Amicus Curiae Brief — Ayotte v. Planned Parenthood

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

FILED

No. 04-11% ! AUG 4 - 2005

Supreme Court, U.S. |

OFFICE OF THE CLERK |

In The

Supreme Court of the Anited States

KELLY AYOTTE, Attorney General

of the State of New Hampshire,

Petitioner,

PLANNED PARENTHOOD OF

NORTHERN NEW ENGLAND, et ail.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The First Circuit

BRIEF OF AMICI CURIAE NEW HAMPSHIRE

REPRESENTATIVE AND HB 763 SPONSOR

KATHLEEN SOUZA, NEW HAMPSHIRE SENATORS

JOHN S. BARNES, JR., ROBERT K. BOYCE,

ROBERT J. LETOURNEAU, AND SHEILA

ROBERGE, AND NEW HAMPSHIRE

REPRESENTATIVES MICHAEL A. BALBONI,

PETER BATULA, DAVID J. BETTENCOURT, DAVID

L. BUHLMAN, HARRIET E. CADY, PAUL C.

INGBRETSON, DANIEL C. ITSE, ROGERS J.

JOHNSON, PHYLLIS M. KATSAKIORES,

THOMAS J. LANGLAIS, ROBERT J. LLHEUREUX,

PAUL MIRSKI, RICHARD W. MORRIS,

SANDRA J. REEVES, AND ROBERT H. ROWE

IN SUPPORT OF PETITIONER

CLARKE D. FORSYTHE

(Counsel of Record)

DENISE M. BURKE

MAILEE R. SMITH

AMERICANS UNITED FOR LIFE

310 South Peoria Street, Suite 300

Chicago, Illinois 60607

312/492-7234

Counsel for Amici Curiae

August 8, 2005

i ceEEneEnenniieninet

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

Il.

This Court should reaffirm the traditional

facial challenge standard for parental notice

laws because it is consistent with prior case

law and is necessary to protect the States’ rec-

held that a facial challenge could not suc-

ceed unless the statute was “invalid in all

ute is not invalid in all of its applications ...

The courts’ application of the Casey “large

TABLE OF CONTENTS -— Continued

Page

IV. Because of the substantial health risks from

abortion to minors, it is not justifiable to ex-

empt state parental notice laws, like First

Amendment overbreadth, from the traditional

facial challenge standard.................s:csssseeeeeeees 24

STITT cxccsnestcncensiqctesuenconncsntesusecosevecsenussesconscese 28

BI ITITiicsiintiseenseeesscncusnpnenensnnvemnneusqnceeseseensseuaseneeess App. 1

New Hampshire Parental Notice Statute............... App. 1

Minnesota Parental Notice Statute ................cccee00 App. 6

TABLE OF AUTHORITIES

Page

CASES

Akron v. Akron Ctr. for Reprod. Health (Akron I),

462 U.S. 416 (1983) .........ccceceseeeseeeenenees 10, 11, 12, 14, 17

Anderson v. Edwards, 514 U.S. 143 (1995) ........ccccccceeeeeees 4

A Woman’s Choice - East Side Women’s Clinic v.

Newman, 305 F.3d 684 (7th Cir. 2002)...........:ccceeeeeeeees 21

Barnes v. Miss., 992 F.2d 1335 (5th Cir. 1993) .............0++ 19

Bellotti v. Baird, 443 U.S. 622 (1979) ..........ccccceeeeeeeees 10, 11

Broadrick v. Okla., 413 U.S. 601 (1973) ..........cccceeeeee 26, 27

Brockett v. Spokane Arcades, Inc., 472 U.S. 491

CII a ccscocsenccssensncstncdossnennnaatenemneasentnenesentennancesintenes 4,5, 7

Causeway Med. Suite v. Ieyoub, 109 F.3d 1096 (5th

eee 21

Colautti v. Franklin, 439 U.S. 379 (1979)........:cccccceeeeeeeees 12

Gooding v. Wilson, 405 U.S. 518 (1972) .........ccceceeeeeeeeeees 26

Greenville Women’s Clinic v. Bryant, 222 F.3d 157

7 OT SEE 20

Grutter v. Bollinger, 539 U.S. 306 (2003) .............cceeeeeees 16

HL. v. Matheson, 450 U.S. 398 (1981)............:cccceeee 2, 9, 10

Hodgson v. Minn., 497 U.S. 417 (1990).........cceereeeees passim

Hoffman Estates v. The Flipside, Hoffman Estates,

Inc., 455 U.S. 489 (1982) ........ccccccccccseceeeereeeeeeereeeennenees 6, 8

Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996) ....... 20

TABLE OF AUTHORITIES -— Continued

Page

Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah

1992), aff’d in part & rev'd in part on other

grounds, 61 F.3d 1493 (10th Cir. 1995)...................00008. 22

Janklow v. Planned Parenthood, 517 U.S. 1174

UT srecrntnccinncntninstinanebdiehinatadeiinaiiaientantiatiiaiaitiaeiatatiiitneneaiill 20

Kolender v. Lawson, 461 U.S. 352 (1983) ...............cccceceeeeee 8

Liverpool, N.Y. & Philadelphia S.S. Co. v. Comm’r

of Emigration, 113 U.S. 33 (1885) .................cccceceeeeeeeeeees 7

Loeb v. Columbia Township Tr., 179 U.S. 472 (1900).......... 4

Manning v. Hunt, 119 F.3d 254 (4th Cir. 1997).......... 20, 27

Marbury v. Madison, 5 U.S. 137 (1803)................ccccce000 4,5

Members of City Council v. Taxpayers for Vincent,

ee Ce tarciententnnnitnnicnnnencennniisecinsieteniiies 6, 12

Missouri Rate Cases, 230 U.S. 474 (1913) .0.........:ccccccceeeeeee 4

Ohio v. Akron Ctr. for Reprod. Health (Akron ID),

ae ae I Prentnctesneteninanestnianionuens 8, 9,10, 17,18

Planned Parenthood v. Ashcroft, 462 U.S. 476

Fira aa incnsientcntsntenninctaatutinidnsncesiiniadiuinmaiiddimesiansiniimmaaaaitiis 11

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ....passim

Planned Parenthood v. Danforth, 428 U.S. 52

See Maciieichasipaniciiesibincetetiiietatteitatsinmat tht aaah ce Sal iS]

Planned Parenthood v. Heed, 390 F.3d 53 (1st Cir.

I cccieetiaactaaninrin eminence ae a al 15, 16

Planned Parenthood v. Lawall, 193 F.3d 1042 (9th

SR inescceaeicitinieiinialairiae iit a 20

Planned Parenthood v. Miller, 63 F.3d 1452 (8th

SP GUID cconcescnscasennesensessssnsenenerenientnsheenienpemmnmnetnnnaaen 20

TABLE OF AUTHORITIES -— Continued

Page

Planned Parenthood v. Owens, 287 F.3d 910 (10th

ll ee 14

Planned Parenthood v. Wasden, 376 F.3d 908 (9th

eee ee 21

Roe v. Wade, 410 U.S. 113 (19738) ..........ccccccceeeeeeeees 11, 14, 17

Rust v. Sullivan, 500 U.S. 173 (1991)..............cccccceeeeees 8,17

Sable Communications of Ca., Inc. v. FCC, 492 U.S.

BR CD cccecstcccscssscccssntbascnennentesentmmenstanmmemnnnmninnanianes 9

Schaumburg v. Citizens for Better Env't, 444 U.S.

