Amicus Curiae Brief — Ayotte v. Planned Parenthood

,

No. 04-1144

Jn the Supreme Court of the Cnited States

KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW

HAMPSHIRE, PETITIONER

v.

PLANNED PARENTHOOD OF NORTHERN

NEW ENGLAND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

KANNON K. SHANMUGAM

Assistant to the Solicitor

Genera!

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

Attorneys

Department of Justice

Washington, D.C. 20520-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a plaintiff bringing a facial challenge to a

statute regulating abortion must show that there is no set of

circumstances under which the statute would be valid.

2. Whether respondents’ facial challenge to the New

Hampshire Parental Notification Prior to Abortion Act,

N.H. Rev. Stat. Ann. §§ 132:24-132:28 (Supp. 2004), lacked

merit because the statute was not required to contain an ex-

press health exception and contained a sufficient life excep-

tion.

vn

TABLE OF CONTENTS

Page

ee |

ID, ccccccnssnsennsnmnnsssssssennmmenmmenemmmesrmngeneenemnessnesmmmenens 2

GOIN, ccncnnennsemmmes 7

Argument:

Respondents’ facial challenge to New Hampshire's

parental-notification statute lacks merit ~................--0-+ oy)

I. Respondents were required to show that

there is no set of circumstances under which

the statute would be Valid ..............cccccscscesserserseereesenees y

A. The “no set of circumstances” test is the

correct test for facial challenges ....................+ oy)

B. The doctrine of overbreadth applies only

to facial challenges under the First

COE cnn 12

C. This Court’s decision in Casey did not alter

the standard for facial challenges outside

the context of spousal-notification provi-

IED cee 16

Il. Respondents’ facia! challenge lacks merit be-

cause the statute was not required to contain

an express health exception and contained a

a GD cence 18

A. The court of appeals applied an improper

standard for facial challenges to statutes

regulating Abortion ..........c-ccescvsssersessesseeseessessenseee (+18

B. This court’s decision in Stenberg did not

require every statute regulating abortion

to contain an express health exception. ............. 20

(III)

IV

Table of Contents—Continued: Page

C. Respondents failed to demonstrate that

health emergencies would preclude the

ordinary operation of the statute in more

than a small fraction of the cases to which

Gd GRRRRD GEES cecenerreenrmeneeseeseneeens 25

D. Respondents failed to demonstrate that the

statute’s life exception was insufficient ............ 28

CRN cennensssemseseneninee 30

TABLE OF AUTHORITIES

Cases:

Anderson v. Edwards, 514 U.S. 143 (1995) .............cccccceees 10

Aptheker v. Secretary of State, 378 U.S. 500

ee 13

Barrows v. Jackson, 346 U.S. 249 (1958) ...........cccccccceeeceeee 11

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ............... 13

Blodgett v. Holden, 275 U.S. 142 (1927) ......cccccccceceeceeseeeees 11

Bresgal v. Brock, 343 F.2d 1163 (9th Cir. 1987) ............... 15

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .......... 11, 12,19

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

GE cxsnsessnsstineien “ 12

Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005) ........... 2

City of Akren v. Akron Ctr. for Reprod. Health,

e., Ge Oa GEG eee 16

City of Boerne v. Flores, 521 U.S. 507 (1997) 2.0.0... 13

Colautti v. Franklin, 439 U.S. 379 (1979) .........ccccccceeseeees 28

RC GS 16

Hodgson v. Minnesota, 497 U.S. 417 (1990) ....... 6, 14, 22, 24

Hohn v. United States, 524 U.S. 236 (1998) .................00 18

Lambert v. Wicklund, 520 U.S. 292 (1997) .........c.cce0-e 22, 23

Liverpool, N.Y. & Philadelphia S.S. Co. v.

Commissioners of Emigration, 113 U.S. 33

SETI exeenenicensnestnneennenesenenienemmmennnienmnennanenttinntieienninaiainiiiie ll

Cases—Continued: Page

Massachusetts v. Oakes, 491 U.S. 576 (1989) .................... 13, 14

National Abortion Fed’n v. Ashcroft, 330 F.Supp.

2d 436 (S.D.N.Y. 2004), appeal pending,

No. 04-5201 (2d Cir. filed Sept. 29, 2004) . 2

New York v. Ferber, 458 U.S. 747 (1982) ................. 11, 12,19

Ohio v. Akron Ctr. for Reprod. Health, 497 US.

502 (1990) 10, 14, 18, 19, 22

O'Gorman & Young, Inc. v. Hartford Fire Ins.

Co., 282 U.S. 251 (1981) 26

Planned Parenthood Ass'n of Kansas City, Mo. v.

Ashcroft, 462 U.S. 476 (1983) 14, 22

Planned Parenthood Found. v. Ashcroft, 320 F.

Supp. 2d 957 (N.D. Cal. 2004), appeal pending,

No. 04-16621 (9th Cir. filed Aug. 20, 2004) 2

Planned Parenthood of Cent. Mo. v. Danforth,

428 US. 52 (1976) 16

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ...... 5, 7, 16, 17, 21, 23, 25

Reno v. Flores, 307 U.S. 292 (1993) = 10

Roe v. Wade, 410 U.S. 113 (1973) 16

Rust v. Sullivan, 500 U.S. 173 (1991) 10, 18

Sabri v. United States, 541 U.S. 600 (2004) 220000000... 11,13

Schall v. Martin, 467 U.S. 253 (1984) 13

Singleton v. Wulff, 428 U.S. 106 (1976) 16

Steffel v. Thompson, 415 U.S. 452 (1974) 10, 15

Stenberg v. Carhart, 530 U.S. 914 (2000) 5, 8,

20, 21, 22, 26

United States v. Raines, 362 U.S. 17 (1960) . 11

United States v. Salerno, 481 U.S. 739 (1987)... 5, 7,

10, 13, 19, 25

United States v. Vuitch, 402 U.S. G2 (1971) ........cccccceceeee 28

Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) y

Virginia v. Hicks, 539 U.S. 113 (2008) 13,14

VI Jn the Supreme Court of the United States

Cases—Continued: Page No. 04-1144

Webster v. Reproductive Health Servs., 492 U.S. KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW

RR 10, 18 HAMPSHIRE, PETITIONER

Women’s Med. Prof'l Corp. v. Voinovich, 130

F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S.

RESETS SS Aenea Sve OD 24 PLANNED PARENTHOOD OF NORTHERN

NEW ENGLAND, ET AL.

v.

Constitution and statutes:

U.S. Const.:

(SE ee a 7, 12, 13,14 ON WRIT OF CERTIORARI

SII VU cesnscstssenssetemmmnnrnnemmansmnessinenn 13 TO THE UNITED STATES COURT OF APPEALS

GERGRE GPS cen 13 PCy wee

Partial-Birth Abortion Ban Act of 2003, Pub. L. No.

