What's at Stake in the Roberts Court's First Abortion Case: Surprisingly Little

By MICHAEL C. DORF

Monday, Dec. 05, 2005

Last week, the Roberts Court heard oral argument in its first abortion case, Ayotte v. Planned Parenthood. The big news was that--despite the Court's change in personnel --the case will not likely result in any profound change in its abortion jurisprudence.

The Court took the unusual step of releasing an audio recording the same day as the argument (still available via C-SPAN). But listeners who tuned in expecting to hear a debate about when life begins were undoubtedly disappointed.

Nonetheless, as I explain below, Ayotte raises an interesting question about what kind of remedy a court should order when a law that is clearly unconstitutional but only in one relatively small respect.

What Isn't Hotly Contested

The case is a constitutional challenge to a New Hampshire statute that forbids a doctor from performing an abortion on a minor, unless she has provided her parent or guardian with written notice of her intention at least 48 hours in advance. (Full disclosure: I played a small advisory role for the plaintiffs' attorneys in the case).

During the course of the argument, it became clear that the parties and, for the most part, the Justices themselves, agree on what the Constitution requires when states pass such a law.

First, a minor who is afraid to, or otherwise does not want to, notify her parents must be given an opportunity to persuade a judge that she is mature enough to make the decision on her own or, if she is not, that the abortion is in her best interest. The cases call this the requirement of a "judicial bypass." New Hampshire's law has just such a bypass, so that requirement is not at issue here.

Second, in the event of a life- or health-threatening medical emergency, state law must permit a doctor to perform the abortion without the delay that parental notification would entail. The New Hampshire statue contains an exception for life-threatening emergencies, but none for health emergencies--even serious ones--that are not life threatening. Yet it is undisputed that such health-threatening-but-not-life-threatening emergencies do arise: Pregnancy complications can require an immediate abortion to prevent loss of kidney function, or complete loss of the future ability to bear children.

The omission of the health emergency exception was not an oversight: Such an exception was proposed but voted down in the legislature by the law's supporters. Although they must have recognized that omitting the health emergency exception would jeopardize the law's validity, they worried, as many pro-life activists worry, that a health exception would undermine the law--effectively resulting in abortion on demand for minors, because of what they regard as the indeterminacy of the term "health."

Despite this seemingly clear decision by the New Hampshire legislature, Attorney General Kelly Ayotte gamely argued that the law really does contain an emergency health exception: In an emergency, she said, a minor and her doctor could use the judicial bypass, asking a judge to rule that the abortion was in her best interest.

Justice Scalia appeared receptive to this argument, offering that New Hampshire could have an "abortion judge" on call by telephone 24 hours per day. But Planned Parenthood's attorney Jennifer Dalven had an effective response: In an emergency in which every second counts, even the time it takes to make a phone call can risk the patient's health.

Moreover, she explained, if the judge is to do anything other than immediately rubber-stamp the doctor's determination that an immediate abortion is medically necessary, he or she will need at least a few minutes to have the circumstances described. And if, by contrast, the judge will just rubber-stamp the doctor's judgment, then the judicial bypass is a pointless exercise.

Attorney General Ayotte also argued that even if the judicial bypass could not be treated as an effective health emergency exception, a wholly separate provision of New Hampshire law could. Like most states, New Hampshire recognizes a defense of "competing harms": When a person takes action in technical violation of the law, he or she can justify that action on the ground that it was urgently necessary to avert a competing harm. The Attorney General's office, Ayotte offered, could instruct state prosecutors not to pursue cases against doctors performing abortions in health emergencies under the doctrine of competing harms.

This argument did not appear to have much traction with the Justices, who were concerned that such a move by the Attorney General would not protect a doctor from a private lawsuit by the parents of a minor who received an ostensibly health-emergency abortion without prior notice from their daughter. Moreover, as Justice Ginsburg explained, a potential defense to criminal or civil liability is at best uncertain protection for a doctor, who needs to be able to exercise medical judgment without the interference of concerns about legal ramifications.