BD Ce cancincussncsccserecnsssnsscsentiinteccesscntmmantstsnassenimmenniaiia 7

Secretary of State of Md. v. Joseph H. Munson Co.,

Inc., 467 U.S. 947 (1984) ............ccccceeccereesseeeenees 5, 6, 7, 27

Singleton v. Wulff, 428 U.S. 106 (1976) ............cccecceeeeeeees 26

Stenberg v. Carhart, 530 U.S. 914 (2000)................. _passim

Thornburgh v. Am. Coll. of Obstetricians & Gyne-

cologists, 476 U.S. 747 (1986)...........cc-eeeees 10, 14, 16, 17

United States v. Am. Library Ass’n, 539 U.S. 194

CRI... ncoccsscsensessmncctiinccnmmtennstttitniemeiiniamaiabiaeaienmaes 9

United States v. Raines, 362 U.S. 17 (1960) .............ccccceeeee 7

United States v. Salerno, 481 U.S. 739 (1987).......... passim

Webster v. Reprod. Health Serv., 492 U.S. 490

CRITI. <sccnccscnsensansiatnsncsnnatapneacisinmatiiadininibemmedueniuamadiial 8,17

Younger v. Harris, 401 U.S. 37 (1971)..........0:cccceeeeeneeeeeenenes 6

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

C.V. Anath et al., The Association of Placenta

Previa with History of Cesarean Delivery and

Abortion: A Meta-analysis, 177 AM. J. OBST. GYN.

| 24

PY. Ancel et al., History of Induced Abortion as a

Risk Factor for Preterm Birth in European Coun-

tries: Results of the EUROPOP Survey, 19(3])

HUMAN REPROD. 734 (Mar. 2004) ...........ccccceesceeeeeeeeeeeees 24

PK. Coleman et al., State-Funded Abortions Versus

Deliveries: A Comparison of Outpatient Mental

Health Claims Over Four Years, 721] AM. J. Or-

THOPSYCHIATRY 141 (Jan. 2002)..............cccccceeeseeeeeeeeeeees 24

PK. Coleman et al., Substance Use Among Preg-

nant Women in the Context of Previous Reproduc-

tive Loss and Desire for Current Pregnancy, 10(2)

Brit. J. HEALTH PSYCHOLOGY 255 (May 2005).............. 25

A. Conde-Agudelo et al., Effect of the Interpreg-

nancy Interval after an Abortion on Maternal and

Perinatal Health in Latin America, 89 INTL J.

Gyn. OBsT. S34 (Supp. Apr. 2005)............:ccccseeeeeeeeeeeees 24

Jesse Cougle et al., Depression Associated with

Abortion and Childbirth: A Long-Term Analysis

of the NLSY Cohort, 9[4) MED. Sci. MONITOR

Ee 24

J.R. Daling et al., Risk of Breast Cancer Among

Young Women: Relationship to Induced Abortion,

86[21] J. NaT’L CANCER INST. 1584 (Nov. 2, 1994) ........ 25

Vii

TABLE OF AUTHORITIES -— Continued

Michael C. Dorf, Facial Challenges to State &

Federal Statutes, 46 STAN. L. REV. 235 (1994).............0++ 8

M. Gissler et al., Suicides After Pregnancy in

Finland, 1987-1994: Register Linkage Study,

313[7070] Brit. MED. J. 1431 (Dec. 7, 1996)..............++ 25

J. Gold & W. Cates, Jr., Restriction of Federal

Funds for Abortion: 18 Months Later, 69 Am. J.

PUB. HEALTH 929 (1979) ..........cssccsssssssssescesseeseeeeeneeeeenees 22

M.S. Hendricks et al., Previous Cesarean Section

and Abortion as Risk Factors for Developing Pla-

centa Previa, 25(2] J. OBst. GYN. Res. 137 (Apr.

BID ceccccersensesrecssenecsntstsiesenpensememnnttemensmenmentemenesintn 24

Kevin Martin, Note, Stranger in a Strange Land:

The Use of Overbreadth in Abortion Jurispru-

dence, 99 COLUM. L. REV. 173 (1999) .........:ccccceseeeeeeeeees 8

C. Moreau et al., Previous Induced Abortions and

the Risk of Very Preterm Delivery: Results of the

EPIPAGE Study, 112(4] Brit. J. Opst. Gyn. 430

(Ape. 2005) .........:ssscerresssecsosccsovcrensensseosecsssnssensssssoossonsoes 24

D.B. Petitti & W. Cates, Jr., Restricting Medicaid

Funds for Abortions: Projections of Excess Mor-

tality for Women of Childbearing Age, 67 AM. J.

PUB. HEALTH 860 (1977) ........cccccccceseseeserereeeseeeeeteeeenennes 22

James Rogers et al., Impact of the Minnesota

Parental Notification Law on Abortion and Birth,

81 AM. J. PUB. HEALTH 294 (1991) .........:cccccceceeeeeeeneenes 19

Brent Rooney & Byron C. Calhoun, Induced Abor-

tion and Risk of Later Premature Births, 8(2) J.

AM. PHYSICIANS & SURGEONS 46 (Summer 2003) ......... 24

TABLE OF AUTHORITIES - Continued

V.M. Taylor et al., Placenta Previa in Relation to

Induced and Spontaneous Abortion: A Popula-

tion-Based Study, 82 OpsT. & GYN. 88 (1993) .............. 24

John M. Thorp et al., Long-Term Physical and

Psychological Health Consequences of Induced

Abortion: Review of the Evidence, 58{1] OBST.

GYN. SURVEY 67 (Jan. 2008) ..........cccccssserreesereeeeeeees 24, 25

INTEREST OF AMICI CURIAE'

Amici, as New Hampshire Senators and Representa-

tives, have a unique interest in the outcome of this case.

On June 19, 2003, the Governor of New Hampshire signed

into law House Bill 763 (HB 763), the parental notice

statute before this Court. Amicus Representative Kathleen

Souza was a sponsor of HB 763 and, as such, maintains a

special interest in the constitutionality of the statute. It

was her intent, as well as the intent of her co-sponsors, to

protect minors against their own immaturity, to foster the

family structure and preserve it as a social unit, and to

protect the rights of parents to rear their children.

Amici Senators John S. Barnes, Jr., Robert K. Boyce,

and Sheila Roberge, along with Representatives Michael

A. Balboni, Peter Batula, David L. Buhlman, Harriet E.

Cady, Paul C. Ingbretson, Daniel C. Itse, Rogers J. John-

son, Phyllis M. Katsakiores, Robert J. L'Heureux, Richard

W. Morris, Sandra J. Reeves, and Robert H. Rowe each

voted in favor of the bill. These Senators and Representa-

tives, along with the nine Senators and 185 Representa-

tives that voted along with them, agreed that the State

has compelling interests in protecting minors and fami-

lies.” Amici Senator Robert Letourneau and Representa-

tives David J. Bettencourt, Thomas J. Langlais, and Paul

' This brief is filed with the written consent of the parties. Letters

of consent have been filed with the Clerk of this Court. No counsel for a

party authored this brief in whole or in part. No entities other than the

Amici or their counsel have made a monetary contribution to the

preparation or submission of this Brief.

* See Appendix at App. 1 for the New Hampshire Legislature's

findings of fact.

Mirski were elected after HB 763 passed, but each affirms

the Legislature’s intent in passing the bill.

Due to the confusion among the courts across the

country and the First Circuit’s use of strict scrutiny in

striking down New Hampshire’s parental notification

statute, Amici are left with nothing to guide them except

speculation in enacting statutes concerning abortion.

Consequently, Amici file this brief on behalf of Petitioner,

urging this Court to reverse the judgment of the lower

court.

SUMMARY OF ARGUMENT

Twenty-four years after this Court first upheld a

parental notice statute and rejected an as-applied chal-

lenge in H.L. v. Matheson, 450 U.S. 398 (1981), the Court

is once again faced with an overreaching federal court

decision striking down a substantially similar parental

notice law. Central to this Court’s decision is the proper

standard of review to apply in the facial challenge to the

parental notice statute. In a long line of cases prior to

United States v. Salerno, 481 U.S. 739 (1987), this Court

defined a statute as facially invalid only if it was “invalid

in all its applications.”

This Court has repeatedly emphasized that the States

possess compelling interests in the protection of minors

and maternal health. Yet despite the Court’s repeated

recognition of such interests, it and the courts below have

applied an analysis tantamount to strict scrutiny in

repeatedly striking down reasonable, common sense laws

that attempted to protect those interests. The First Cir-

cuit’s complete failure to consider New Hampshire’s

interests in the parental notice law demonstrates the

courts’ utilization of the strictest scrutiny in analyzing

such laws.

Furthermore, the standard set forth in Planned

Parenthood v. Casey — that an abortion provision is uncon-

stitutional if, “in a large fraction of the cases [the provi-

sion] will operate as a substantial obstacle” to abortion —

has sown considerable confusion among the lower courts

and state legislatures. 505 U.S. 833, 895 (1992). Due to the

speculative nature of the Casey “large fraction” standard,

plaintiffs are encouraged to rely on speculation, and

federal judges and state lawmakers are left to simply

guess at the constitutionality of a regulation.

Finally, the substantial health risks to minors render

it unjustifiable to exempt state parental notice laws from

the traditional facial challenge standard. In this context,

the overbreadth doctrine would undermine thorough

review of such facial challenges and would eviscerate the

States’ compelling interests.