TE l BRIEF FOR THE UNITED STATES

OO OEE 2 AS AMICUS CURIAE SUPPORTING PETITIONER

Seb ee ee PGS ennneinemneeneen l

Parental Notification Prior to Abortion Act,

N.H. Rev. Stat. Ann. (Supp. 2004): INTEREST OF THE UNITED STATES

SD GED creer 2 . — .

© GRD cena 2 This case concerns the constitutionality of New Hamp-

© Ge enensnaeen 3 shire’s Parental Notification Prior to Abortion Act, which,

> ED ceeenenennnnsnnnnsninnen 3 with certain exceptions, prohibits e physician from per

Dp a aentitisneeenacntanitaiedaneidilindinei 3, 24, 28 forming an abortion on an unemancipated minor until 48

BD SE scseeessteicisicisdaretbteancitnantinntitsiniaintiinieaien 3, 24 hours after written notice is delivered to a parent or guard-

Se crneeneeunenennninnmenns 3, 29 ian. Although that statute contains a judicial-bypass provi-

DD ceemnensiernneseeneneen 3 sion and an express exception for cases in which the abortion

RE NN 3, 4, 27 is necessary to preserve the life of the mother, it contains no

5 aaa 4, 28 express exception for the health of the mother.

SD cecesrtensinetrenteniietentnntidiidiseeeninstntiriinarimiintis 4 In 2003, Congress enacted, and the President signed, the

Partial-Birth Abortion Ban Act, Pub. L. No. 108-105, 117

Stat. 1201 (to be codified at 18 U.S.C. 1531) (the Act). The

Act prohibits a physician from knowingly performing a par-

tial-birth abortion (as defined in the statute) in or affecting

interstate commerce. § 3, 117 Stat. 1206-1207. Like the New

| (1)

Hampshire statute at issue in this case, the Act contains an

express exception for cases in which the abortion is neces-

sary to preserve the life of the mother, but no express ex-

ception for the health of the mother. Congress, however,

made extensive factual findings that a partial-birth abortion

is never medically indicated to preserve a mother’s health.

§ 2, 117 Stat. 1201-1206.

Facial challenges to the federal Act were filed within days

of the President’s signing the Act into law. Those challenges

are currently pending in the lower courts, which are consid-

ering, inter alia, the question whether the Act is unconstitu-

tional because it lacks an express health exception. See

Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005); National

Abortion Fed’n v. Ashcroft, 330 F. Supp. 2d 436 (S.D.N.Y.

2004), appeal pending, No. 04-5201 (2d Cir. filed Sept. 29,

2004); Planned Parenthood Found. v. Ashcroft, 320 F. Supp.

2d 957 (N.D. Cal. 2004), appeal pending, No. 04-16621 (9th

Cir. filed Aug. 20, 2004). Because the Court’s decision in this

case on the standard for facial challenges to statutes regu-

lating abortion, and on the ultimate validity of New Hamp-

shire’s parental-notification statute, may have direct rele-

vance to the government’s defense of an Act of Congress in

ongoing litigation, the United States has a substantial inter-

est in the outcome of this case.

STATEMENT

1. In 2003, the New Hampshire Legislature enacted the

Parental Notification Prior to Abortion Act. N.H. Rev. Stat.

Ann. §§ 132:24-132:28 (Supp. 2004). That statute prohibits a

physician from performing an abortion on an unemancipated

minor until 48 hours after written notice is delivered to a

parent (or guardian). Jd. § 132:25(1).' Notice may be pro-

' The statute imposes a similar requirement with regard to a woman

- for whom a guardian or conservator has been appointed because of a find-

ing of incompetency. See N.H. Rev. Stat. Ann. § 132:25(1) (Supp. 2004).

vided in one of two ways: (1) by personal delivery to

the parent by the physician or an agent, or (2) by certified

mail addressed to the parent at the parent’s residence,

with restricted delivery and return receipt requested. /d.

§ 132:25(11) and (III). In the latter instance, delivery is

deemed to have occurred at noon on the first day after mail-

ing on which mail delivery takes place. /d. § 132:25(III). No-

tice is not required in two circumstances: (1) if the parent

certifies in writing that he or she has in fact been notified, or

(2) if the doctor “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.” Jd. § 132:26(1).

The statute also contains a judicial-bypass provision. N.H.

Rev. Stat. Ann. § 132:26(1I) (Supp. 2004). If a minor “elects

not to allow the notification of her parent,” she may petition

“any judge of a court of competent jurisdiction” to authorize

her doctor to perform an abortion without notification. /bid.

The judge may authorize the abortion (1) if the judge deter-

mines that the minor is mature and capable of giving in-

formed consent to the abortion, or (2) if the judge determines

that performance of the abortion without notification would

be in the minor’s best interests. /bid. The judicial-bypass

provision specifies that the minor is entitled to court-

appointed counsel, id. § 132:26(II)(a), and that proceedings

shall be confidential, id. § 132:26(11)(b). It further specifies

that proceedings “shall be given such precedence over other

pending matters * * * that the court may reach a decision

promptly and without delay so as to serve the best interest

of the pregnant minor,” and that the court must rule no later

than “within 7 calendar days from the time the petition is

filed.” Jbid. The provision allows the minor to proceed with

a similarly expedited appeal if the trial court denies the peti-

tion, id. § 132:26(11)(c), and states that access to the courts

for the purposes of such a petition “shall be afforded * * *

24 hours a day, 7 days a week,” ibid.

The statute imposes civil and criminal penalties on a per-

son who performs an abortion in violation of the statute, but

creates a safe harbor if (1) the person establishes that he or

she reasonably believed that representations of the minor

regarding relevant information were bona fide and true

or (2) the person attempted with reasonable diligence to de-

liver notice, but was unable to do so. N.H. Rev. Stat. Ann.

§ 132:27 (Supp. 2004). The statute also contains a broad sev-

erability provision. Jd. § 132:28.

2. Before the statute took effect, respondents, three

abortion-clinic operators and a doctor who performs abor-

tions, filed suit in federal district court against the Attorney

General of New Hampshire, seeking declaratory and injunc-

tive relief.” Respondents brought a facial challenge to the

statute, contending that the statute was uneonstitutional in

its- entirety because (1) it lacked an express exception for

cases in which an abortion was necessary to preserve the

health of the mother and (2) it contained an insufficient ex-

ception for cases in which an abortion was necessary to pre-

serve the life of the mother.’ The district court held that the

statute was unconstitutional on both grounds, and perma-

nently enjoined its enforcement. Pet. App. 24-40. As a pre-

liminary matter, the district court rejected the State’s con-

tention that the appropriate standard for a facial challenge to

* During the course of this litigation, petitioner Kelly A. Ayotte suc-

ceeded Peter Heed as the Attorney General of New Hampshire. For sim-

plicity, we refer to the defendant in this litigation as “the State.”

