Supreme Court Dispatches

Nibbling Away at Roe v. Wade

For the Supreme Court, Ayotte is an hors d’oeuvre.

What’s wrong with a few unconstitutional applications?

There is an awkward bit of bride’s-side/ groom’s-side stage business to navigate this morning, in bypassing protesters outside the Supreme Court. For some reason, the NOW protesters are blocking the whole right side of the sidewalk, while the anti-abortion demonstrators, mouths sealed with red tape, occupy the left. Nobody seems to want to get too close to the building itself—which has seen some freaky Amityville Horror action of late, including blasted light bulbs at oral argument and the spontaneous hurling of marble chunks onto the plaza.

Once inside, there is no big woolly policy discussion of the competing rights at issue in Ayotte v. Planned Parenthood—the right of a young woman to obtain an abortion versus the right of her parents to know that she is doing so. Instead, the discussion focuses on a flaw—and virtually everyone today concedes it’s a flaw—in New Hampshire’s parental notification law. The statute requires a doctor to notify parents before performing an abortion on a minor, and contains an exception for cases in which the life of the teen is in peril. But it offers no exception when only her health is at risk. There is an option to bypass the parents via a judge, but that’s not completely helpful in medical crises. Prior Supreme Court cases—notably Planned Parenthood v. Casey and Stenberg v. Carhart—have required such a health exception for similar statutes. The question before the court today is a lawyer’s question: What to do about New Hampshire’s flaw?

There’s a second, technical issue in the case. Until now, when the court found that an abortion regulation imposed an “undue burden” on the mother—by requiring, for example, that she notify a spouse before obtaining an abortion—it held the statute unconstitutional “on its face.” That meant the court struck down the law altogether—a broad remedy that’s been rejected in most other contexts. Most of the time, a law can’t be junked altogether unless a plaintiff who has been harmed by it can show that there is “no set of circumstances” in which it could be validly applied. The normal rule is known as the Salerno standard (from the 1987 case United States v. Salerno). If Salerno became the rule in abortion cases—a step the high court has refused to take thus far—then restrictions on abortion would have to be challenged after they’d gone into effect, by plaintiffs facing actual harm. It’s clear today that several justices wouldn’t object to such a switch. Chief Justice John Roberts, for one, plainly rejects the notion of striking down a whole statute because of a few unconstitutional applications. Justice Sandra Day O’Connor sounds almost like she agrees.

Kelly Ayotte, the New Hampshire attorney general, defends her state’s parental notification statute. In her opening sentence, Ayotte characterizes a minor who might seek an abortion as a “child.” Just so you know where her head is at.

Justice David Souter immediately challenges Ayotte on something he’s found in her brief. He waits for her to find the place in the document and read along as he questions her assertion that in the unlikely event a doctor couldn’t obtain parental consent and performed an abortion to protect the health of a minor, that doctor would not be subject to liability because his conduct is “constitutionally protected and independently justified.” Souter asks how the doctor’s conduct would be constitutionally protected. Ayotte doesn’t have an answer. “Doesn’t that mean there’s a constitutional health exception?” asks Souter. His point: How can the doctor be constitutionally protected unless there is a constitutional right to protect? Ayotte replies that the doctor would be protected from liability under a “competing harms doctrine.” Also, her office would be “prepared to issue an opinion” in such cases on the doctor’s behalf. Perhaps a note like the one pinned to Paddington Bear: “Please exempt this doctor from liability.”

Justice Stephen Breyer wants to talk real-life horror stories (click here to listen), like when a pregnant 15-year-old with high blood pressure walks into an emergency room at 2 a.m. on a Saturday. She’s not about to die, but absent an abortion right now she will not bear more children. She refuses to tell her folks. The doctor who sees the girl “doesn’t want to risk prosecution,” says Breyer. “And he happens to have his lawyer with him.” So, what does his lawyer advise? Ayotte cites the competing harms defense. Says Breyer: “But how do you know that’s actually the law? Lots of people say this isn’t a competing harm. Many say in good faith that the life of the fetus is more important than the possibility of the mother having more children.”

Justice Ruth Bader Ginsburg adds that for a doctor whose license is on the line, the prospect of a possible “defense” is pretty cold comfort. The doctor doesn’t want an opinion from the attorney general. He needs to know in advance that he’s not violating the law. Justice Antonin Scalia needs to change the subject fast and he does, advising Ayotte to make her other argument—the one about why courts shouldn’t find entire statutes invalid based on a few unconstitutional applications. This leads Roberts to ask, for the first of many times this morning, whether Ayotte would accept a “pre-enforcement as-applied challenge” to the statute, brought by doctors facing prosecution.