Because the traditional facial challenge standard is

consistent with prior case law and is necessary to protect

the compelling interests that this Court has itself identi-

fied, the Court should reaffirm the traditional facial

challenge standard. As the New Hampshire law is not

invalid in all its applications, the Court should reverse the

lower court’s decision.

ARGUMENT

I. THIS COURT SHOULD REAFFIRM THE TRA-

DITIONAL FACIAL CHALLENGE STANDARD

FOR PARENTAL NOTICE LAWS BECAUSE IT

IS CONSISTENT WITH PRIOR CASE LAW AND

IS NECESSARY TO PROTECT THE STATES’

RECOGI IZED COMPELLING INTERESTS.

A. Before Salerno, the Court traditionally

held that a facial challenge could not suc-

ceed unless the statute was “invalid in all

its applications.”

In United States v. Salerno, the Court articulated the

following standard of review for facial challenges:

A facial challenge to a legislative Act is, of course,

the most difficult challenge to mount success-

fully, since the challenger must establish that no

set of circumstances exists under which the Act

would be valid. The fact that the [Act] might op-

erate unconstitutionally under sume conceivable

set of circumstances is insufficient to render it

wholly invalid, since we have not recognized an

“overbreadth” doctrine outside the limited con-

text of the First Amendment.

Salerno, 481 U.S. 739, 745 (1987). This Court and its

Justices have used the following various terms to refer to a

facially invalid statute: “void,” “void on its face,” “invalid

in toto,” or, as in Marbury v. Madison, “repugnant to the

Constitution.” In other words, a facial challenge attacks a

* A unanimous Supreme Court relied on Salerno in Anderson uv.

Edwards. 514 U.S. 143, 155 n.6 (1995).

* See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 495 n.5

(1985); Missouri Rate Cases, 230 U.S. 474, 508-09 (1913); Loeb v.

(Continued on following page)

statute “in toto” and makes it utterly inoperative, neces-

sarily implying that there can be no constitutional applica-

tion.

Prior to Salerno, the phrase commonly used by this

Court in explaining this standard was “invalid in all its

applications.” For example, in Brockett v. Spokane Ar-

cades, Inc., the Court stated, “we are unconvinced that the

identified overbreadth is incurable and would taint all

possible applications of the statute. ...” Brockett, 472

U.S. at 504 (emphasis added). The court concluded that

there was “no satisfactory ground for striking the statute

down in its entirety because of invalidity in all of its

applications.” Id. at 505 (emphasis added).

In Secretary of State of Maryland v. Joseph H. Munson

Co., Inc., the Court pervasively used the “in all its applica-

tions” language. 467 U.S. 947 (1984). The Court concluded

that the flaw in the statute was not that it included some

impermissible applications, but that “in all its applica-

tions” it operated on a fundamentally mistaken premise.

Id. at 966 (emphasis added). The Court also noted that the

doctrine of “overbreadth” has been used to describe “a

challenge to a statute that in all its applications di-

rectly restrict[s] protected First Amendment activity.” Id.

at 966 n.13 (emphasis added).

Columbia Township Tr., 179 U.S. 472, 477-80, 490-92 (1900); Marbury v.

Madison, 5 U.S. 137, 177, 180 (1803).

* The Court stated that facial challenges have been upheld in

contexts other than the First Amendment and that, whether a chal-

lenge is lubeled “overbreadth” or simply a “facial challenge,” “the point

is that there is no reason to limit challenges to case-by-case ‘as applied’

challenges when the statute on its face and therefore in all its

(Continued on following page)

That same year, the Court stated in Members of City

Council v. Taxpayers for Vincent that there are two ways

in which a statute may be considered facially invalid:

“either because it is unconstitutional in every conceiv-

able application, or because it seeks to prohibit such a

broad range of protected conduct that it is unconstitution-

ally ‘overbroad.’” Taxpayers for Vincent, 466 U.S. 789, 796

(1984) (emphasis added). The Court added that “a holding

of facial invalidity expresses the conclusion that the

statute could never be applied in a valid manner.” Id.

at 797 (emphasis added). The Court also stated that its

decisions have repeatedly employed facial invalidation

where “every application of the statute created an

impermissible risk of suppression of ideas.” Jd. at 798 n.15

(emphasis added).

Likewise, in Hoffman Estates v. The Flipside, Hoff-

man Estates, Inc., the Court noted that a facial challenge

in the context of overbreadth and vagueness meant that a

statute was “incapable of any valid application.” 455

U.S. 489, 494 n.5 (1982). Thus, to succeed, the complain-

ant must demonstrate that a statute is impermissibly

vague in all of its applications. Id. at 497.°

This “invalid in all its applications” standard is

consistent with at least six corollary rules of constitutional

law. First, no federal court has “jurisdiction to pronounce

applications falls short of constitutional demands.” Munson, 467 U.S.

at 966 n.13 (emphasis added).

* These cases, along with the Salerno standard, must be read

against the backdrop of the Court’s 1971 decision in Younger v. Harris

regarding facial challenges on First Amendment grounds, where Justice

Black acknowledged extreme hesitation in entertaining facial chal-

lenges on any grounds. See Younger, 401 U.S. 37, 52-53 (1971).

any statute ... void, because irreconcilable with the

Constitution, except as it is called upon to adjudge the

legal rights of litigants in actual controversies.” United

States v. Raines, 362 U.S. 17, 21 (1960) (quoting Liverpool,

N.Y. & Philadelphia S.S. Co. v. Comm’r of Emigration, 113

U.S. 33, 39 (1885)). Second, federal courts should never

“anticipate a question of constitutional law in advance of

the necessity of deciding it.” Brockett, 472 U.S. at 501

(quoting Raines, 362 U.S. at 21). Third, a federal court

should never “formulate a rule of constitutional law

broader than is required by the precise facts to which it is

to be applied.” Jd.

Fourth, it is an “elementary principle” that a statute

may be constitutional in part and unconstitutional in part

and, if the constitutional part is independent of the uncon-

stitutional part, the constitutional part may stand, while

only the unconstitutional part is rejected. Jd. at 502. Fifth,

the “one to whom application of a statute is constitutional

will not be heard to attack the statute on the ground that

impliedly it might also be taken as applying to other

persons or other situations in which its application might

be unconstitutional.” Raines, 362 U.S. at 21. This Court

has developed various reasons for this rule, including the

fact that it is undesirable to consider every conceivable

situation which might arise in applying complex and

comprehensive legislation. Id.* Finally, in evaluating a

" The exception to this rule is First Amendment overbreadth. See

Schaumburg v. Citizens for Better Env't, 444 U.S. 620, 634 (1980).

* See also Munson, 467 U.S. at 955 (stating that the rule frees the

Court from unnecessary pronouncements on constitutional issues as

well as from premature interpretations of statutes) (quoting Raines,

362 U.S. at 22).

facial challenge, a court must consider any limiting con-

struction proffered by a state court or enforcement agency.

Kolender v. Lawson, 461 U.S. 352, 355 (1983) (quoting

Flipside, 455 U.S. at 494 n.5). This rule is necessary

because the limiting construction may allow at least one

valid application. Each of these corollary rules of constitu-

tional law reinforces the use of the “invalid in all its

applications” standard {hereinafter “traditional facial

challenge standard”).”

This Court has previously applied the traditional

facial challenge standard in upholding abortion regula-

tions against facial challenges. See Planned Parenthood v.

Casey, 505 U.S. 833, 885-87 (1992) (upholding Pennsyl- ©

vania’s 24-hour waiting period, despite its effect on “some

women”); Rust v. Sullivan, 500 U.S. 173, 183 (1991)

(applying Salerno); Ohio v. Akron Ctr. for Reprod. Health

(Akron IT), 497 U.S. 502, 514 (1990) (“[Blecause appellees

are making a facial challenge to a statute, they must show

that ‘no set of circumstances exists under which the Act

would be valid.’”) (quoting Webster v. Reprod. Health Serv.,

492 U.S. 490, 524 (1989) (O’Connor, J., concurring));

Webster, 492 U.S. at 524 (O’Connor, J., concurring) (quot-

ing Salerno). See also Hodgson v. Minn., 497 U.S. 417,

444-45 (1990) (stating that a statute requiring a minor to

* These six corollary rules, along with the long line of cases

applying the “invalid in all its applications” standard, refute the notion

that individuals, in the abstract, have a “right to be judged by a

constitutionally valid rule of law.” See Michael C. Dorf, Facial Chal-

lenges to State & Federal Statutes, 46 STAN. L. REV. 235, 242 (1994).