> Respondents also contended that the requirement that proceedings

under the judicial-bypass provision be confidential was insufficient. The

district court and the court of appeals both declined to address that con-

tention after holding that the statute was unconstitutional on other

grounds. See Pet. App. 21-22 (court of appeals); id. at 36-38 (district

court).

a statute regulating abortion was whether there was “no set

of circumstances” under which the statute would be valid.

Id. at 28 (citing United States v. Salerno, 481 U.S. 739, 745

(1987)). Instead, the court reasoned that this Court’s deci-

sions in Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992), and Stenberg v. Carhart, 530

U.S. 914 (2000), “provide[d] the governing standard” for fa-

cial challenges in the abortion context. Pet. App. 29.

On the merits, the district court first held that the statute

was invalid because it failed to “comply with the constitu-

tional requirement that laws restricting a woman’s access to

abortion must provide a health exception.” Pet. App. 33.

The court rejected the State’s contention that the judicial-

bypass provision would sufficiently preserve the health of

the mother, concluding that “the judicial bypass process nec-

essarily delays an abortion in a health emergency.” Jd. at 34.

The court cited the declaration of respondent Dr. Wayne

Goldner, who stated that “certain medical conditions during

pregnancy require immediate abortion to protect the health

of the mother and that any delay would jeopardize her

health.” Jd. at 35. The court then held that the statute insuf-

ficiently preserved the life of the mother because the statu-

tory term “necessary” was unconstitutionally vague and be-

cause the statute could not be given a saving construction.

Id. at 36.

3. The court of appeals affirmed. Pet. App. 1-23. On the

question of the correct standard for facial challenges to abor-

tion statutes, the court conceded that there was “tension”

between the “no set of circumstances” standard from

Salerno and the “undue burden” standard from Casey and

Stenberg. Id. at 7. Ultimately, however, the court concluded

that the “undue burden” standard “supersede[d] Salerno in

the context of abortion regulation.” Jd. at 9.

As to respondents’ claim that the statute was invalid be-

cause it lacked an express health exception, the court of ap-

peals reasoned that, in Stenberg, this Court “identified a spe-

cific and independent constitutional requirement that an

abortion regulation must contain an exception for the pres-

ervation of a pregnant woman’s health.” Pet. App. 9. Thus,

the court of appeals concluded, “a statute regulating abortion

must contain a health exception in order to survive constitu-

tional challenge.” Jd. at 10. The court reasoned that this re-

quirement applied “regardless of the interests served by

New Hampshire's parental notice statute,” id. at 12, and

notwithstanding this Court’s earlier decision in Hodgson v.

Minnesota, 497 U.S. 417 (1990), upholding a parental-noti-

fication statute that lacked a health exception, Pet. App. 12.

Like the district court, the court of appeals rejected the

State’s contention that the judicial-bypass provision sufficed

to preserve the health of the mother. Jd. at 16-17. The court

of appeals reasoned that “[djelays of up to two weeks can

* * * occur” under that provision, and added that, “{e]ven

when the courts act as expeditiously as possible, those mi-

nors who need an immediate abortion to protect their health

are at risk.” Jd. at 17.

As to respondents’ claim that the statute was invalid be-

cause it contained an insufficient life exception, the court of

appeals reasoned that “the time component of the [statute’s]

death exception forces physicians either to gamble with their

patient’s lives in hopes of complying with the notice re-

quirement before a minor’s death becomes inevitable, or to

risk criminal and civil liability by providing an abortion with-

out parental notice.” Pet. App. 18-19. In addition, the court

noted, “a physician cannot know whether his or her determi-

nation that a minor’s life is at risk will be judged according to

a standard (e.g., knowingly) that respects [his or] her good-

faith medical assessment, or by an objective standard (negli-

gently) that would leave the physician’s judgment open to

post hoc second guessing.” Jd. at 20. The court concluded

that “(t]he resulting uncertainty would * * * impermissibly

chill physicians’ willingness and ability to provide lifesaving

abortions.” Ibid.

SUMMARY OF ARGUMENT

In facially invalidating the New Hampshire parental-

notification statute, the conrt of appeals misapplied this

Court’s precedents both on facial challenges and on the sub-

stantive law concerning abortion. Under the standard ar-

ticulated in United States v. Salerno, 481 U.S. 739 (1987), a

plaintiff bringing a facial challenge to a statute (and thus

seeking to render it void in all its applications) must demon-

strate that the statute is in fact invalid in all its applications.

That standard is both consistent with separation-of-powers

principles and easy to administer. This Court’s decision in

Planned Parenthood of Southeastern Pennsylvania v. Ca-

sey, 505 U.S. 833 (1992), did not purport to alter the standard

for facial challenges in the abortion context generally. At

most, it altered the standard for facial challenges in the nar-

row context of spousal-notification provisions. Because the

Court did not purport to modify the facial-challenge stan-

dard more broadly, the default rule of Salerno controls here.

There is no reason to abandon Salerno for facial challenges

to statutes regulating abortion, or to import overbreadth

principles that are tailored to the First Amendment free-

speech context. To the extent that it is desirable to allow

access to courts to challenge problematic applications of an

abortion-related statute before plaintiffs suffer irreparable

injury, such challenges can go forward on an as-applied basis,

without the need facially to invalidate the entirety of the

statute.

In any event, the dispute concerning whether to employ

the “no set of circumstances” Salerno standard or the “large

fraction” Casey standard is largely beside the point in this

case. Because the vast majority of the applications of New

Hampshire’s parental-notification statute raise no constitu-

tional concern, the statute would survive facial attack under

either standard. The court of appeals struck down the stat-

ute only by applying what amounts to an anti-Salerno stan-

dard, under which the possibility of a single unconstitutional

application doomed the statute in toto. That was error.

The court of appeals likewise erred in extrapolating from

this Court’s decision in Stenberg v. Carhart, 530 U.S. 914

(2000), a bright-line requirement that any statute regulating

abortion must contain an express health exception: that is,

an exception for cases in which an abortion, or a particular

type of abortion, is necessary to preserve the health of the

mother. Such a reading of Stenberg would be inconsistent

with numerous cases in which this Court has upheld paren-

tal-notification statutes without demanding that those stat-

utes contain an express health exception. Instead, under

Stenberg, an express health exception is necessary only in

those contexts in which the absence of such an exception it-

self represents an undue burden. The absence of a health

exception in some laws regulating abortion, such as a re-

cordkeeping statute, would in no way impose an undue bur-

den. Just as there is no need for a health exception to a re-

cordkeeping statute, so too there is no need for a general

health exception to a parental-notification statute. In cases

involving non-emergency health issues, compliance with the

statute’s notification (or judicial-bypass) procedures can oc-

cur without imposing any undue burden.

