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.

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?

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.

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.

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.

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.

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?

The Court has not severed the statute. It has remanded the question of severability to the lower courts.

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.