Abortion is always a hot-button issue. It is especially so now that Justice O’Connor is retiring and Judge Alito is slated to replace her. As a result of Judge Alito’s dissent in the Third Circuit's decision in Planned Parenthood v. Casey, in which he argued that a spousal-notification provision in a Pennsylvania abortion regulation statute was constitutional, proponents of abortion rights are worried that Judge Alito will be unsympathetic to abortion rights claims. Opponents of abortion rights hope and think he will be just that. It is no wonder, then, that the public is watching intensely as an abortion rights case comes before the Court, for the first time in five years, just about six weeks before Judge Alito is scheduled to begin his confirmation hearings.

Ayotte v. Planned Parenthood of Northern New England, which will be argued tomorrow, asks whether abortion regulation statutes must contain exceptions for when pregnancies threaten a woman's health or life, and if so how narrow those exceptions can be. Perhaps more importantly, the case also raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes. Respondents argue that they should only have to show that the law might endanger the lives or health of some hypothetical women in some hypothetical circumstances; petitioner claims facial challenges should only be allowed if the challenger can show that the law would endanger the lives or health of every pregnant woman, and thus be unconstitutional in every circumstance. Challengers who can only show that a law is dangerous to some women in some circumstances must wait until those circumstances actually arise, and then only have the law declared unconstitutional as applied to them.

Kelly A. Ayotte, Attorney General of New Hampshire, will argue the case for petitioner. Jennifer Dalven will argue the case for respondents. Solicitor General Paul Clement will argue on behalf of the United States as amicus curiae in support of petitioner. The merits briefs for the parties can be found here. The SG's amicus brief can be found here.


The statute under review is New Hampshire's Parental Notification Prior to Abortion Act, which prohibits abortion providers from performing an abortion on an unemancipated minor unless the minor’s parents or guardian have been given at least 48 hours’ notice. There are three exceptions to this rule: no liability will lie if (a) the minor has written confirmation that her parents already know about the abortion; (b) the abortion provider certifies that the abortion is necessary to prevent the minor’s death and that there is insufficient time to provide the required notice; or (c) the minor obtains a court decree authorizing the abortion upon a finding that she is mature and capable of giving consent to the abortion procedure, or that it would be in her best interests not to notify. The Act requires these court proceedings to be confidential, access to the trial and appellate courts to be available to pregnant minors at all times, petitions to be made the courts’ absolute priority, and petitions to be ruled upon within 7 calendar days (appeals are allowed another 7 days).

Respondents challenged the Act under Section 1983, and a district court issued an order holding the Act facially unconstitutional and permanently enjoining its enforcement. Peter Heed, then the Attorney General of New Hampshire, appealed to the First Circuit, which affirmed. That court first considered the standard under which the constitutionality of the Act should be reviewed. Ordinarily, the court noted, state statutes are reviewed under the standard set forth in 1987 in United States v. Salerno, which requires plaintiffs challenging a law as facially invalid to show that “no set of circumstances exists under which the Act would be valid.” The First Circuit declined to adopt the Salerno standard, reading Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart to provide a more stringent standard of review when abortion rights are threatened. Under the Roe-Casey-Stenberg standard, the First Circuit held, a statute is facially unconstitutional if it (a) places an “undue burden” on some women’s exercise of their right to choose abortion, (b) fails to provide an exception when the health of a pregnant woman is threatened by the pregnancy, or (c) fails to provide an exception when the life of a pregnant woman is threatened by the pregnancy.

The First Circuit declared the Act unconstitutional on the latter two grounds. The court found that the Act contained no explicit health exception, and that a hodgepodge of prior New Hampshire laws that might relieve a doctor of liability for performing a health-saving operation did not rescue the Act. Nor did the judicial bypass procedure "“ which, the court found, might take as long as two weeks "“ rescue the Act. The court also found that the Act’s death exception was too narrow, as a physician might not know with certainty within the Act's 48-hour window if a life-saving procedure would be needed. The Act thus forced physicians to choose between gambling with their patients’ lives and facing liability. And since the Act contained no mens rea requirement, it would chill physicians’ decisions to perform life-saving procedures; they might fear a court’s application of a negligence standard, which would lead to post hoc second-guessing of their good-faith medical judgments. Finally, while recognizing that the judicial bypass mechanism might also insufficiently protect a minor’s privacy, thereby placing an undue burden on her right to seek an abortion, the court declined to rule on undue-burden grounds.