To be sure, constitutional difficulties may arise to the ex-

tent the statute is applied in the specific context of emer-

gency health risks, in which the emergency character of the

situation would not allow time for the notification or judicial-

bypass options to run their course. But it is the emergency

context specifically, not the health context more generally,

that creates potential difficulties. The courts below, how-

ever, appear to have faulted the statute for the absence of a

more general health exception and did not require any spe-

cific showing as to the frequency with which health-related

emergencies would arise. Respondents, for their part, pre-

sented no evidence to suggest that cases in which there will

be emergencies that would preclude the ordinary operation

of the statute constitute more than a small fraction of the

statute’s total applications, and thus provided no basis for

striking down the statute in all its applications.

Finally, respondents failed to demonstrate any deficiency

in the statute’s life exception, which provides that a doctor

may perform an immediate abortion upon concluding, in his

or her subjective professional judgment, that an abortion is

necessary to preserve the mother’s life. The court of ap-

peals’ decision to invalidate the statute on that basis was

thus also erroneous.

ARGUMENT

RESPONDENTS’ FACIAL CHALLENGE TO NEW

HAMPSHIRE’S PARENTAL-NOTIFICATION STAT-

UTE LACKS MERIT

I. RESPONDENTS WERE REQUIRED TO SHOW THAT

THERE IS NO SET OF CIRCUMSTANCES UNDER

WHICH THE STATUTE WOULD BE VALID

The court of appeals first erred by rejecting the State’s

contention that, in order te mount a successful facial chal-

lenge, respondents had to demonstrate that there was “no

set of circumstances” under which the New Hampshire pa-

rental-notification statute would be valid. That standard is

generally applicable to facial challenges, and there is no jus-

tification for departing from that standard here.

A. The “No Set of Circumstances” Test Is The Correct

Test For Facial Challenges

1. A facial challenge is “a claim that [a] law is ‘invalid in

toto—and therefore incapable of any valid application.’” Véil-

lage of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

10

455 U.S. 489, 494 n.5 (1982) (quoting Steffel v. Thompson, 415

U.S. 452, 474 (1974)). Because the remedy being sought in a

facial challenge is to invalidate the challenged statute in all

its applications, it logically follows that a plaintiff bringing a

facial challenge must show that the statute has no valid ap-

plication. This Court most clearly articulated that principle

in United States v. Salerno, 481 U.S. 739 (1987), in which the

Court stated that “{a] facial challenge to a legislative Act is,

of course, the most difficult challenge to mount successfully,

since the challenger must establish that no set of circum-

stances exists under which the Act would be valid.” Jd. at

745.

In the years since Salerno, the Court has applied the “no

set of circumstances” standard in a variety of contexts, in-

cluding in facial challenges to statutes regulating abortion.

See, e.g., Anderson v. Edwards, 514 U.S. 148, 155 n.6 (1995)

(state regulation concerning Aid to Families with Dependent

Children program); Reno v. Flores, 507 U.S. 292, 301 (1993)

(INS regulation governing release of detained alien juve-

niles); Rust v. Sullivan, 500 U.S. 173, 183 (1991) (HHS regu-

lations prohibiting federally funded projects from engaging

in abortion-related activities); Ohio v. Akron Ctr. for Reprod.

Health, 497 U.S. 502, 514 (1990) (Akron ID) (statute requiring

parental notification); Webster v. Reproductive Health Servs.,

492 U.S. 490, 523-524 (1989) (O’Connor, J., concurring in part

and concurring in judgment) (statute prohibiting use of pub-

lic facilities for performing abortions).

2. For two primary reasons, Salerno’s standard for facial

challenges should apply here, and the New Hampshire stat-

ute should be invalidated in its entirety only if it is unconsti-

tutional in all, rather than most or many, of its applications.

First, the Salerno standard is compelled by core limita-

tions on the scope of the judicial power, as well as by broader

separation-of-powers principles. Like other federal courts,

this Court “has no jurisdiction to pronounce any statute

1]

* * * void, because irreconcilable with the Constitution, ex-

cept as it is called upon to adjudge the legal rights of liti-

gants in actual controversies.” Liverpool, N.Y. & Philadel-

phia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33,

39 (1885). Because declaring a statute unconstitutional “is

the gravest and most delicate duty that this Court is called

on to perform,” Blodgett v. Holden, 275 U.S. 142, 148 (1927)

(opinion of Holmes, J.), the Court has noted that the power

to do so “is not to be exercised with reference to hypothetical

cases thus imagined,” United States v. Raines, 362 U.S. 17,

22 (1960). The Salerno standard ensures that a court will not

“frustrate the expressed will of Congress or that of the state

legislatures” by enjoining the enforcement of a law even in

situations in which such enforcement is, or would be, consti-

tutional. Barrows v. Jackson, 346 U.S. 249, 256-257 (1953).

And a proper respect for federalism complements the sepa-

ration-of-powers interests underlying the Salerno rule to the

extent that a plaintiff asks a federal court to invalidate a

state statute in its entirety before “state courts [have] the

opportunity to construe [the statute] to avoid constitutional

infirmities.” New York v. Ferber, 458 U.S. 747, 768 (1982);

see Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (noting

that the invalidation of a statute “prohibit{s] a State from

enforcing the statute against conduct that is admittedly

within its power to proscribe”’).

Second, Salerno provides a readily administrable standard

by which a court can evaluate the validity of a challenged

statute. If a court were required to determine whether a

statute was invalid in most or many of its applications, it

would have to “consider every conceivable situation which

might possibly arise in the application of complex and com-

prehensive legislation,” Barrows, 346 U.S. at 256, and make

a quantitative judgment based on the actual or hypothetical

application of the statute to parties not presently before it.

See Sabri v. United States, 541 U.S. 600, 609 (2004) (noting

12

that facial challenges “invite judgments on fact-poor re-

cords”); cf. Ferber, 458 U.S. at 768 (“By focusing on the fac-

tual situation before us * * *, we face flesh-and-blood legal

problems with data relevant and adequate to an informed

judgment.”) (internal quotation marks and footnotes omit-

ted). Difficult questions about defining the number of un-

constitutional applications in the “numerator” and the total

relevant universe of applications in the “denominator” would

abound. By requiring a court merely to determine whether

the plaintiff can show that the statute lacks a single valid

application, the Salerno standard obviates the need to count

(and weigh) the number of valia and invalid applications.