Finally, ordinary principles of statutory construction cut against the arguments pressed by Attorney General Ayotte. The statute quite clearly contains an exception for life-threatening emergencies, and thus under the maxim of inclusio unius est exclusio alterius (the inclusion of one is the exclusion of the other), it can be inferred that it does not contain or permit an implicit health exception.

In sum, it seems likely that the Court will find that the New Hampshire statute lacks the constitutionally-required health exception. The contested question is what the Court should do in light of that finding.

What Is Contested in Ayotte v. Planned Parenthood: The Remedy

What should the Court do with a law that, like New Hampshire's, passes muster in nearly all of its applications but is blatantly unconstitutional in one set of rare but tragic circumstances? Although statements Justices make during oral arguments do not always provide a reliable basis for predicting how they will ultimately vote, here too there seems to be surprisingly little disagreement.

On the Court, there is a long-simmering debate over the proper standard for adjudicating a challenge to a law "on its face" --that is to say, outside the context of any particular set of facts.

Some Justices believe that except in First Amendment cases, the "Salerno" test applies. Named for the 1987 case of United States v. Salerno, the test instructs courts to uphold a law challenged on its face unless the law is invalid in all circumstances.

Everyone agrees that the New Hampshire minor notification law can be constitutionally applied in some--indeed, nearly all--circumstances: those that fall outside the narrow context of health-threatening-but-not-life-threatening medical emergencies. Thus, if the Salerno test applies, then the law should be upheld.

However, other Justices have argued that the Salerno test has not generally been applied to abortion cases. They point most prominently to the Court's 1992 decision in Planned Parenthood v. Casey, in which the controlling opinion announced that abortion regulations would be deemed unconstitutional if they amounted to a "substantial obstacle" to an abortion in a "large fraction" of the circumstances to which they apply.

A law could have some valid applications, and thus satisfy the Salerno test, while still failing the "large fraction" test. So it sometimes matters which test applies. But not, arguably, in the New Hampshire case: Here, the plaintiffs lose under either test, for they concede that health-threatening-but-not-life-threatening emergencies arise very rarely, thus not amounting even to a "large fraction" of the law's applications.

Does that mean that the plaintiffs should lose? No. The large fraction test is not the only alternative to the Salerno test. Indeed, comparing the two is like comparing apples and oranges. The large fraction test implements a substantive rule of constitutional law, whereas Salerno purports to be a rule of procedure, governing when federal courts can invalidate a statute on its face for violating some independently identifiable substantive rule of constitutional law.

The Supreme Court ruled in Casey that any law that operates as a substantial obstacle to a woman's decision to have an abortion in a large fraction of the circumstances in which it has affect is thereby unconstitutional. This means that the provision itself is unconstitutional, even if, in some particular circumstances, it might not operate as a substantial obstacle to choice. Accordingly, the Casey majority saw no need to apply the Salerno test, because its focus was on the challenged provision--there, a husband notification requirement--rather than on any particular application of that provision.

Likewise, in the New Hampshire case, there is a defect in the minor notification provision itself--namely, the absence of a health emergency exception. That is a flaw in the statute as such, notwithstanding the fact that most New Hampshire minors seeking abortions, and even most New Hampshire minors who do not want to notify their parents that they are seeking abortions, are not harmed by the statute's failure to include a health emergency exception.

The defect renders the New Hampshire law facially invalid.

The Remedy Question

The real dispute in the New Hampshire case is about the appropriate remedy. At one extreme, Attorney General Ayotte and the United States, in a friend-of-the-court brief, argue that the federal courts lack the power to issue any relief. Citing Salerno or Casey's "large fraction" language, they say that the proper course is to uphold the law in its entirety, even though that would mean upholding a law that has a clear constitutional defect.

At the other extreme, Planned Parenthood argues that the law must be struck down entirely, even though the vast majority of minors seeking abortions do not face medical emergencies and can thus be constitutionally required either to notify their parents or to seek a judicial bypass.

