The Bush Administration has mounted a wide-ranging challenge in the Supreme Court to the power of federal judges to stop new anti-abortion laws before they go into effect. In a friend-of-court brief filed Monday in a pending case from New Hampshire, the U.S. Solicitor General has argued that abortion restrictions should be blocked from enforcement only if they are invalid in all possible circumstances — an argument that lower courts have increasingly refused to accept. That is an issue the Supreme Court has never explicitly decided. (A link to the SG’s brief is posted just below.)
The challenge was made in the pending case Ayotte v. Planned Parenthood of Northern New England, et al. (docket 04-1144). The Court has agreed to hear that case, involving a parental notice law for minors seeking abortions, and oral argument is scheduled for Nov. 30. President Bush’s nominee to the Court, Judge John G. Roberts, Jr., probably will be on the Court by then, and could play a significant role in deciding that case — the first abortion regulation law to be heard by the Court in five years.
One of the two issues in the case — a question that may affect virtually all statutes enacted to curb abortions, for adults or for minors — is the standard to be used in judging an initial challenge to an abortion restriction. For years, abortion rights advocates have filed constitutional challenges to such restrictions before they go into effect (through so-called “facial challenges”), claiming that the laws at issue are invalid as written and not as they would be applied individual patient by patient. Such “facial challenges” often have succeeded, so it has become common for such laws simply to never be applied. A challenge based on actual or imminent enforcement of an abortion law probably would take considerably longer, and in some sense would be more difficult.
The success of facial challenges has stirred a new abortion debate, focusing on the standard that challengers must meet against a new law. One side — and the Bush Administration has now lined up anew on that side — argues that such a challenge can succeed only if there is “no set of circumstances” in which a restriction could be legally enforced. That standard derives from a 1987 Supreme Court decision in a criminal case having nothing to do with abortion (U.S. v. Salerno).
In that 6-3 decision, Chief Justice William H. Rehnquist wrote: “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which [a statute] would be valid. The fact that [a statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”
But abortion rights advocates have been arguing that the Supreme Court does not require that kind of proof for a facial challenge against a new abortion restriction. Rather, drawing on reasoning the Court used in 1992 in partially reaffirming Roe v. Wade (the decision in Planned Parenthood of Southeastern Pennsylvania v. Casey ), this side contends that a new curb on abortion is invalid facially if it there is proof it would impose an “undue burden” on “a large fraction” of women affected by the law. This side claims the Supreme Court reaffirmed that standard in its most recent decision nullifying an abortion law, in 2000 (Stenberg v. Carhart ).
In the New Hampshire case now before the Supreme Court, the 1st Circuit court ruled explicitly that the Salerno rule does not apply to facial challenges in the abortion context. In those cases, the “undue burden” standard from Casey has displaced that requirement, the Circuit Court found. That is the opening issue in the state of New Hampshire’s appeal to the Supreme Court.
The Solicitor General, in more explicit terms than it has used in prior abortion cases, argued that the Salerno “no set of circumstances” requirement remains “the default rule” in abortion cases. The Casey decision, it contends, “did not purport to alter the standard for facial challenges in the abortion context generally.”
The Salerno threshold is necessary, the brief says, because of “core limitations on the scope of judicial power.” Federal courts, it adds, quoting an 1885 Supreme Court ruling, have no power “to pronounce any statute void because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.” (The 1885 decision was Liverpool & Philadelphia Steamship Co. v. Commissioners of Emigration.) The “grave and delicate” duty of striking down a law, the briefs goes on, “is not to be exercised with reference to hypothetical cases.”
The government also contends that the Salerno standard makes it easier for courts to judge the validity of abortion laws as written, because they do not have to consider every conceivable situation in which a statute might be found invalid. If a court finds a single valid application of a law, a facial challenge can be denied swiftly, it adds.
Analyzing the Casey decision on this question, the Solicitor General argues that, if the Court there used anything less than the Salerno standard, it did so only with respect to one provision of the state law struck down there– an imposed duty to notify a spouse of a pregnant woman’s plan to seek an abortion. The brief then comments: “Outside the context of spousal-notification provisions, Casey left the law of facial challenges unafffected, and thus the default standard of Salerno applies.”
If a pregnant woman genuinely faces, personally, an emergency health situation because of a new abortion restriction, that patient — or, perhaps, a class of such patients — may go to court in the usual way and ask for a court order against enforcement in that particular circumstance, the Solicitor General suggests.
The second issue in the New Hampshire case is whether the Supreme Court now requires that all abortion restrictions contain an exception where the restriction could harm a woman’s health. On that point, the Solicitor General contends that precedent does not require a general health exception to every abortion law. There is no such “bright-line requirement,” the government contends.
Both points argued by the Solicitor General in the new brief are issues that arise in cases now pending in lower courts on the new federal law banning an abortion procedure that goes by the name (given by its sponsors) “partial birth abortion.”
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