B. The Doctrine Of Overbreadth Applies Only To Facial

Challenges Under The First Amendment

1. The doctrine of overbreadth constitutes an exception

to the rule that “a person to whom a statute may constitu-

tionally be applied will not be heard to challenge that statute

on the ground that it may conceivably be applied unconstitu-

tionally to others.” Broadrick, 413 U.S. at 610. Under the

overbreadth doctrine, a person whose conduct is not consti-

tutionally protected may nevertheless challenge the consti-

tutionality of a statute. Brockett v. Spokane Arcades, Inc.,

472 U.S. 491, 508 (1985). Such a plaintiff by definition cannot

show that the statute is invalid in all of its applications (be-

cause the statute is not invalid as applied to the plaintiff).

The plaintiff thus need only demonstrate that the statute’s

overbreadth is “substantial * * *, judged in relation to the

statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at

615. The Court has stressed, however, that “{a]pplication of

the overbreadth doctrine * * * is, manifestly, strong medi-

cine,” and has employed that doctrine “sparingly and only as

a last resort.” Jd. at 613.

2. This Court has expressly stated that the doctrine of

overbreadth is applicable only in the “limited context” of

13

First Amendment speech claims. Salerno, 481 U.S. at 745;

accord Virginia v. Hicks, 539 U.S. 113, 118 (2003); Massa-

chusetts v. Oakes, 491 U.S. 576, 581 (1989); Schall v. Martin,

467 U.S. 253, 268 n.18 (1984).* Although the Court recently

suggested that it has “recognized the validity of facial at-

tacks alleging overbreadth (though not necessarily using

that term)” in other settings, Sabri, 541 U.S. at 609, the

cases cited by the Court from other contexts did not involve

“overbreadth” in the traditional sense, but instead involved

statutes that were invalid in all of their applications under

the relevant standards for evaluating the merits of the un-

derlying constitutional claims. For example, in Aptheker v.

Secretary of State, 378 U.S. 500 (1964), the Court held that a

statute that prohibited members of communist organizations

from obtaining passports was not narrowly tailored and

therefore infringed on the Fifth Amendment right to travel.

Id. at 505-514. Similarly, in City of Boerne v. Flores, 521

U.S. 507 (1997), the Court held that a statute that “ap-

pear{ed] * * * to attempt a substantive change in constitu-

tional protections” did not satisfy the congruence and pro-

portionality test for enforcement legislation under Section 5

of the Fourteenth Amendment. /d. at 529-536. None of this

Court’s cases has actually applied the strong medicine of the

overbreadth doctrine outside the First Amendment context.

3. There is no valid justification for extending the over-

breadth doctrine to abortion cases—and thus to privilege

access to an abortion over the panoply of constitutional

rights to which the overbreadth doctrine does not apply. To

be sure, the doctrine of overbreadth is justified by “the con-

cern that the threat of enforcement of an overbroad law may

deter or ‘chill’” constitutionally protected conduct by other

* The overbreadth doctrine does not apply even to all speech claims.

See, ¢.g., Bates v. State Bar of Ariz., 433 U.S. 350, 380-381 (1977) (commer-

cial speech).

14

regulated persons. Hicks, 539 U.S. at 119; accord Oakes, 491

U.S. at 581 (citing “the danger that an overly broad statute,

if left in place, may cause persons whose expression is consti-

tutionally protected to refrain from exercising their rights

for fear of criminal sanctions”). In noting that the over-

breadth doctrine is limited to the First Amendment context,

however, the Court has emphasized the fact that any “chill-

ing” of the exercise of First Amendment rights would

“harm[] not only [other regulated persons] but society as a

whole, which is deprived of an uninhibited marketplace of

ideas.” Hicks, 539 U.S. at 119. Even assuming that women

who wished to obtain abortions would be unwilling to “un-

dertake the considerable burden (and sometimes risk) of

vindicating their rights through case-by-case litigation,” the

unavailability of the overbreadth doctrine in the abortion

context does not have an impact on unregulated persons that

is analogous to the harm to the marketplace of ideas in the

First Amendment context. /bid.

_ Moreover, in the abortion context, any potential chilling

effect that flows from the need for access to courts before

plaintiffs suffer irreparable injury can be addressed directly

through other mechanisms that facilitate such access, and

should not be addressed indirectly by altering the standard

for facial challenges. As noted below, see pp. 25-28, infra,

the potential for constitutional difficulties with the New

Hampshire'statute lies not in the absence of an express gen-

eral health exception, but rather in the possible application

°® Such an assumption would be somewhat in tension with the Court’s

repeated reliance on the existence of judicial-bypass provisions as a basis

for sustaining abortion regulations. See, ¢.g., Akron II, 497 U.S. at 510-

517; Hodgson v. Minnesota, 497 U.S. 417, 461 (1990) (O'Connor, J., concur-

ring in part and concurring in judgment in part); id. at 497-501 (Kennedy,

J., concurring in judgment in part and dissenting in part); Planned Par-

enthood Ass'n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 490-493

(1983).

15

of the statute in the exigent circumstances of a health-

threatening emergency. Courts may be understandably re-

luctant to insist that a plaintiff suffer through an emergency

before the plaintiff can challenge a statute. But courts need

not change the rules for when a statute is invalid in its en-

tirety to allow early access to the courts.

Specifically, a plaintiff may seek declaratory or injunctive

pve-enforcement relief, in an individual or class action, on an

as-applied basis before irreparable injury has actually been

suffered—and obtain relief that reaches other, similarly

situated individuals. See Steffel, 415 U.S. at 474 (observing,

in upholding the availability of pre-enforcement declaratory

relief in an as-applied challenge, that “{a] declaratory judg-

ment of a lower federal court that a state statute is invalid in

toto—and therefore incapable of any valid application * * *

—will likely have a more significant potential for disruption

of state enforcement policies than a declaration specifying a

limited number of impermissible applications of the stat-

ute”); ef. Bresgal v. Brock, 843 F.2d 1163, 1170-1171 (9th Cir.

1987) (noting that “an injunction is not necessarily made

over-broad by extending benefit or protection to persons

other than prevailing parties in the lawsuit—even if it is not

a class action—if such breadth is necessary to give prevailing

parties the relief to which they are entitled”).° In addition,

as the court of appeals noted (Pet. App. 5 n.2), to the extent

that a woman may be deterred from bringing such a suit,

® Of course, a question of ripeness may arise in such an as-applied ac-

tion. Because respondents have brought only a facial challenge, however,

this case does not provide a suitable vehicle to address such questions

definitively. The salient point is that any concern about pre-enforcement

access to court can be addressed directly through the ripeness doctrine.

There is thus no need to address that concern indirectly by distorting the

distinct doctrine of facial challenges and providing that a state statute can

be struck down in its entiréty based on the mere possibility of some un-

sutional enoiicati

16

abortion clinics and doctors who perform abortions “rou-

tinely have jus tertii standing” to assert the rights of women

whose access to abortion is restricted. See, e.g., City of Ak-

ron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 440

n.30 (1983) (Akron 1); Singleton v. Wulff, 428 U.S. 106, 117

(1976) (plurality opinion); Planned Parenthood of Cent. Mo.

v. Danforth, 428 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S.