Neither of these polar positions seems right: A defective law should not stand, nor should a separable partial defect doom an otherwise valid law. Thus, during the oral argument, the Justices pushed both sides towards a compromise.

Under a proposal suggested by Justice Breyer, the New Hampshire law would be held invalid, but only insofar as it fails to contain a health emergency exception. He extracted a grudging concession from Ms. Dalven that her clients would be satisfied with a ruling that New Hampshire could not apply its minor notification law whenever a doctor made a good-faith judgment that an immediate abortion was medically necessary on health grounds. In other cases, however, the law could be applied.

Why did the plaintiffs only grudgingly accept Justice Breyer's proposal? The answer concerns what would likely follow in its wake. In many states, pro-life legislatures would enact maximally restrictive abortion regulations and prohibitions, thus leading to a flood of litigation to enjoin bits and pieces of abortion laws to make them conform with constitutional standards.

This litigation would be burdensome in its own right, but it would also put the courts in the uncomfortable position of having to fashion law out of whole cloth. As Ms. Dalven noted, different states have different constitutionally permissible formulations of the health exception, and a court's choice of some particular health exception would usurp the legislative role.

Indeed, even among the Justices themselves, there seemed to be division about how to write a health emergency exception, as Justice Scalia suggested adding to Justice Breyer's proposal a requirement that the doctor's medical judgment be objectively reasonable.

Accordingly, plaintiffs contended that principles of judicial restraint counsel in favor of invalidating the statute as a whole, and thus in favor of leaving the legislative task of writing a health emergency exception where it rightly belongs: in the state legislature.

The Roberts "Alternative"

Yet principles of judicial restraint also point in the opposite direction. After all, it is more than a little ironic for a court to say that it is respecting the role of the legislature by invalidating an entire statute, rather than just the aspect of the statute that is unconstitutional.

Seizing on a suggestion first raised in the Attorney General's reply brief, Chief Justice Roberts proposed a different compromise. He indicated that the plaintiffs should lose their facial challenge (under either Salerno or the "large fraction" test), but that they should be permitted to file a new lawsuit challenging the New Hampshire law "as applied" to the case of a minor in need of an emergency abortion for her health, but not to save her life.

Because the Court's precedents give doctors legal standing to sue on behalf of their patients in these circumstances, such a lawsuit would not have to await an actual emergency--when it would be too late. Instead, both Attorney General Ayotte and Chief Justice Roberts indicated that there would be no problem with a pre-enforcement, as-applied challenge.

This suggested alternative left Ms. Dalven understandably puzzled, because there appears to be no difference in substance between it and the actual case that Planned Parenthood brought. Both were pre-enforcement, and neither involved an actual minor facing a current emergency. Even the remedy that would follow from the Roberts version of the lawsuit would be identical to the Breyer proposal: The New Hampshire law would be unenforceable only to the extent that it fails to provide a health emergency exception.

Could it be that there really is no substantial disagreement in this case? Are we just so accustomed to lawyers and judges fighting about abortion that we can't recognize agreement when we see it?

Not quite. There is still the powerful objection that the Court ought not to be in the business of writing legislation, as it would need to be, under the Breyer proposal.

But that objection lacks bite here. It's true that often the proper course will be for a court to invalidate a statute as a whole and send the matter back to the legislature. Yet in this case the concern seems misplaced.

Recall that the New Hampshire law already has a life exception. It specifies that the requirement of notice does not apply if "the attending abortion provider certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice."

The Court could readily rule that until the New Hampshire legislature specifies otherwise, the statute must be read as though it included the words "or to protect her health" after "to prevent the minor's death." This would be judicial legislation, it's true, but it would track the New Hampshire legislature's own approach so closely, that it would be the least disruptive move under the circumstances.

So, Attorney General Ayotte, Ms. Dalven, and Supreme Court Justices, what do you say? Can't we all just get along?


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His 2004 book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases. His next book, No Litmus Test: Law and Politics in the Twenty-First Century, will be published by Rowman & Littlefield in March 2006.

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