Even if one concedes that the Constitution “permits only the application

of constitutional rules,” it begs the question: application to whom and in

what circumstances? See Kevin Martin, Note, Stranger in a Strange

Land: The Use of Overbreadth in Abortion Jurisprudence, 99 COLUM. L.

REV. 173 (1999) (providing a point by point response to the Dorf article).

wait 48 hours after notifying a parent of her intent to get

an abortion would reasonably further a legitimate state

interest). This Court should do so in this case as well.

B. The traditional facial challenge standard is

necessary to protect important and legiti-

mate state interests that this Court has re-

peatedly recognized.

For 32 years, this Court and its individual Justices

have repeatedly stated that the States have important,

even “compelling,” interests in the protection of minors

and the regulation of abortion. In fact, the Court has

unanimously agreed that “there is a compelling interest in

protecting the physical and psychological well-being of

minors.” Sable Communications of Va., Inc. v. FCC, 492

U.S. 115, 126 (1989). See also United States v. Am. Library

Ass’n, 539 U.S. 194, 218 (2003) (Breyer, J., concurring)

(recognizing that protecting minors from harm is a legiti-

mate and often compelling interest).

In H.L. v. Matheson, the Court concluded that a Utah

parental notification statute “serve(d) important state

interests.” Matheson, 450 U.S. 398, 413 (1981). The Court

also stated that the inhibition of some minors from seeking

abortions was not a valid basis to void the statute. Jd.

Justice Stevens noted that Utah’s interest in the welfare of

its young citizens was “fundamental and substantial” and

“justifie[d) a variety of protective measures.” Jd. at 421

(Stevens, J., concurring) (quoting Planned Parenthood v.

Danforth, 428 U.S. 52, 102-03 (1976)) (emphasis added).

Additionally, in an opinion authored by Justice Kennedy,

the Court in Akron II recognized that a State may require

a physician himself to take reasonable steps to notify a

minor’s parent, as a parent will often provide important

medical data and better advice to a minor. Akron II, 497

U.S. at 518-19 (citing Matheson, 450 U.S. at 411).

Justice O’Connor recognized that States have compel-

ling interests in the areas of health and maternal safety

and that these interests are present throughout preg-

nancy. Akron v. Akron Ctr. for Reprod. Health (Akron I),

462 U.S. 416, 459-60 (1983) (O’Connor, J., dissenting); see

also Thornburgh v. Am. Coll. of Obstetricians & Gynecolo-

gists, 476 U.S. 747, 828 (1986) (O’Connor, J., dissenting)

(quoting her dissent in Akron I). Justice O’Connor also

explained that the standard of strict scrutiny is not to be

applied unless there is an undue burden on the pregnant

mother — and that such burdens are only present in

situations “involving absolute obstacles or severe limita-

tions on the abortion decision.” Akron I, 462 U.S. at 462-64

(O’Connor, J., dissenting) (emphasis added); see also

Thornburgh, 476 U.S. at 828-29 (O’Connor, J., dissenting).

Furthermore, the plurality in Casey affirmed the

States’ substantial interest in informing a woman of the

health risks of abortion. Casey, 505 U.S. at 882-83. In fact,

the Court concluded that such interests carry particular

force regarding minors. Jd. at 899 (citing Hodgson, 497

U.S. at 448-49 (stating that a brief waiting period provides

parents with the opportunity to consult family physicians, to

inquire into the competency of a doctor, to discuss the reli-

gious or moral implications of abortion, and to provide

guidance in evaluating the future impact of the abortion

decision)).

In addition, the Court has repeatedly acknowledged

the special immaturity of minors in making the abortion

decision. See, e.g., Bellotti v. Baird, 443 U.S. 622, 634

(1979) (stating that there were three reasons why the

constitutional rights of children cannot be equated with

those of adults: the peculiar vulnerability of children, their

inability to make critical decisions in an informed, mature

manner, and the importance of the parental role in child

rearing). See also id. at 635 (“[M)inors often lack the

experience, perspective, and judgment to recognize and

avoid choices that could be detrimental to them.”).”

Indeed, there is a compelling need to protect minors from

their lack of judgment in choosing abortion providers.

The plurality in Casey concluded that these State

interests had “been given too little acknowledgment and

implementation by the Court” in the cases following Roe v.

Wade. Casey, 505 U.S. at 871 (citing Roe v. Wade, 410 U.S.

113, 162-63 (1973)). Both this Court’s prior use of the

traditional facial challenge standard as well as its contin-

ued support of States’ compelling interests justify use of

the traditional facial challenge standard in the situation

at hand.

C. The New Hampshire parental notice stat-

ute is not invalid in all of its applications.

The New Hampshire parental notice statute is not

invalid in all of its applications for several reasons. First,

abortion is not a fundamental right, and as such the

interest in preventing the chilling of speech in the First

Amendment overbreadth context is not justified in this

* Justice O’Connor also recognized the substantial interest in the

health and welfare of minors. See Akron I, 462 U.S. at 453-54, 454 n.1,

459-60 (O’Connor, J., dissenting); Planned Parenthood v. Ashcroft, 462

U.S. 476, 505 (1983) (O’Connor, J., concurring in part and dissenting in

part).

context." The Court has never referred to abortion as a

fundamental right since it decided Akron I.” In addition,

the plurality in Casey specifically refuted the use of strict

scrutiny analysis in the abortion context. See Casey, 505

U.S. at 870-71.

Second, no vagueness challenge is present here that

might justify an exception to the traditional facial chal-

lenge standard. See generally Colautti v. Franklin, 439

U.S. 379 (1979). Just the opposite is true; the medical

emergency exception in the New Hampshire statute is

challenged as unconstitutionally narrow. Third, this Court

has not previously demanded the Doe “health” exception

for any regulation, but only for a prohibition of abortion.

See, e.g., Carhart, 530 U.S. at 948 (O’Connor, J., concur-

ring) (“[A] postviability proscription of abortion would be

invalid absent a health exception. . . .”) (emphasis added).

Fourth, New Hampshire was entitled to rely on the

“medical emergency” exception in the Minnesota parental

notice statute that this Court upheld in Hodgson v. Minne-

sota. See generally Hodgson, 497 U.S. 417. That statute

provided that notice was not required if “[t)he attending

" See Part IV, infra. Regardless, New Hampshire's statute is

constitutional even under the overbreadth prong mentioned by this

Court in Taxpayers for Vincent, as the statute is not substantially

overbroad. See Taxpayers for Vincent, 466 U.S. at 796 (stating that a

statute may be considered facially invalid if it seeks to prohibit such a

broad range of protected conduct that it is unconstitutionally “over-

broad”); see also infra n.31 & accompanying text.

* The Court never referred to abortion as a fundamental right in

Stenberg v. Carhart. Moreover, Carhurt dealt with a narrow circum-

stance — a direct prohibition of an abortion procedure — and not a

regulation of that procedure. See generally Stenberg v. Carhart, 530

U.S. 914 (2000).

physician certifies ... that the abortion is necessary to

prevent the woman's death and there is insufficient time

to provide the required notice.” Jd. at 426 n.7; see also

Appendix at App. 7. The Respondents present no evidence

that the Minnesota medical emergency exception has had

any negative impact that would be solved by an immediate

abortion in an abortion clinic.

The narrowness of the New Hampshire medical

emergency exception is needed for several reasons.” The

definition acts as a loophole to avoid parental notice; the

precision or breadth of the definition defines the size of

that loophole. In addition, the Doe definition of “health” is

unacceptably broad and would act to destroy the require-

ment of parental notice. Furthermore, the greater the

medical emergency — short of a truly life-threatening

emergency — the greater the need for parental notice,

because it is the custodial parent who will take care of the

minor and be informed about her condition. Finally, none

of the conditions outlined in the affidavit filed by the

abortion provider in this case warrants an immediate

abortion as the proper medical response. Abortion clinics

are not equipped to deal with such urgent conditions, and

any minor would be properly advised to go to an emer-

gency room and not an abortion clinic.

For these reasons, Respondents cannot demonstrate

that the New Hampshire statute is invalid in all its

applications. In fact, Respondents cannot demonstrate

that the statute is invalid in any application.

™ As Justice Kennedy observed in Carhart, “[a] ban which depends

on the ‘appropriate medical judgment’ of Dr. Carhart is no ban at all. .. .

This, of course, is the vice of a health exception resting in the physician’s

discretion.” Carhart, 530 U.S. at 972 (Kennedy, J., dissenting).