179, 188 (1973). And a lawsuit raising an as-applied chal-

leng : could proceed even after the woman had an abortion,

because challenges to statutes regulating abortion ordinarily

qualify for the exception to general mootness principles for

cases capable of repetition, yet evading review. Roe v.

Wade, 410 U.S. 113, 124-125 (1973). When taken together,

these doctrines directly address the problem of ensuring

early access to court, and thereby alleviate the need to ad-

dress the issue indirectly by distorting the facial-challenge

standard and invalidating a statute even in constitutionally

unproblematic contexts.

C. This Court’s Decision In Casey Did Not Alter The

Standard For Facial Challenges Outside The Context

Of Spousal-Notification Provisions

1. In Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992), the Court considered the con-

stitutionality of various provisions of the Pennsylvania Abor-

tion Control Act of 1982, including provisions that required a

woman to give her infor ned consent before having an abor-

tion; that required a minor to obtain the consent of one par-

ent; and that, with certain exceptions, required a married

woman to provide notice to her husband. The Court sus-

tained the constitutionality of the entire statute, except for

the spousal-notification provision. In Part IV of their joint

opinion, Justices O’Connor, Kennedy, and Souter concluded

that regulations that imposed an “undue burden” on a

woman's right to an abortion were unconstitutional, and set

17

out the “undue burden” test. /d. at 878. Specifically, the

joint opinion noted that “[aJn undue burden exists, and

therefere a provision of law is invalid, if its purpose or effect

is to place a substantial obstacle in the path of a woman

seeking an abortion before the fetus attains viability.” bid.

In Part V(C) of the joint opinion, Justices O’Connor, Ken-

nedy, and Souter (joined in that subpart by Justices Black-

mun and Stevens) applied the “undue burden” standard to

invalidate the spousal-notification provision. Jd. at 898. In

the course of that discussion, the Court noted that, “in a

large fraction of the cases in which [the provision] is rele-

vant, it will operate as a substantial obstacle to a woman’s

choice to undergo an abortion.” Jd. at 895. Elsewhere in

that part of the joint opinion, the Court twice noted that the

statute was likely to prevent a “significant number of

women” from seeking abortions. /d. at 893, 894.

2. The joint opinion in Casey did not purport to alter the

standard for facial challenges to all statutes regulating abor-

tion. At most, the joint opinion applied a distinct standard

for facial challenges to spousal-notification provisions. The

joint opinion made no reference to a “large fraction” stan-

dard in upholding any of the other provisions that were un-

der challenge, including the informed-consent and parental-

consent provisions. See, e.g., 505 U.S. at 881-887, 899-900.

Moreover, the joint opinion expressly noted, immediately

after its single reference to a “large fraction” of cases in its

analysis of the spousal-notification provision, that the same

method of analysis would not apply to parental-notification

and parental-consent provisions. See id. at 895. Accord-

ingly, outside the context of spousal-notification provisions,

Casey left the law of facial challenges unaffected, and thus

the default standard of Salerno applies. Indeed, even in the

portion of the opinion discussing the spousal-notification pro-

vision, the joint opinion did not so much as cite Salerno, de-

spite the fact that the Court had routinely applied the

18

Salerno standard in other, then-recent cases involving facial

challenges to statutes regulating abortion. See Rust, 500

U.S. at 183; Akron II, 497 U.S. at 514; Webster, 492 U.S. at

523-524 (O’Connor, J., concurring in part and concurring in

judgment). The joint opinion in Casey should thus not be

read to have overruled Salerno more broadly, and-to have

altered the standard for facial challenges to abortion regula-

tions more generally. See, e.g., Hohn v. United States, 524

U.S. 236, 252-253 (1998) (noting that “[oJur decisions remain

binding precedent until we see fit to reconsider them, re-

gardless of whether subsequent cases have raised doubts

about their continuing vitality”).

Il. RESPONDENTS’ FACIAL CHALLENGE LACKS

MERIT BECAUSE THE STATUTE WAS NOT RE-

QUIRED TO CONTAIN AN EXPRESS HEALTH EX-

CEPTION AND CONTAINED A SUFFICIENT LIFE

EXCEPTION

Regardless whether respondents were required to show

that the New Hampshire parental-notification statute was

invalid in all of its applications or merely a “large fraction” of

them, the court of appeals erred by sustaining respondents’

facial challenge and invalidating the entirety of the statute.

Respondents failed to demonstrate that the statute was defi-

cient either because it lacked an express health exception or

because it contained an excessively narrow life exception.

A. The Court Of Appeals Applied An Improper Standard

For Facial Challenges To Statutes Regulating Abor-

tion

1. As a preliminary matter, in sustaining respondents’

facial challenge on the ground that the New Hampshire pa-

rental-notification statute lacked an express health excep-

tion, the court of appeals suggested that the mere possibility

that the statute could be applied unconstitutionally was a

19

sufficient basis on which to invalidate the statute on its face.

Specifically, the court of appeals rejected the State’s conten-

tion that the statute’s judicial-bypass provision would suffi-

ciently protect a mother’s health, on the ground that “delays

of up to two weeks can * * * occur” if a minor invokes the

judicial-bypass provision. Pet. App. 17 (emphasis added).

The court of appeals’ reasoning, however, would seemingly

turn the Salerno standard entirely on its head, by allowing a

plaintiff to obtain facial invalidation of a statute by showing

the mere possibility of an unconstitutional application, rather

than demonstrating that the statute is unconstitutional in all

its applications—a virtual presumption of facial invalidity

that this Court has roundly rejected even in the unique con-

text of the First Amendment. See Ferber, 458 U.S. at 772

(“We have never held that a statute should be held invalid on

its face merely because it is possible to conceive of a single

impermissible application.”) (quoting Broadrick, 413 U.S. at

630 (Brennan, J., dissenting)); see generally Salerno, 481

U.S. at 745 (noting that “(the fact that [a statute] might op-

erate unconstitutionally under some conceivable set of cir-

cumstances is insufficient to render it wholly invalid”).

2. This Court has rejected similar reasoning in the spe-

cific context of parental-notification statutes. In Akron II,

this Court upheld a parental-notification statute despite a

claim that the statute’s judicial-bypass procedure “could take

up to 22 calendar days” and thus “increase by a substantial

measure * * * the medical risks of an abortion.” 497 U.S.

at 513. The Court reasoned that the lower court “should not

have invalidated the * * * statute on a facial challenge

based upon a worst-case analysis that may never occur,” and

added that “the mere possibility that the procedure may re-

quire up to 22 days in a rare case is plainly insufficient to in-

validate the statute on its face.” Jd. at 514. The court of ap-

peals likewise erred to the extent that it relied on a “worst-

20

case analysis” in facially invalidating the New Hampshire

statute.