Kelly Ayotte, who replaced Peter Heed as New Hampshire Attorney General, petitioned for certiorari, which was granted. The petition was filed over the objections of New Hampshire Governor John Lynch, who later filed his own amicus brief in opposition to the Act.

Though the parties' briefs address the health- and life-exception issues first, the standard of review question is probably the one with the furthest reaching consequences: a victory for petitioner would make it very difficult for challengers of abortion statutes to get those statutes invalidated on their face.

According to Ayotte, the tension between Salerno and Casey is illusory; the latter creates a substantive measure of whether a statute violates someone’s rights (the undue-burden measure), and the former creates a quantitative measure of how pervasive such violations can be before the Constitution is sufficiently offended to warrant facial nullification of a statute (the under-no-circumstances measure). Salerno and Casey can be read together to say an abortion regulation statute is facially unconstitutional only if there is no set of circumstances under which the statute does not create an undue burden (or, with Stenberg and Roe, does not adequately protect the health and life of pregnant mothers). Salerno should be preserved, petitioner contends, because it expresses the long-held value that statutes should only be invalidated insofar as they violate the rights of individuals with actual cases and controversies before the Court; only in the First Amendment context should statutes be invalidated for the effect they might have on third parties (a so-called overbreadth analysis). Extending First Amendment overbreadth analysis to the abortion context is unnecessary since abortion rights are not as crucial to free and open government as free speech rights (that is, First Amendment violations are unique because they harm society as a whole by robbing it of a point of view), and because such analysis impermissibly interferes with state policymaking. Alternatively, petitioner asks the Court to enforce the “severability” clause of the Act, and only declare unconstitutional those portions of the Act that are unconstitutional as applied to challengers of the Act.

Respondents claim that to forbid preemptive facial challenges like the one made here would force pregnant minors to wait until their health is actually jeopardized by the Act before challenging it. It would also force each pregnant minor whose health might be threatened by the Act to challenge it on a case-by-case, as-applied basis, thus generating unneeded and redundant litigation. This would force challengers to face unsafe and undue delay in getting an emergency abortion, put their health and lives at risk, and perhaps deter them from exercising their right to seek abortions at all. (Placing pregnant minors in such a position is also inconsistent with Court precedent: respondents cite Thornburgh v. ACOG as a case where the Court did not wait until a woman was actually placed in danger to allow a challenge to a requirement that might delay an emergency abortion). Facial invalidation, however, does not require any minor actually to face health threats before challenging, does not force piecemeal and redundant litigation, and does not force women either to choose between facing embarrassing and arduous court battles and exercising their well-established right to get an abortion.

Respondents also argue that as-applied relief would lead to separation of powers problems, as both as-applied invalidation and the “severing” of any provision deemed unconstitutional as applied to an individual litigant would require courts essentially to write health exceptions into the statute and cross the barrier separating the legislature and judiciary. (There would presumably be federalism concerns as well because federal courts would often be called upon to rewrite state laws.) This would remove political accountability from the legislature and allow it to pass perhaps politically popular abortion regulation statutes that are facially unconstitutional in the hopes the federal courts will do the dirty work of making them constitutional.

Petitioner acknowledges that one reading of Casey does establish an overbreadth analysis that might replace the Salerno standard in some situations. In invalidating Pennsylvania’s spousal notification statute, the Court indicated that, if a statute might create an undue burden on a “large fraction” of women, it could be facially unconstitutional. Given the evidence that a “large fraction” of women might be subject to abusive spouses who would effectively veto their decision to get abortions, the spousal notification provision was unconstitutional. However, petitioner argues that the “large fraction” test should be limited to spousal notification statutes, or at least cases in which there is record evidence that a “large fraction” of women are affected. In any event, the test does not apply here: the Act’s many safety valves ensure that the health of all pregnant minors will be protected; respondents do not identify any fraction of women whose health would be jeopardized by the act; and there is no evidence that emergency abortions are sometimes necessary to preserve the health of the mother.