Il. THE COURTS *?PLICATION OF THE CASEY

“LARGE FRACTION” STANDARD IS TANTA-

MOUNT TO THE STRICT SCRUTINY THIS

COURT REPUDIATED IN CASEY

Despite this Court’s repeated recognition of States’

interests in the protection of minors and maternal health,

it and the courts below have repeatedly struck down

reasonable, common sense laws that attempted to protect

those interests. Indeed, it was the federal courts’ drastic

use of strict scrutiny in abortion regulation cases that the

Casey plurality found problematic, leading to the overturn-

ing of Akron I and Thornburgh. See Casey, 505 U.S. at 870

(“(W]e must overrule those parts of Thornburgh and Akron

I which ... are inconsistent with Roe’s statement that the

State has a legitimate interest... .”). The plurality upheld

Roe’s “essential holding” that a State has “legitimate

interests from the outset of the pregnancy in protecting

the health of the woman....” Jd. at 846. The plurality

held that the States’ inter »sts had been given too little

acknowledgment and implementation by the Court and

concluded that not all of the post-Roe cases could be

reconciled with the holding in Roe that a State has legiti-

mate interests. Jd. at 871.

Unfortunately, in the wake of Casey and Carhart, the

federal courts are again reviewing abortion regulations

under a standard tantamount to strict scrutiny. In fact,

the courts do not even take the States’ interests — compel-

ling or not — into consideration at all. In essence, the

federal courts” — including this Court” — have returned to

* See, e.g., Planned Parenthood v. Owens, 287 F.3d 910, 918 (10th

Cir. 2002) (stating that the “undue burden” standard did not apply to

the question of whether a health exception is required in an abortion

(Continued on following page)

the strict scrutiny standard urged in Justice Blackmun’s

dissent in Casey. Casey, 505 U.S. at 934 (Blackmun, J.,

concurring in part and dissenting in part) (“Application of

the strict scrutiny standard results in the invalidation of

all the challenged provisions.”).

The First Circuit is guilty of the same. In evaluating

New Hampshire’s parental notification statute, the First

Circuit solely considered the “large fraction-relevant

group-substantial obstacle” standard used in one portion

of the Casey opinion {hereinafter “Casey ‘large fraction’

standard”). Planned Parenthood v. Heed, 390 F.3d 53, 57-

58 (1st Cir. 2004); see also Casey, 505 U.S. at 895 (“[I)n a

large fraction of the cases in which [the particular provi-

sion] is relevant, it will operate as a substantial obstacle to

a woman’s choice to undergo an abortion.”). In doing so,

the First Circuit struck down as unconstitutional a paren-

tal notice statute which, ironically, is substantially identi-

cal to the statute this Court upheld in Hodgson. See

Hodgson, 497 U.S. at 423-27 nn.1-9; see also Appendix at

App. 6-9."

statute and concluding that “the current state of the law is that state

abortion regulations must provide an exception for the protection of the

health of pregnant women. .. .”).

“ In Carhart, Justice Kennedy maintained that the Court was

turning back to post-Roe and pre-Casey standards by applying the strict

scrutiny standard that Casey rejected. See Carhart, 530 U.S. at 968-69

(Kennedy, J., dissenting).

“ Also ironic ic ‘he fact that the plurality in Casey upheld the

parental consent s‘» ite at issue in that case — and did not apply the

“large fraction” stanuard in doing so. Casey, 505 U.S. at 899. Casey

involved a parental consent statute, while Hodgson involved a parental

notification statute - and the Court in Casey never questioned the

result in Hodgson.

The First Circuit did not in any way consider the

State’s interests in its analysis of New Hampshire's

parental notification statute.” The court concluded that “a

statute regulating abortion must contain a health excep-

tion in order to survive constitutional challenge” — without

any consideration of the State’s interests. Heed, 390 F.3d

at 59. After noting that this Court in Carhart could not

“see how the interest-related differences could make any

difference to the ... application of the ‘health’ require-

ment,” the First Circuit concluded the following:

Thus, regardless of the interests served by

New Hampshire’s parental notice statute, it does

not escape the Constitution’s requirement of a

health exception.

Id. at 59-60 (citing Carhart, 530 U.S. at 931) (emphasis

added). However, even strict scrutiny analysis considers

the States’ compelling interests and does not automatically

render a statute unconstitutional. See, e.g., Grutter v.

Bollinger, 539 U.S. 306, 334 (2003) (stating that the very

purpose of strict scrutiny is to take relevant differences

into account).

Yet the First Circuit apparently assumed that, con-

trary to this Court’s plain language in previous cases

reviewing parental consent and notification statutes, any

" New Hampshire's interests were outlined in the Legislature’s

findings of fact in HB 763. See Appendix at App. 1. This Court has also

repeatedly enumerated such interests in previous abortion decisions.

See Part 1.B., supra.

“ But see Thornburgh, 476 U.S. at 829 (O’Connor, J., dissenting)

(“I dispute not only the wisdom but also the legitimacy of the Court’s

attempt to discredit and preempt state abortion regulation regardless of

the interests it serves and the impact it has.”) (emphasis added).

influence on a minor’s decision and ability to obtain an

abortion is necessarily undue, even if such influences are

not “absolute” or “severely limiting.”” The First Circuit did

not consider the State’s interests and weigh them as less

than a minor’s in reaching its ruling — it simply left the

State’s interests at the wayside, because “regardless” of

what the State could show the court, the court was going

to rule against it. This newly-modified facial challenge

standard completely eviscerates the compelling interests

every State has in maternal health and the protection of

minors. This is the utter essence of the strict scrutiny

analysis the plurality in Casey repudiated.

Ill. THE CASEY “LARGE FRACTION” STANDARD

HAS SOWN CONSIDERABLE CONFUSION

AMONG COURTS AND STATE LAWMAKERS

Rather than clearing up the courts’ decisions that

went “too far” in the wake of Roe, Casey has simply proven

to confuse federal judges as they attempt to apply the

“large fraction” standard the plurality utilized in voiding

Pennsylvania’s spousal notice statute. See Casey, 505 U.S.

at 895. While the Court had previously applied the Salerno

“no set of circumstances” standard to abortion regulations

in Webster, Akron II, Hodgson, and Rust, the plurality in

Casey applied the Salerno standard to some of the Pennsyl-

vania provisions, such as the parental consent regulation,

and created the new “large fraction” facial challenge for

the spousal notice regulation. Moreover, the plurality did

so without overruling or even addressing the future

” See Akron I, 462 U.S. at 462-64 (O'Connor, J., dissenting);

Thornburgh, 476 U.S. at 828-29 (O’Connor, J., dissenting).

applicability of Salerno. If this Court cannot apply either

the Casey standard or the traditional facial challenge

standard evenly, it is hard to conceive how the lower

courts can do so.

This rule — that an abortion provision is unconstitu-

tional if, “in a large fraction of cases [the provision] will

operate as a substantial obstacle to a woman’s choice to

undergo an abortion” — is not capable of general or consis-

tent application by judges or state lawmakers. The three

material terms in this new standard — “large fraction,”

“relevant,” and “substantial” — are subjective and ambigu-

ous terms, and even more so in the context of a facial

challenge where a court caw only guess at the impact of

the law.

In utilizing the Casey “large fraction” standard, a

court must first decide in what situations a law is “rele-

vant.” This results in the kird of “worst-case analysis”

which the Court had previously declared should be

avoided in facial challenges. Akron II, 497 U.S. at 514

(“The Court of Appeals should not have invalidated the

Ohio statute on a facial challenge based upon a worst-case

analysis that may never occur.”). In situations concerning

parental notice statutes, courts typically include in the

relevant group only those minors who do not want to

inform their parents. Yet this is a tiny fraction of all minor

females in any particular state.”

* The courts should consider the positive impact of a parental

notice law on all minor females, as all minor females are put on notice

that if they engage in sex and become pregnant, they cannot obtain

abortions without first notifying their parents. Between 1981 and 1986,

when the Minnesota parental notice law was in effect, both adolescent

abortion rates and adolescent pregnancy rates fell significantly. See

(Continued on following page)

Second, a court must identify the “large fraction” of

this relevant group. Is ten percent a large enough fraction

of the relevant group? Or 20 or 30 percent? The plurality

in Casey gives no instruction as to this question. Finally, a

court must speculate as to whether a provision will impose

a “substantial obstacle” on this large fraction of the rele-

vant group. Is “substantial” determined by expense, time,

or both? May a court simply examine the face of the

statute itself, or is it required to assess other factors over

which a State legislature has no control, such as political,

demographic, geographic, and economic factors, and

whether these factors create a substantial obstacle to the

effectuation of a woman’s abortion decision?

