The following commentary is from Teresa Stanton Collett, Counsel for Amici Congressman Ron Paul, Association of American Physicians and Surgeons, Catholic Medical Association, and Christian Medical and Dental Assoction in Gonzales v. Carhart.
Gonzales v. Carthart is a valuable first step in reducing what some commentators have called “abortion distortion†– the Court’s disregard of generally applicable rules of law when the case involves abortion. By noting that the challenges to the Federal Partial Birth Abortion Ban should have been brought by as-applied challenges, and by rejecting the application of the overbreadth doctrine to abortion regulation, the majority opinion begins what may prove to be a long process of restoring both stability and predictability in this corner of constitutional law. Sadly, however, the majority refused to answer the pressing procedural question, “What is the proper standard of review facial challenges of abortion statutes?â€
In 1987 the Court summarized the standard for assessing a pre-implementation facial challenge to a validly enacted statute as, “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenge must establish that no set of circumstances exists under which the Act would be valid.†United States v. Salerno, 481 U.S. 739, 745 (1987). This standard was employed by the Court in two cases related to abortion, Rust v. Sullivan, 500 U.S. 173, 183 (1991) and Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990).
Five years after Salerno, and only one year after Rust, Justices O’Connor, Kennedy and Souter made no reference to the Salerno standard in their review of the Pennsylvania abortion statute. Instead they articulated a new test: plaintiffs challenging abortion statutes must show the provisions create undue burdens on the woman’s right to terminate a pregnancy in a “large fraction” of the cases involving the statute’s applications. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 895 (1992).
In Stenberg v. Carhart, 530 U.S. 914 (2000) Justice Breyer, writing for the majority of the Court, employed yet a third standard of review, “Nebraska has not convinced us that a health exception is ‘never necessary to preserve the health of women.’†Id. at 938. Nowhere in the majority opinion does the Court address the reason for this inversion of the Salerno standard, requiring the state to show that the statute can always be constitutionally applied, instead of requiring the plaintiff to show that “no set of circumstances exists under which the Act would be valid.†See Salerno, 481 U.S. at 745. Similarly absent is any reference to the Casey standard requiring the plaintiff to show that the statute operates unconstitutionally in a “large fraction†of cases. Stenberg, 505 U.S. at 1019-20 (Thomas, J., joined by Rehnquist, C.J. and Scalia, J. dissenting).
Judge Easterbrook has described the dilemma of the lower courts created by the Court’s failure to explain its adoption of a third standard of review for facial challenges to abortion regulations:
Indiana makes much of the fact that its [informed consent for abortion] statute has never been allowed to operate as written. It relies on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), for the proposition that, except in first amendment cases, a law may be held unconstitutional only when “no set of circumstances exists under which the Act would be valid.” Yet in Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), without so much as a mention of Salerno, the Court held invalid, in a pre-enforcement challenge, an abortion statute that might have been construed by the state courts to have at least some proper applications. This leaves us with irreconcilable directives from the Supreme Court. The Justices have insisted that courts lower in the hierarchy apply their precedents unless overruled, even if they seem incompatible with more recent decisions. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). When the Justices themselves disregard rather than overrule a decision–as the majority did in Stenberg, and the plurality did in Casey–they put courts of appeals in a pickle. We cannot follow Salerno without departing from the approach taken in both Stenberg and Casey; yet we cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books.
A Woman’s Choice – E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002), cert. denied, 537 U.S. 1192 (2003).
Prior to Stenberg, the federal courts of appeals were divided over the question of whether Casey modified the Salerno standard. The Fourth and the Fifth Circuits have continued to apply Salerno. Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992), cert. denied, 506 U.S. 1021 (1992) and Greenville Women’s Clinic v. Commissioner, S.C. Dept. of Health and Environmental Control, 317 F.3d 357, 362 (4th Cir. 2002), cert. denied, 538 U.S. 1008 (2003).
Six circuits have applied the “large fraction†test of Casey. See A Woman’s Choice – E. Side Women’s Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002), cert. denied, 537 U.S. 1192 (2003); Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142-43 (3d. Cir. 2000); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025-26 (9th Cir. 1999), amended on denial of reh’g, 193 F.3d 1042 (9th Cir. 1999); Women’s Med. Prof’l Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996), cert. denied, sub nom; Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1456-58 (8th Cir. 1995), cert. denied sub nom.
Notwithstanding the Court of Appeals for the Tenth Circuit’s prior adoption of the Casey standard for review of facial challenges to abortion regulations, that court applied the Stenberg test in its review of the emergency exception to a Colorado parental notice law. “Applying [the Stenberg] standard, if we conclude that the record shows that there is no genuine issue as to the material fact that the PNA will infringe on the ability of any pregnant woman to protect her health, we must hold the statute unconstitutional.†Planned Parenthood of Rocky Mountains Services, Corp. v. Owens, 287 F.3d 910, 919 (10th Cir. 2002) (emphasis in the original). See also Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 923 (9th Cir. 2004).
Similarly, the federal district court for Delaware applied the Stenberg test when reviewing a statute requiring a 24-hour waiting period prior to the performance of an abortion. “[W]hether the statute poses an obstacle to one Delaware woman or thousands does not change the constitutional analysis.†Planned Parenthood of Del. v. Brady, 2003 WL 21383721 (D.Del. 2003).
The analysis employed by the majority in Gonzales v. Carhart clearly evidences rejection of the “obstacle to one woman†test, but the majority’s citation of Rust and Akron applying Salerno to abortion laws, immediately followed by citation of Planned Parenthood v. Casey, will only fuel the debate among lower courts regarding the proper standard of review in cases where facial challenges to abortion statutes are allowed. This uncertainty suggests yet another reason for the courts favoring as-applied challenges in this area.
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