appeal from a federal court decision challening a state law) came to one conclusion on severability, only to have the State’s highest court reject that severance in a later case presenting the same constitutional challenge, while noting that the State court has the last word on severance. If the 1st Circuit has a procedure whereby it may certify questions of state law to the state’s highest court, it should use that procedure here (and not allow federal courts to tell New Hampshire how its abortion laws should be severed)
Comment by Steve — January 18, 2006 @ 3:51 pm
Steve,
The Court has not severed the statute. It has remanded the question of severability to the lower courts.
Comment by Adamos — January 18, 2006 @ 4:13 pm
“I think we are being a bit too legal realist for Amsiegel.”
It’s been a while since this formalist was called a legal realist, but I think I see what you’re saying…;)
Steve, I didn’t actually put forth a severability test as such (unless you’re questioning my rejection of legislative intent, in which case see this article), I merely suggested that the case raised the question of whether, when presented by a statute that is unconstitutional in part, the Court should wipe an entire statute off the books and let the legislature start again, or strike down only the unconstitutional parts, even if that leaves the statute in textual incoherency for the legislature to remedy (or not) at its discretion. Which of these are you saying “surely is NOT the [test to] appl[y] when severing a soverign state’s legislation,” or do you reject both and propose an alternative that I missed?
Comment by Simon — January 18, 2006 @ 4:15 pm
I should have put legal realist in quotations. I was sneering when I typed it.
Comment by Commentator — January 18, 2006 @ 4:30 pm
Simon,
In answering the way you frame the question presented, I contend that, while federal law addresses how a federal court should treat an as applied vs. facial challenge to a state statute, STATE law answers your question — i.e., whether a federal court should strike down the state law in toto or, rather, strike down only a part. Whatever the federal court does, it has to be justified by the particular state’s (here, New Hampshire’s) severability doctrine, as well as by the effect (if any) of a severability clause (assuming the statute contains one). If applying NH law requires a federal court to strike down only part, then whatever textual incoherency may remain does not require a “fix” from the state legislature because, so long as the federal court did its job (remained faithful to state law), the state legislature should be content with the statute as severed. If it is not, then that is a sign that the legislature’s political composition has changed since the challenged law’s enactment. The main point I was trying to make is that it’s one thing for a federal court to ignore legislative intent when severing an unconstitutional FEDERAL law (e.g., United States v. Booker), but it’s another thing altogether for a federal court to sever a state statute contrary to the severability principles employed by the state in question. That would be a serious encroachment on basic federalism principles; how a federal court severs an otherwise unconstitutional state statute is a question of state law.
Comment by Steve — January 18, 2006 @ 4:59 pm
Any insights into how the Court will dispose of the petition in Gonzales v. Carhart, the pending partial birth case (which was supposed to be in conference on Jan. 6)?
My suspicion is that they will vacate and remand in light of Ayotte. The Ayotte opinion takes great pains to point out that the determinative issue in Ayotte was not raised in Stenberg v. Carhart, the original partial birth case.
Anyone else have any thoughts on this.
Comment by brassband77 — January 18, 2006 @ 5:08 pm
Lyle’s description of parental involvement laws has one inaccuracy that may become important in the lower court. He writes, “Such laws, under the Court’s past precedents, must include a parental “bypass,” allowing a pregnant minor to seek approval of a judge for an abortion when bringing in the parents would not be in the girl’s best interests. Such a bypass procedure must be rapid and confidential.”
In fact, the Court has never ruled on the question of whether parental notice laws, like New Hampshire’s law, must have a judicial bypass. “This case [does not] determin[e] the constitutionality of a statute which does no more than require notice to the parents, without affording them or any other third party an absolute veto.” Lambert v. Wicklund, 520 U.S. 292, 296 n.3 (1997), citing Bellotti II, 443 U.S. at 654 n.1 (Stevens, J., concurring). If judicial bypass is not required, the degree of confidentiality afforded the proceedings under New Hampshire law would be a matter for the legislature to decide.