The alleged abandonment of the traditional facial

challenge rule and the Casey plurality’s selective use of the

“large fraction” standard has forced the states to counter a

morass of speculative claims about what a law might

conceivably do if enforced. As one Fifth Circuit decision

aptly noted after Casey, “[djespite the recent efforts of a

three-justice plurality of the Supreme Court, passing on

the constitutionality of state statutes regulating abortion

after Casey has become neither less difficult nor more

closely anchored to the Constitution.” Barnes v. Miss., 992

F.2d 1335, 1337 (5th Cir. 1993). Indeed, just four years

after Casey, the Court itself once again sharply divided

James Rogers et al., Impact of the Minnesota Parental Notification Law

on Abortion and Birth, 81 AM. J. PuB. HEALTH 294 (1991). This evidence

demonstrates that the parental notice law impacted the entire group of

adolescent females.

over the standard of review in Janklow v. Planned Parent-

hood.”

Examples of the confusion created in the wake of

Casey are ample.” In 2002, the Seventh Circuit stated the

following:

When the Justices themselves disregard rather

than overrule a decision — as the majority did in

Stenburg, and the plurality did in Casey — they

put courts of appeals in a pickle. We cannot fol-

low 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

™ See generally Janklow v. Planned Parenthood, 517 U.S. 1174

(1996). In his concurrence in Janklow, Justice Stevens claimed that the

“no set of circumstances” standard was unsupported by precedent and

that Salerno’s “dictum” has been properly ignored in subsequent cases.

Janklow, 517 U.S. at 1175-76 (Stevens, J., concurring). However,

Justice Stevens also declared that in that particular circumstance there

was “no need .. . to affirmatively disavow” the language in Salerno. Id.

Noting that the Court has sent mixed signals to the lower courts on the

question of Salerno’s applicability, Justice Scalia stated that Salerno

has not been consistently ignored by the Court. Jd. at 1178, 1178 n.3

(Scalia, J., dissenting).

* See, e.g., Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 164-

65 (4th Cir. 2000) (noting “considerable debate amor.g the circuits”);

Planned Parenthood v. Lawall, 193 F.3d 1042, 1046 (9th Cir. 1999)

(O’Scannlain, J., dissenting) (noting the tension between the pre-Casey

cases and the “mysterious and unexplained deviation” from Salerno in

Casey); Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997) (stating

that the circuits are divided in the application of Salerno). See also Jane

L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (noting that the

standard applicable to previability abortion regulations after Casey is a

matter of some dispute); Planned Parenthood v. Miller, 63 F.3d 1452,

1457 (8th Cir. 1995) (stating that the circuits are split regarding

whether the Supreme Court has overruled Salerno for abortion cases).

an inferior court of the duty to follow decisions on

the books.

A Woman’s Choice - East Side Women’s Clinic v. Newman,

305 F.3d 684, 687 (7th Cir. 2002), cert. denied, 537 U.S.

1192 (2003).

The Fifth Circuit has noted, “[aJls far as we can tell,

the Court appears to be divided 3-3 on the Salerno-Casey

debate, and it would be ill-advised for us to assume that

the Court will abandon Salerno because three members of

the Court now desire that result.” Causeway Med. Suite v.

Ieyoub, 109 F.3d 1096, 1104 (5th Cir. 1997) (emphasis in

the original). As of 2004, the confusion still existed. The

Ninth Circuit recognized this confusion and noted that the

“large fraction” standard has been labeled “unique.”

Planned Parenthood v. Wasden, 376 F.3d 908, 920 n.9 (9th

Cir. 2004), cert. denied, 2005 U.S. LEXIS 2791 (March 28,

2005). The Fourth and Fifth Circuits have adhered to the

Salerno standard, while the Third, Sixth, Seventh, Eighth,

Ninth, and Tenth Circuits have adopted the “large frac-

tion” standard.

Added to the courts’ confusion is the fact that facial

challenges are inherently speculative. It is impossible in a

facial challenge for a court to find that a statute causes an

“undue burden,” as the statute has never gone into effect

or been enforced in real situations. By the very nature of

the analysis, a court can only guess the possible or likely

impact. This speculation is necessarily based upon infer-

ring, theorizing, or prediciing the future impact of a

statute from incomplete o1 uncertain evidence. There is no

alternative. However, once a law actually goes into effect,

it may have unanticipated consequences.”

Such a standard tempts plaintiffs to rely on exaggera-

tion, unsupported theories, and speculation about what

the impact of the law might be. Under such circumstances,

state officials defending the law are put at a distinct

disadvantage. Challengers in a facial challenge can drag

in every conceivable geographic, political, economic, or

social condition in a state — a “parade of horribles,” or

worst-case scenarios — claiming that the law will cause all

of them. To apply the standard in a facial challenge will

yield inconsistent results among different States even if

the laws are identical on their faces, as each State pos-

sesses different geographic, political, economic, and

demographic factors. The real legal question should

concern the actual impact of the law itself and how fairly

state officials have enforced it.”

*™ The decreasing pregnancy rate in Minnesota is an excellent

example of unexpected results. See supra n.20.

* The irony of the application of the “large fraction” facial chal-

_lenge standard in Casey was that the Court ignored the actual experi-

ence of Utah, where a spousal notice provision was in effect for 18 years

without a single documented incident of related domestic abuse. See

Jane L. v. Bangerter, 809 F. Supp. 865, 876 (D. Utah 1992), aff'd in part

& rev'd in part on other grounds, 61 F.3d 1493 (10th Cir. 1995). In its

facial analysis of the Pennsylvania spousal provision in Casey, the

plurality considered all kinds of possible horrific results that the

provision could produce, without looking at the actual experience in

Utah - which demonstrated the fallacy of the worst-case scenarios

speculated by the Court. See Casey, 505 U.S. at 887-98. This fallacy is

also shown through the experience of the Hyde Amendment, which

opponents incorrectly predicted would result in increased maternal

deaths. J. Gold & W. Cates, Jr., Restriction of Federal Funds for

Abortion: 18 Months Later, 69 AM. J. PuB. HEALTH 929 (1979); D.B.

Petitti & W. Cates, Jr., Restricting Medicaid Funds for Abortions:

(Continued on following page)

The likelihood of unanticipated consequences is

heightened when a _ self-interested, profit-motivated

business, like the abortion industry, is free to claim practi-

cally anything it wants about the possible impact of a

statute. This is the case here, where the court record is

devoid of testimony from minors seeking abortion and

consists solely of the testimonies of those parties who

stand to gain financially if the statute is struck down. The

Respondents asked the lower courts to hold the State

accountable for a variety of factors over which it has no

control (z.e., lack of good communication in families,

parents urging their children not to have abortions, etc.)

and accept their unsubstantiated claims that these factors

create an “undue burden” on a “large {:action” of minors

seeking abortions.

For similar reasons, the Casey “large fraction” stan-

dard makes it virtually impossible for state legislators to

reliably predict whether a particular parental notification

bill — or any abortion law — will be constitutional. In

assessing the constitutionality of an abortion bill, the

legislators have to assess how a federal court might

evaluate each of the three prongs of the test. They then

have to assess how those prongs will be evaluated in the

particular geographic, political, economic, and sociological

context of their own state. With the courts conused as to

the application of the traditional facial challenge standard

versus the Casey “large fraction” standard, state legisla-

tors are left to speculate the constitutionality of their bills.

Projections of Excess Mortality for Women of Childbearing Age, 67 AM.

J. Pus. HEALTH 860 (1977).

IV. BECAUSE OF THE SUBSTANTIAL HEALTH

RISKS FROM ABORTION TO MINORS, IT IS

NOT JUSTIFIABLE TO EXEMPT STATE PA-

RENTAL NOTICE LAWS, LIKE FIRST AMEND-

MENT OVERBREADTH, FROM THE TRADI-

TIONAL FACIAL CHALLENGE STANDARD.

As documented in amici briefs currently before this

Court, abortion entails serious health risks to women of

any age, and the immaturity of minors entails special

risks. Indeed, medical studies over the last three decades

have created substantial data on five significant risks from

abortion: increased risk of placenta previa;” risk of prema-

ture birth in subsequent pregnancies;” increased risk of

ments! distress or suicide;” loss of the protective effect of

* See, e.g., M.S. Hendricks et al., Previous Cesarean Section and

Abortion as Risk Factors for Developing Placenta Previa, 25(2] J. OBST.

