# Amicus Curiae Brief — Ayotte v. Planned Parenthood

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0074%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 320

## 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,
V.

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

I.

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

C.

ute is not invalid in all of its applications ...
The courts’ application of the Casey “large

ii

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

iv

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

v

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

vi

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

1

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.

2

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

3

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.

4

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)

5

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)

6

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).

7

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).

8

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).

9

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

10

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

11

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).

12

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).

13

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).

14

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)

15

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.

16

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).

17

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).

18

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)

19

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.

20

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).

21

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

22

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)

23

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).

24

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)

25

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.

26

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)

27

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.

(c) The capacity to become pregnant and the capacity
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.

a

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
the usual place of abode of the parent and delivered ©
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

(c) An expedited confidential appeal shall be avail-
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

(c) The pregnant minor woman declares that she is a
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0074%3A17. Public record. Not legal advice.