Respondents counter that the record establishes that cases in which a pregnant woman may need an emergency abortion can and do arise. Salerno was in part animated by the concern that constitutional decisions should be informed by concrete facts, which are present here. Nor are the other concerns animating Salerno present. The Court is not preventing other coordinate branches of government from construing the Act in a constitutional way, since there is no way to do so; and the Court is not prohibiting the state legislature from regulating abortions in a constitutional way. New Hampshire has plenty of models of constitutional parental notification statutes it can follow. (Casey, after all, upheld Pennsylvania's parental notification statute).

In addition to the standard of review question, the Court will also be called upon to decide if the Act actually does violate the Constitution because it contains inadequate exceptions for health- and life-threatening pregnancies. The parties first disagree about whether Supreme Court precedent actually establishes a per se requirement that abortion statutes contain a health exception. Respondents claim Stenberg squarely holds as much. Petitioner claims Stenberg is very narrow and holds that such exceptions are only required when a statute might actually cause a health risk to pregnant women; indeed, in Hodgson v. Minnesota the Supreme Court upheld a parental notification statute without an explicit health exception.

The main disagreement among the parties on this issue, however, tends to boil down to how the parties predict the Act will play out when the health or lives of pregnant minors are threatened by pregnancy complications. Petitioner argues that pregnant minors can obtain emergency abortions without significant delay; respondents argue that despite the letter of the law and its intention not to harm pregnant minors, in reality the Act's effect will be to jeopardize their health and lives.

Petitioner argues that the Act’s judicial bypass mechanism is an adequate substitute for an explicit exception and protects the health and lives of pregnant minors. Petitioner contends that the First Circuit’s finding that the mechanism might take up to two weeks is an unrealistic view of how the bypass procedure is supposed to and (given the experience of other states with similar statutes) will work. In particular, petitioner points to the provisions in the Act requiring the New Hampshire courts to be continuously open to minors seeking bypass orders, and requiring that courts make these orders their priority and rule on them expeditiously. According to respondents, however, in reality judges will be difficult for a minor to find outside of regular court hours. The New Hampshire courts are open only during business hours; and neither the Act nor the court’s information resources provide information on how to access a judge outside of business hours. In practice, the judicial bypass procedure will not cure the Act’s lack of a health exception; indeed it exacerbates it by imposing delay in emergency situations.

In defending against the life-exception challenge, petitioner first contends that the First Circuit erred in invalidating the law on the grounds that it contains no mens rea requirement. The First Circuit should have given New Hampshire the opportunity to interpret the Act first, and given the Supreme Court’s clear precedents, there is “no reason to think” the New Hampshire courts would not read the Act to protect physicians’ good faith medical judgments. Respondents counter that the New Hampshire courts had already indicated that a physician’s judgment would be interpreted under both a good-faith standard and an objective reasonableness standard. Petitioner second argues that the judicial bypass mechanism will ensure quick resolution of uncertainties and so relieves physicians of the need to “gamble” with patients’ lives in the 48-hour window. Respondents continue to argue that the bypass mechanism is not sufficient to ensure quick resolution of claims, and physicians under time pressure will be chilled from making good-faith judgments to perform emergency life-saving abortions.

The Solicitor General's amicus brief in support of petitioner is motivated by the government's desire to see the federal Partial-Birth Abortion Ban Act upheld when the Court hears a facial challenge to it (which it might do this term if it grants certiorari in Carhart v. Gonzales). The federal law, like the New Hampshire law, contains no health exception. It is based in part on Congressional findings that partial-birth abortions are never needed to save the health of a pregnant woman. The SG's brief mainly reemphasizes petitioner's arguments that Stenberg does not create a per se health exception requirement; that Casey did not alter the Salerno standard; that the Casey "large fraction" test is meant to apply to spousal notification statutes only; and that respondents' facial challenge should fail because they have failed to show that the Act actually will endanger pregnant women.

The fate of New Hampshire’s statute and the Salerno standard in abortion statute contexts may be determined by how quickly the justices resolve this case. If the Court splits down ideological lines, as is predicted, with Justice O’Connor as the deciding vote in favor of respondents, then respondents might taste victory only if an opinion is delivered before Judge Alito’s confirmation. If the opinion is delivered after Justice O’Connor’s retirement becomes effective, the case will probably have to be reargued with a likely-Justice Alito voting instead.

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