I am sure that “pre-enforcement as-applied challenge” means something. Perhaps that the doctors facing potential prosecution could come forward to challenge the statute as applied to all of them before the cops actually knock on their doors. What I can’t quite figure out is how Roberts’ characterization truly differs from the position of the plaintiffs here. Ginsburg makes this point better than I can (she is talking to Ayotte because she can’t just ask Roberts, at least not until they get behind closed doors): “You characterize this as an ‘as applied’ challenge. But how is it ‘as applied’ if the doctor doesn’t have to wait for an emergency?” Justice John Paul Stevens adds, “Do you have to wait until the doctor has an actual patient in his office?” The nice thing about finding a whole statute unconstitutional up front, as the district court and the 1st Circuit Court of Appeals did in this case, is that doctors needn’t wait for some woman to be bleeding on a gurney before finding out what they are and aren’t allowed to do.

Solicitor General Paul Clement gets 10 minutes to argue on New Hampshire’s side. He says the statute shouldn’t be gutted based on hypothetical health emergencies—which he characterizes as “literally one case in a thousand.” He and Breyer then step all over each other for a while, with Clement curiously refusing to give ground. When Scalia suggests the court should defer to the New Hampshire legislature, Souter notes that what the legislature wanted was clear: It wanted no health exception because that is seen as a big fat loophole. Souter points out that the court should hardly graft it back onto their statute.

Jennifer Dalven has half an hour to argue for Planned Parenthood, and she is in the unenviable position of defending the court’s decision in Casey against attacks from the justices who signed the majority opinion in that case. When she suggests that delays in performing abortions might lead to liver and kidney damage or strokes or infertility, Justice Anthony Kennedy (one-third of the trio that saved the core of Roe v. Wade in Casey) cuts her off to ask whether the time taken by a doctor’s mere “telephone call to a judge” would really lead to all these awful results. Dalven replies that “every minute is critical.”

Dalven says there is no way to reach a judge in Breyer’s hypothetical Saturday morning situation. Kennedy seems unmoved. He says, signaling clearly where he is going in this case, “The judicial bypass provision can go a long way toward saving the statute.” Adds Scalia (click here to listen): “Assume New Hampshire sets up a special office, 24 hours a day, any time anywhere, with an ‘abortion judge’.” Would that solve for these health emergencies? If there’s no time to put in such a call, he quips, the doctor wouldn’t have time to put on his surgical gloves, either.

Dalven wonders what purpose there is in requiring a perfunctory phone call to a judge in which there is no time to ask or answer questions. “The purpose,” answers Kennedy, “is saving the statute.”

“Saving a statute is not worth putting a teenager’s health at risk,” retorts Dalven, raising questions about what hippie-dippy kum-ba-ya law school she attended. What good is a statute, the New Hampshire legislature might ask, that doesn’t panic teenagers and abortion doctors every single day?

The justices keep asking Dalven to “focus” today, as though she were herself some addled teen on Ritalin. O’Connor wants to see New Hampshire’s statute narrowed to include a health exception but not struck down altogether. For some reason, she thinks this is Dalven’s responsibility, asking her to narrow the statute to resolve the health problem. (Click here to listen.) Dalven can’t bring herself to say that the law is invalid on its face because O’Connor took that position in Casey. So Ginsburg does it for her: “Why is it not OK to say the whole statute is unconstitutional when it fails to accommodate immediate threats to the mother’s health?” she asks.

O’Connor and Kennedy aren’t satisfied. Dalven’s best response is that the court shouldn’t let states write patently unconstitutional laws, then figure out ways to rewrite them constitutionally. “You would eliminate any incentive for legislatures to write constitutional laws,” she says. For years the courts have required health exceptions; why should New Hampshire be allowed to ignore that and leave it for women and doctors to go to court? Stevens asked why New Hampshire never tried to fix their law when it was invalidated in the lower courts. Sighs Dalven: “They could have just enacted a law with a health exception and we could have all gone home.”

Just to be clear about what’s happening today: No one is talking about reversing Roe v. Wade. But I can’t count five people willing to apply the holding in Casey to these facts either. Instead most of the court is doing constitutional loop-the-loops to try to save the New Hampshire law, even though they are almost all bothered by the lack of a health exception. Mostly they try to graft a health exception back on, whether or not the New Hampshire legislators wished to have one. The larger point is that New Hampshire nipped and tucked the so-called right to an abortion when it passed this law, and most of the court thinks that is just fine.

This morning we learned that soon-to-be Justice Samuel Alito embraced this nip-tuck strategy years ago. No need to wait for Roe to be overturned. Just eat away at it, one small nibble at a time.