Comment by Ladyprof — January 18, 2006 @ 6:26 pm
Justice Stevens’ concurrence in OHIO v. AKRON CENTER aside, the last statement is correct. The need for a bypass regime when notification laws are at stake was never dealt with. It appears to be an open question.
Nonetheless, FN2 in this very case seems to be revealing: “It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” This is the stated purpose for such parental involvement laws.
The footnote seems gratutious in this case if not to imply sometimes bypass is required even for notification. But, the footnote then cites Hodgson, a two parent notification case, following up with a statistic reference abuse of “parents.” The case’s only other note is a listing of statutes. So, it sorta stands out.
Comment by Joe — January 18, 2006 @ 7:53 pm
Steve,
State sovereignty is one thing, but the supremacy clause is quite another, and it seems to me that the standard you articulate would lead to an inconsistent application of Federal constitutional principles. It would seem to me that the best way to respect state sovereignty is to void only the sections of the statute that are actually unconstitutional, even if that leads to sections of the law becoming somewhat incoherent, because the legislature can easily revisit and clear up any remaining problems; however, even if the Cout took a different view, and generally supported throwing out the baby with the bathwater, surely that approach should be applied consistently across the Union? Are there any cases you can point me to which articulate (or even support) this doctrine?
I also disagree – on both a normative and descriptive level – with the idea that, once a court is done ripping the heart out of a statute, the only reason the legislature might revisit the statute is because “the legislature’s political composition has changed since the challenged law’s enactment.” Why would that be the case? If the court strikes down an enactment, for example, as being overly broad, obviously the court has no power to simply re-write the statute in a manner which is Constitutionally valid – it must strike it down as written or uphold it as written (intent be damned, in my view). But in that situation, why on Earth would you suggest that, absent a change in its composition, the state legislature not be able to say to itself, well, if that law was too broad, let’s enact a more narrowly-drawn statute that might stand up to scrutiny?
Comment by Simon — January 19, 2006 @ 3:07 pm
Simon,
I think we’re somewhat talking past each other. But I also think you are wrong on the remedy question. Just because a federal court is charged with deciding whether a state statute is constitutional or not does NOT mean that the question of whether and how to sever the statute is guided by federal law. Rather, it is a question that a is guided by the state law of severability, which a federal court is obligated to apply. There are numerous cases saying that how a federal court severs an unconstitutional state statute is a question of STATE law. See Leavitt v. Jane, 518 U.S. 137, 139 (1996) (per curiam); see also National Advertising Company v. Town of Niagara, 942 F.2d 145 (2d Cir. 1991).
Assuming that the federal court respects the particular state’s severability doctrine and severs the unconstitutional statute properly, then in theory there should be nothing left for the state legislature to do (because the statute as severed by the federal court achieves the result that the State’s citizens, through their representatives, wanted in the first place).
I think that you are conflating a federal court’s right to enjoin a state statute (a federal-law question) with HOW the federal court’s injunction must be drafted. It is that “how” question that Ayotte decided, and it is a question whose answer is dictated by state law since a state statute is at issue.
Thus, I have no quarrel with your last paragraph in theory, except that it appears to assume that a federal court will chop off more than it needs to (under federal remedy law), forcing the state legislature to spring into action and repair what the federal court has done. If courts sever statutes properly, then there ought to be no need for such repair jobs.
Comment by Steve — January 20, 2006 @ 11:14 am
Just to add a couple more cites to my previous two responses: Commonwealth of Pa. Dep’t of Ed. v. The First School, 370 A.2d 702, 707 (Pa. 1977) (“[t]he question whether a state statute is capable of a severable construction is a question of state law, and the United States Supreme Court is bound by our determination on the question of the severability of a state statute.”) People v. Mancuso, 175 N.E. 177, 180 (N.Y. 1931) (“To what extent a severance of good from bad is permissible with a view to the preservation of a statute is a question of construction as to which the courts of the state, and not the federal courts, must speak with ultimate authority.”).
Comment by Steve — January 20, 2006 @ 11:16 am