Gyn. REs. 137 (Apr. 1999); C.V. Anath et al, The Association of Placenta

Previa with History of Cesarean Delivery and Abortion: A Meta-

analysis, 177 AM. J. Opst. GYN. 1071 (1997); V.M. Taylor et al., Placenta

Previa in Relation to Induced and Spontaneous Abortion: A Population-

Based Study, 82 Osst. & Gyn. 88 (1993).

* See, e.g., A. Conde-Agudelo et al., Effect of the Interpregnancy

Interval after an Abortion on Maternal and Perinatal Health in Latin

America, 89 INT’L J. Gyn. Osst. S34 (Supp. Apr. 2005); C. Moreau et al.,

Previous Induced Abortions and the Risk of Very Preterm Delivery:

Results of the EPIPAGE Study, 112(4) Brit. J. Osst. Gyn. 430 (Apr.

2005); P-Y. Ancel et al., History of Induced Abortion as a Risk Factor for

Preterm Birth in European Countries: Results of the EUROPOP Survey,

19{3]} HumaN REPROD. 734 (Mar. 2004); Brent Rooney & Byron C.

Calhoun, Induced Abortion and Risk of Later Premature Births, 8(2) J.

AM. PHYSICIANS & SURGEONS 46 (Summer 2003).

* See, e.g., Jesse Cougle et al., Depression Associated with Abortion

and Childbirth: A Long-Term Analysis of the NLSY Cohort, 9[4] MED.

Sci. Montror CR157 (2003); John M. Thorp et al., Long-Term Physical

and Psychological Health Consequences of Induced Abortion: Review

of the Evidence, 58{1] Osst. Gyn. SURVEY 67 (Jan. 2003); P.K. Coleman

et al., State-Funded Abortions Versus Deliveries: A Comparison of

(Continued on following page)

full-term pregnancies against breast cancer;” and in-

creased risk of substance abuse.”

Some of the data substantiating these risks was not

available when this Court decided Casey. One landmark

article in 2003 examined medical studies on abortion

between 1966 and 2002 in order to assess the long-term

physical and psychological health consequences of induced

abortion. Thorp, supra, at 68-69. The researchers con-

cluded that women contemplating abortion should be

informed of the following: their risk of subsequent preterm

birth will be elevated; they will lose the protective effect of

a full-term delivery on their lifetime risk of breast carci-

noma; there are increased rates of placenta previa after

abortion; and the disputed independent risk of induced

abortion on breast cancer risk. Jd. at 77. The study also

found that induced abortion increases the risks for mood

disorders “substantial enough to provoke attempts of self-

harm.” Jd. at 67.

Left to their own devices, minors cannot adequately

monitor these significant health risks.” These significant

Outpatient Mental Health Claims Over Four Years, 72(1) Am. J.

ORTHOPSYCHIATRY 141 (Jan. 2002); M. Gissler et al., Suicides After

Pregnancy in Finland, 1987-1994: Register Linkage Study, 313[7070}

Brit. MED. J. 1431 (Dec. 7, 1996).

™ See, eg., Thorp, supra; J.R. Daling et al., Risk of Breast Cancer

Among Young Women: Relationship to Induced Abortion, 86(21) J. NATL

CANCER INST. 1584 (Nov. 2, 1994).

* See, e.g., PK. Coleman et al., Substance Use Among Pregnant

Women in the Context of Previous Reproductive Loss anu Desire for

Current Pregnancy, 10(2] Brit. J. HEALTH PSYCHOLOGY 255 (May 2005).

*” Minors also cannot adequately monitor potential substandard

credentials of abortion providers or unsafe conditions in clinics.

health risks justify the application of the traditional facial

challenge standard to challenges to parental notice and

consent statutes. Likewise, these risks justify a strict

challenge standard is also necessary to focus federal courts

on more than simply increasing access to and minimizing

the costs of abortion for minors.

Abortion litigation is unique because Singleton v.

Wulff empowered abortion providers to represent women

in abortion litigation and to challenge statutes that regu-

late the provider in seeking to protect minors. 428 U.S.

106 (1976). In this unique context of abortion litigation, a

facial challenge voids a statute completely, vests abortion

providers with absolute discretion, and eliminates common

sense regulations. Yet if the traditional facial challenge

standard is utilized, failure to demonstrate facial invalid-

ity would compel the abortion providers to resort to an as-

applied challenge and a real-life factual demonstration

involving the particular abortion provider. Requiring such

a challenge would appropriately induce the federal courts

to ask serious, probing questions about whether a statute

is in fact an “undue burden” or any burden at all compared

to the benefit it provides. See Casey, 505 U.S. at 873-75

(stating that not every burden is undue).

For these reasons, overbreadth doctrine is inappropri-

ate for abortion litigation. It was created in and confined to

the First Amendment context because of the unique concern

about chilling speech.” That concern is not present in

* Moreover, overbreadth alone is not enough even in the First

Araendment context. Rather, there must be substantial overbreadth.

See Broadrick v. Okla., 413 U.S. 601, 615 (1973); Gooding v. Wilson, 405

U.S. 518, 520-23 (1972). This Court has specifically acknowledged more

(Continued on following page)

abortion litigation.” The medical risks to minors, com-

bined with the unique problem of minors’ immaturity,

outweigh any concern about “chilling” abortion on demand

for minors. Overbreadth in the abortion context would

undermine thorough review of challenges to common sense

regulations and would eviscerate the compelling interests

— such as protecting minors from the heightened risks of

placenta previa, premature birth, psychological trauma,

and substance abuse™ — that the States have in common

sense regulations.

than once that “application of the overbreadth doctrine is ‘strong

medicine’ that should be invoked only ‘as a last resort.’” See, eg.,

Munson, 467 1’ S. at 958 (quoting Broadrick, 413 U.S. at 613). Abortion

is not entitled to equivalent protection as an exception to the facial

challenge rule.

™ See Part L.C., supra.

* In addition, there is a compelling need to protect minors from

statutory rape and sexual abuse. See, e.g., Manning, 119 F.3d at 266

(stating that an injunction of the North Carolina parental consent

statute would mean the State would have “one less avenue to discover

the sexual abuse of children and [to] take action to protect” the innocent

minors).

28 App. 1

CONCLUSION APPENDIX

The judgment of the court below should be reversed. New Hampshire Parental Notice Statute

Respectfully submitted, § 173:1 Legislative Purpose and Findings.

CLARKE D. FORSYTHE I. It is the intent of the legislature in enacting this

(Counsel of Record) parental notification provision to further the important

en ee and compelling state interests of protecting minors against

. — their own immaturity, fostering the family structure and

AMERICANS UNITED FOR LIFE nar ' é, '

310 South Peoria Street, preserving it as a viable social unit, and protecting the

Suite 300 rights of parents to rear children who are members of

Chicago, Illinois 60607 their household.

stare rae II. The legislature finds as fact that:

Counsel for Amici Curiae hts ts ste

August 8, 2005 (a) Immature minors often ability to make

fully informed choices that take account of both immediate

and long-range consequences.

(b) The medical, emotional, and psychological conse-

quences of abortion are serious and can be lasting, particu-

larly when the patient is immature.

for mature judgment concerning the wisdom of abortion

are not necessarily related.

(d) Parents ordinarily possess information essential

to a physician’s exercise of best medical judgment concern-

ing the child.

(e) Parents who are aware that their minor daughter

has had an abortion may better ensure that she receives

adequate medical attention after the abortion.

Ill. The legislature further finds that parental consulta-

tion is usually desirable and in the best interest of the

minor.

App. 2

§ 173:2 New Subdivision; Parental Notificatiun Prior

to Abortion. Amend RSA 132 by inserting after section

23 the following new subdivision:

Parental Notification Prior to Abortion

§ 132:24 Definitions.

In this subdivision:

I. “Abortion” means the use or prescription of any in-

strument, medicine, drug, or any other substance or device

intentionally to terminate the pregnancy of a female

known to be pregnant with an intention other than to

increase the probability of a live birth, to preserve the life

or health of the child after live birth, or to remove an

ectopic pregnancy or the products from a spontaneous

miscarriage.

Il. “Commissioner” means the commissioner of the

department of health and human services.

III. “Department” means the department of health and

human services.

IV. “Emancipated minor” means any minor female who is

or has been married or has by court order otherwise been

freed from the care, custody, and control of her parents.

V. “Guardian” means the guardian or conservator ap-

pointed under RSA 464-A, for pregnant females.