B. This Court’s Decision In Stenberg Did Not Require

Every Statute Regulating Abortion To Contain An

Express Health Exception

The court of appeals also erred by reading this Court’s de-

cision in Stenberg v. Carhart, supra, to impose a per se re-

quirement that a statute regulating abortion must contain an

express “health” exception: that is, an exception for cases in

which an abortion, or a particular type of abortion, is neces-

sary to preserve the health of the mother. See, e.g., Pet.

App. 9, 10. Indeed, to the extent that the court of appeals

concluded that the statute was facially invalid because it

lacked a provision to account for the statute’s potential ap-

plication to situations implicating the health of the mother,

that also amounted to the adoption of an anti-Salerao stan-

dard, insofar as the court condemned the statute in its en-

tirety based on the mere possibility of some unconstitutional

applications.

1. In Stenberg, the Court considered a facial challenge to

a Nebraska statute that banned “partial birth abortion” (as

defined in the statute) unless the procedure was necessary to

save the life of the mother. The Court held that the statute

was invalid “for at least two independent reasons.” 530 U.S.

at 930. First, and more relevant here, the Court reasoned

that the statute was unconstitutional because it lacked an

express exception for the preservation of the health of the

mother. /d. at 930-938. Second, the Court reasoned that the

statute was unconstitutional because it could be read to

cover not just the “dilation and extraction” abortion proce-

dure commonly known as partial-birth abortion, but also the

more frequently used “dilation and evacuation” procedure,

and therefore posed an undue burden on a woman’s access to

an abortion. /d. at 938-946.

21

2. The Court did hold in Stenberg that the Nebraska

statute was in alid because it “lack{ed] any exception” for

cases in which the regulated procedure was necessary to

preserve the health of the mother. 530 U.S. at 930. The

Court, however, did not impose a bright-line requirement

that every statute regulating any aspect of abortion must

contain an express health exception, but instead required

the statute at issue to contain a health exception only after

determining, consistent with the “undue burden” test from

the joint opinion in Casey, that “substantial medical author-

ity support[ed] the proposition” that “[the] statute * * *

create[d] a significant health risk.” Jd. at 988. The Court

seemingly agreed with Nebraska that its statute “{did] not

require a health exception unless there [was] a need for such

an exception,” id. at 931, but disagreed with Nebraska’s

premise that there was no need for such an exception. See

id. at 932 (concluding, after reviewing the district court’s

“relevant findings and evidence,” that “the findings and evi-

dence support(ed]” the plaintiff). If the Court had imposed a

per se requirement that statutes regulating abortion contain

an express health exception, the Court’s analysis of the

“findings and evidence” would have been entirely unneces-

sary. Instead, the Court held that a health exception is nec-

essary when the absence of such an exception represents an

undue burden—and concluded, after reviewing the findings

and evidence in the record in that case, that the Nebraska

statute imposed such a burden.’

7 Stenberg similarly did not adopt a rule that a plaintiff can success-

fully bring a facial challenge to an abortion statute that does not contain an

express health exception if the plaintiff demonstrates that the statute

would impose a health risk on even a single woman. To the contrary, the

Court repeatedly noted that the critical question was whether the statute

would pose “significant health risks for women”—a formulation that is

better read (consistent with Casey, see 505 U.S. at 893, 894) to suggest

that the plaintiff must demonstrate that the statute would pose a substan-

tial health risk to at least a “significant” number of women. Stenberg, 530

22

3. The logical consequence of the court of appeals’ read-

ing of Stenberg would be that any statute touching on abor-

tion—even, for example, statutes imposing recordkeeping or

reporting requirements—would be required to contain an

express health exception. At a minimum, such a broad

reading would be irreconcilable with the many cases in which

this Court has upheld parental-notification (and parental-

consent) statutes without imposing such a requirement. See,

e.g., Lambert v. Wicklund, 520 U.S. 292, 293 & n.1, 299 (1997)

(per curiam); Akron II, 497 U.S. at 507, 510; Hodgson v.

Minnesota, 497 U.S. 417, 422, 423 (1990); Planned Parent-

hood Ass’n of Kansas City, Mo. v. Ashcroft, 462 U.S. 476,

479 n.4, 493 (1983) (opinion of Powell, J.).

Most notably, in Hodgson, the Court upheld a parental-

notification statute that lacked an express health exception

and was also similar in other respects to the statute at issue

here. Compare 497 U.S. at 423 n.1, 424 n.4, 426 nn.6-8, 427

n.9, with Pet. App. 2-6. Although the plaintiffs in Hodgson

did not contend that the statute was unconstitutional specifi-

cally because it lacked an express health exception, they did

contend that the judicial-bypass provision was necessary in

order to prevent minors whose health was at risk from de-

laying or forgoing abortions, see Cross-Resp. Br. at 15 &

n.29, Hodgson, supra (No. 88-1309), and the defendants

countered that there was no evidence that a delay of 48 or

even 72 hours was “medically significant,” see Cross-Pet. Br.

at 17-18, Hodgson, supra (No. 88-1309). In upholding the

U.S. at 932; see also id. at 931 (noting that “a State cannot subject

women's health to significant risks” and adding that “[ojur cases have

repeatedly invalidated statutes that * * * imposed significant health

risks”); id. at 938 (concluding that the statute at issue “creates a signifi-

cant health risk”); ibid. (suggesting that an express health exception is

required “where substantial medical authority supports the proposition

that banning a particular abortion procedure could endanger women’s

health”) (all emphases added).

23

parental-consent provision at issue in Casey, the joint opin-

ion cited Hodgson with approval. See 505 U.S. at 899. And

in Lambert, which postdated Casey, the Court again upheld

a parental-notification statute without suggesting that a

health exception was constitutionally required. See 520 U.S.

at 299." In Stenberg, the Court certainly provided no indica-

tion that it believed that the parental-notification statutes at

issue in those earlier cases were in fact unconstitutional to

the extent that they lacked express health exceptions—as

the Court presumably would have done if it had imposed a

blanket requirement that all statutes regulating abortion

contain such exceptions.

4. Although the courts below seemed to embrace the

view that all abortion statutes must contain a general health

exception, there is no justification for requiring such an ex-

ception, as opposed to a narrower exception for medical

emergencies, in the context of statutes (such as parental-

notification or informed-consent statutes) that impose pro-

cedural requirements with attendant waiting periods. In the

specific context of parental-notification statutes, there is no

inherent tension between the government’s underlying in-

terests—ensuring informed choice and parental involvement

when appropriate—and the mother’s undoubted interest in

preserving her health. In cases involving non-emergency

health issues, all of those interests can be vindicated without

difficulty. Potential tension arises only in cases implicating

health-related emergencies—and even then, the source of

the tension is not the notification requirement itself, but

rather the associated waiting period.

