Ayotte v. Planned Parenthood of Northern New England
New Hampshire's Parental Notification Prior to Abortion Act, in relevant part, prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minors' death if there is insufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification. Respondents, who provide abortions for pregnant minors and expect to provide emergency abortions for them in the future, filed suit under Rev. Stat. §1979, 42 U.S.C. §1983, claiming that the Act is unconstitutional because it lacks a health exception and because of the inadequacy of the life exception and the judicial bypass' confidentiality provision. The District Court declared the Act unconstitutional and permanently enjoined its enforcement, and the First Circuit affirmed.
Held: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. Pp. 326–332.
(a) As the case comes to this Court, three propositions are established. First, States have the right to require parental involvement when a minor considers terminating her pregnancy. Second, a State may not restrict access to abortions that are "'necessary, in appropriate medical judgment for preservation of the life or health of the mother.'" Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (plurality opinion). Third, New Hampshire has not taken issue with the case's factual basis: In a very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health. New Hampshire has conceded that, under this Court's cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. Pp. 326–328.
[p. 321] (b) Generally speaking, when confronting a statute's constitutional flaw, this Court tries to limit the solution to the problem, preferring to enjoin only the statute’s unconstitutional applications while leaving the others in force, see United States v. Raines, 362 U.S. 17, 20–22, or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U.S. 220, 227–229. Three interrelated principles inform the Court's approach to remedies. First, the Court tries not to nullify more of a legislature's work than is necessary. Second, mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from "rewrit[ing] state law to conform it to constitutional requirements." Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397. Third, the touchstone for any decision about remedy is legislative intent. After finding an application or portion of a statute unconstitutional, the Court must ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally, e. g., Booker, supra, at 227. Here, the courts below chose the most blunt remedy—permanently enjoining the Act's enforcement and thereby invalidating it entirely. They need not have done so. In Stenberg v. Carhart, 530 U.S. 914—where this Court invalidated Nebraska's "partial birth abortion" law in its entirety for lacking a health exception—the parties did not ask for, and this Court did not contemplate, relief more finely drawn, but here New Hampshire asked for and respondents recognized the possibility of a more modest remedy. Only a few applications of the Act would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the Act's unconstitutional application. On remand, they should determine in the first instance whether the legislature intended the statute to be susceptible to such a remedy. Pp. 328–331.
(c) Because an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the Act's life exception, this Court need not pass on the lower courts' alternative holding. If the Act survives in part on remand, the Court of Appeals should address respondents' separate objection to the judicial bypass' confidentiality provision. P. 332.
390 F.3d 53, vacated and remanded.
O'Connor, J., delivered the opinion for a unanimous Court.
Kelly A. Ayotte, Attorney General of New Hampshire, petitioner, argued the cause pro se. With her on the briefs [p. 322] were Michael A. Delaney, Deputy Attorney General, Daniel J. Mullen, Associate Attorney General, and Laura E. B. Lombardi and Anthony I. Blenkinsop, Assistant Attorneys General.
Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Kannon K. Shanmugam, and Marleigh D. Dover.
Jennifer Dalven argued the cause for respondents. With her on the briefs were Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, Diana Kasdan, Lawrence A. Vogelman, and Dara Klassel.[†]
† ^ . Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, R. Ted Cruz, Solicitor General, and Joel L. Thollander, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Mike Beebe of Arkansas, John W. Suthers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Michael A. Cox of Michigan, Jim Hood of Mississippi, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Judith Williams Jagdmann of Virginia, and Patrick J. Crank of Wyoming; for the American Association of Pro Life Obstetricians and Gynecologists et al. by Steven H. Aden; for the American Center for Law and Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, and Walter M. Weber; for the Association of American Physicians & Surgeons et al. by Dorinda C. Bordlee, Nikolas T. Nikas, and James L. Hirsen; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Family Research Council, Inc., et al. by Robert P. George; for the National Legal Foundation by Barry C. Hodge; for New Hampshire Legislators by Teresa Stanton Collett; for the Rutherford Institute by John W. Whitehead and James J. Knicely; for the Thomas More Society by Paul Benjamin Linton and Thomas Brejcha; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Michael F. Moses; for University Faculty for Life by Richard G. Wilkins; for Alaska Lieutenant Governor Loren Leman et al. by Kevin Gilbert Clarkson; for Minnesota Governor Tim Pawlenty et al. by Ms. Collett; for Harlon Reeves by Kelly Shackelford; for Margie Riley et al. by James Joseph Lynch, Jr.; for New Hampshire State Representative Kathleen Souza et al. by Clarke D. Forsythe and Denise M. Burke; and for James P. Weiers et al. by Len L. Munsil.
Briefs of amici curiae urging affirmance were filed for the American College of Obstetricians and Gynecologists et al. by A. Stephen Hut, Jr., and Kimberly A. Parker; for the Center for Adolescent Health & the Law et al. by Elizabeth B. McCallum, Susan Frietsche, and David S. Cohen; for the Center for Reproductive Rights et al. by Sanford M. Cohen, Simon Heller, and Priscilla Smith; for the National Coalition Against Domestic Violence et al. by Maria T. Vullo and Julie Goldscheid; for Organizations Committed to Women’s Equality by Jennifer K. Brown; for the Religious Coalition for Reproductive Choice et al. by Caroline M. Brown; for New Hampshire Governor John H. Lynch by Katherine M. Hanna; and for New Hampshire State Representative Terie Norelli et al. by Kenneth J. Barnes.
Briefs of amici curiae were filed for the Horatio R. Storer Foundation, Inc., by James Bopp, Jr., and Thomas J. Marzen; for the Legal Defense for Unborn Children by Alan Ernest; for Liberty Counsel by Mathew D. Staver, Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister; for NARAL Pro-Choice America Foundation et al. by Elizabeth A. Cavendish, James P. Joseph, and Leslie M. Hill; and for Maureen L. Curley et al. by Philip D. Moran.