VI. “Minor” means any person under the age of 18 years.

VII. “Parent” means one parent of the pregnant girl if

one is living or the guardian or conservator if the pregnant

girl has one.

App. 3

§ 13225 Notification Required.

I. No abortion shall be performed upon an unemanci-

pated minor or upon a female for whom a guardian or

conservator has been appointed pursuant to RSA 464-A

_ because of a finding of incompetency, until at least 48

hours after written notice of the pending abortion has been

delivered in the manner specified in paragraphs II and III.

II. The written notice shall be addressed to the parent at

personally to the parent by the physician or an agent.

III. In lieu of the delivery required by paragraph II,

notice shall be made by certified mail addressed to the

parent at the usual place of abode of the parent with

return receipt requested and with restricted delivery to

the addressee, which means the postal employee shall only

deliver the mail to the authorized addressee. Time of

delivery shall be deemed to occur at 12 o’clock noon on the

next day on which regular mail delivery takes place,

subsequent to mailing.

§ 132:26 Waiver of Notice.

I. No notice shall be required under RSA 132:25 if:

(a) 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; or

(b) The person or persons who are entitled to notice

certify in writing that they have been notified.

II. If such a pregnant minor elects not to allow the

notification of her parent or guardian or conservator, any

App. 4

judge of a court of competent jurisdiction shall, upon

petition, or motion, and after an appropriate hearing,

authorize an abortion provider to perform the abortion if

said judge determines that the pregnant minor is mature

and capable of giving informed consent to the proposed

abortion. If said judge determines that the pregnant minor

is not mature, or if the pregnant minor does not claim to

be mature, the judge shall determine whether the per-

formance of an abortion upon her without notification of

her parent, guardian, or conservator would be in her best

interests and shall authorize an abortion provider to

perform the abortion without such notification if said

judge concludes that the pregnant minor’s best interests

would be served thereby.

(a) Such a pregnant minor may participate in pro-

ceedings in the court on her own behalf, and the court may

appoint a guardian ad litem for her. The court shall,

however, advise her that she has a right to court-

appointed coursel, and shall, upon her request, provide

her with such counsel.

(b) Proceedings in the court under this section shall

be confidential and shall be given such precedence over

other pending matters so that the court may reach a

decision promptly and without delay so as to serve the best

interest of the pregnant minor. In no case shall the court

fail to rule within 7 calendar days from the time the

petition is filed. A judge of the court who conducts proceed-

ings under this section shall make in writing specific

factual findings and legal conclusions supporting the

decision and shall order a record oi the evidence to be

maintained including the judge’s own findings and conclu-

sions.

App. 5

able to any such pregnant minor for whom the court

denies an order authorizing an abortion without notifica-

tion. The court shall make a ruling within 7 calendar days

from the time of the docketing of the appeal. An order

authorizing an abortion without notification shall not be

subject to appeal. No filing fees shall be required of any

such pregnant minor at either the trial or the appellate

level. Access to the trial court for the purposes of such a

petition or motion, and access to the appellate courts for

purposes of making an appeal from denial of the same,

shall be afforded such a pregnant minor 24 hours a day, 7

days a week.

§ 132:27 Penalty.

Performance of an abortion in violation of this subdivision

shall be a misdemeanor and shall be grounds for a civil

action by a person wrongfully denied notification. A person

shall not be held liable under this section if the person

establishes by written evidence that the person relied

upon evidence sufficient to convince a careful and prudent

person that the representations of the pregnant minor

regarding information necessary to comply with this

section are bone fide and true, or if the person has at-

tempted with reasonable diligence to deliver notice, but

has been unable to do so.

§ 132:28 Severability.

If any provision of this subdivision or the application

thereof to any person or circumstance is held invalid, such

invalidity shall not affect the provisions or applications of

this subdivision which can be given effect without the

invalid provisions or applications, and to this end, the

provisions of this subdivision are severable.

App. 6

§173:3 Effective Date. This act shall take effect De-

cember 31, 2003.

Minnesota Parental Notice Statute’

§ 144.343.

(1) Any minor may give effective consent for medical,

mental and other health services to determine the pres-

ence of or to treat pregnancy and conditions associated

therewith, venereal disease, alcohol and other drug abuse,

and the consent of no other person is required.

(2) Notwithstanding the provisions of section 13.02,

subdivision 8, no abortion operation shall be performed

upon an unemancipated minor. . . . [u]ntil at least 48 hours

after written notice of the pending operation has been

delivered in the manner specified in subdivisions 2 to 4.

(a) The notice shall be addressed to the parent at the

usual place of abode of the parent and delivered personally

to the parent by the physician or an agent.

(b) In lieu of the delivery required by clause (a),

notice shall be made by certified mail addressed to the

parent at the usual place of abode of the parent with

return receipt requested and restricted delivery to the

addressee which means postal employee can only deliver

the mail to the authorized addressee. Time of delivery

shall be deemed to occur at 12 o’clock noon on the next day

on which regular mail delivery takes place, subsequent to

mailing.

This statute was upheld in Hodgson v. Minnesota, 497 U.S. 417

(1990).

App. 7

(3) For purposes of this section, “parent” means both

parents of the pregnant woman if they are both living, one

parent of the pregnant woman if only one is living or if the

second one cannot be located through reasonably diligent

effort, or the guardian or conservator if the pregnant

woman has one.

(4) No notice shall be required under this section if:

(a) The attending physician certifies in the pregnant

woman’s medical record that the abortion is necessary to

prevent the woman’s death and there is insufficient time

to provide the required notice; or

(b) The abortion is authorized in writing by the

person or persons who are entitled to notice; or

victim of sexual abuse, neglect, or physical abuse as

defined in section 626.556. Notice of that declaration shall

be made to the proper authorities as provided in section

626.556, subdivision 3.

(5) Performance of an abortion in violation of this section

shall be a misdemeanor and shall be grounds for a civil

action by a person wrongfully denied notification. A person

shall not be held liable under this section if the person

establishes by written evidence that the person relied

upon evidence sufficient to convince a careful and prudent

person that the representations of the pregnant woman

regarding information necessary to comply with this

section are bona fide and true, or if the person has at-

tempted with reasonable diligence to deliver notice, but

has been unable to do so.

(6) If subdivision 2 of this law is ever temporarily or

permanently restrained or enjoined by judicial order,

App. 8

subdivision 2 shall be enforced as though the following

paragraph were incorporated as paragraph (c) of that

subdivision; provided, however, that if such temporary or

permanent restraining order or injunction is ever stayed

or dissolved, or otherwise ceases to have effect, subdivision

2 shall have full force and effect, without being modified

by the addition to the following substitute paragraph

which shall have no force or effect until or unless an

injunction or restraining order is again in effect.

(ci) If such a pregnant woman elects not to allow

the notification of one or both of her parents or guardian

or conservator, any judge of a court of competent jurisdic-

tion shall, upon petition, or motion, and after an appropri-

ate hearing, authorize a physician to perform the abortion

if the judge determines that the pregnant woman is

mature and capable of giving informed consent to the

proposed abortion. If said judge determines that the

pregnant woman is not mature, or if the pregnant woman

does not claim to be mature, the judge shall determine

whether the performance of an abortion upon her without

notification of her parents, guardian, or conservator would

be in her best interests and shall authorize a physician to

perform the abortion without such notification if said

judge concludes that the pregnant woman’s best interests

would be served thereby.

(ii) Such a pregnant woman may participate in

proceedings in the court on her own behalf, and the court

may appoint a guardian ad litem for her. The court shall,

however, advise her that she has a right to court appointed

counsel, and shall, upon her request, provide her with

such counsel.

App. 9

(iii) Proceedings in the court under this section shall

be confidential and shall be given such precedence over

other pending matters so that the court may reach a

decision promptly and without delay so as to serve the best

interests of the pregnant woman. A judge of the court who

conducts proceedings under this section shall make in

writing specific factual findings and legal conclusions

supporting the decision and shall order a record of the

evidence to be maintained including the judge’s own

findings and conclusions.

(iv) An expedited confidential appeal shall be avail-

able to any such pregnant woman for whom the court

denies an order authorizing an abortion without notifica-

tion. An order authorizing an abortion without notification

shall not be subject to appeal. No filing fees shall be

required of any such pregnant woman at either the trial or

the appellate level. Access to the trial court for the pur-

poses of such a petition or motion, and access to the

appellate courts for purposes of making an appeal from

denial of the same, shall be afforded such a pregnant

woman 24 hours a day, seven days a week.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.