* The statute at issue in Lambert did contain a limited exception (not

otherwise discussed in the Court’s opinion) for cases in which “a medical

emergency exists and there is insufficient time to provide notice.” See 520

US. at 293 n.1 (quoting statute).

24

Thus, the absence of a general health exception in New

Hampshire’s statute does not pose an undue burden on a mi-

nor’s access to an abortion. In the numerous applications of

the statute in which no health issues arise, the statute’s noti-

fication, judicial-bypass, and waiting-period provisions oper-

ate without any constitutional concern. Likewise, when an

abortion is necessary to preserve tue minor’s health, but no

emergency or exigent circumstances exist, the statute raises

no difficulties. The New Hampshire statute ordinarily re-

quires a minor seeking an abortion to wait until 48 hours af-

ter notice is delivered, but allows notice (and the subsequent

waiting period) to be waived if the parent certifies in writing

that he or she has in fact been notified (as will presumably be

the case when the parent accompanies the minor). N.H.

Rev. Stat. Ann. § 132:26(1) (Supp. 2004). Moreover, under

the statute’s judicial-bypass provision, a minor can obtain a

waiver of the notice (and waiting-period) requirement (1) if

the minor is mature and capable of giving informed consent,

or (2) if performance of the abortion without notification is in

the minor’s best interests. Jd. § 132:26(11). When an abor-

tion is necessary to preserve the minor’s health on a non-

emergency basis, the abortion in many cases will be able to

be performed immediately (because the parent signs a certi-

fication), and in all other cases will be able to be performed a

short time later. Even in emergency situations, the statute

does not raise difficulties if the parent signs a certification,

and the statute expressly accounts for life-threatening situa-

tions. Especially in light of the State’s particular interest in

ensuring that a minor’s decision to have an abortion is

“knowing and intelligent,” Hodgson, 497 U.S. at 448 (opinion

of Stevens, J.), any burden imposed by the statute's possible

application to a subset of emergencies— which potentially

could be addressed in a pre-enforcement as-applied chal-

lenge, see pp. 13-16, swpra—is certainly not “undue.”

25

C. Respondents Failed To Demonstrate That Health

Emergencies Would Preclude The Ordinary Operation

Of The Statute In More Than A Small Fraction Of The

Cases To Which The Statute Applies

The New Hampshire parental-notification statute has the

potential to pose an undue burden within the meaning of this

Court’s cases only if it is applied in cases in which an abor-

tion is necessary to preserve the mother’s health on an

emergency basis. Cf. Casey, 505 U.S. at 879-880 (upholding

generally applicable “medical emergency” exception to

Pennsylvania abortion statute). Because respondents failed

to demonstrate, however, that medical emergencies would

arise in a significant fraction of the statute’s overall applica-

tions, much less that the ordinary operation of the New

Hampshire parental-notification statute would not accom-

modate emergency health risks in a significant fraction of

applications, the statute should be sustained against respon-

dents’ facial challenge.”

1. It is beyond dispute that, whatever the appropriate

standard for facial challenges, it is the plaintiff, and not the

defendant, who bears the burden of proof. See, e.g., Salerno,

481 U.S. at 745 (noting that “the challenger must establish

that no set of circumstances exists under which the Act

would be valid” (emphasis added)). Placing the burden of

proof on tne plaintiff is consistent with the venerable pre-

sumption of constitutionality that attends state statutes.

® Before the court of appeals, the State contended that “other New

Hampshire statutes allow medical providers to provide medical treatment

to minors in the case of an emergency.” Pet. C.A. Br. 14. The court of

appeals rejected that contention. Pet. App. 14-16. The following discus-

sion assumes arguendo that other New Hampshire statutes do not provide

a “medical emergency” exception.

26

See, e.g., O'Gorman & Young, Inc. v. Hartford Fire Ins. Co.,

282 U.S. 251, 257-258 (1931)."”

2. Respondents failed to demonstrate that emergency

health risks would preclude the ordinary operation of the

New Hampsture parental-notification statute in more than a

small fraction vi its applications. Since the court of appeals

held that the statute was per se invalid because it lacked an

express health exception, it did not discuss the factual record

at all. For its part, the district court made only one relevant

factual finding, determining that minors subject to the stat-

ute “could experience complications in their pregnancies that

would endanger their health.” Pet. App. 33 n.4. That obser-

vation, however, does little more than acknowledge the pos-

sibility of cases in which an immediate abortion may be nec-

essary to preserve the mother’s health. The district court

did not even attempt to quantify the number of such health

emergencies and compare them to the number of constitu-

tionally valid applications of the statute. Nor did the district

court consider how many such health emergencies would

arise in situations in which the parent could provide an im-

mediate certification or the minor could obtain a timely judi-

cial bypass, or how many such health emergencies could also

implicate the mother’s life (and thus trigger the statutory

life exception).

The only relevant evidence presented by respondents be-

fore the district court was the declaration of respondent Dr.

Wayne Goldner, who “describe[d] medical complications

which may occur during pregnancy putting pregnant minors

at risk and requiring prompt or immediate termination of the

This Court’s decision in Stenberg is not to the contrary. Stenberg did

not purport to place the burden of proof on the defendant, but instead

noted only that, after the plaintiff had presented “substantial medical

authority” demonstrating the need for an express heaiti exception, the

defendant had failed to present any evidence in rebuttal. See, ¢.g., 530

U.S. at 982, 937-938.

27

pregnancy.” Pet. App. 33 n.4. Dr. Goldner, however, merely

identified various health complications that could result if a

minor could not have an “immediate” abortion, see J.A. 23-

26, and made no effort to quantify the cases in which such

complications would occur—and indeed did not identify a

single case, from his two decades of experience, in which

such complications did in fact occur. In addition, Dr. Goldner

conceded that “[t}he majority of [his] teenage patients who

seek abortions (approximately 60 to 70 percent) bring a par-

ent with them to the appointment.” J.A. 22. In those cases

(and, presumably, in others), the minor would be able to have

an abortion without waiting for the statutory 48-hour notice

period to run because the parent could certify that he or she

had been notified. That concession alone suffices to demon-

strate that, even in the universe of cases involving medical

emergencies, the statute could operate without imposing an

undue burden in the majority of its applications.

Moreover, Dr. Goldner, like the court of appeals, noted the

hypothetical possibility that, if a minor sought to take advan-

tage of the judicial-bypass provision, “the abortion may be

delayed for a week, two weeks, and possibly longer.” J.A. 23

(emphasis added). Dr. Goldner did not affirmatively claim,

however, that the judicial-bypass provision—which by its

terms provides that access to the courts “shall be afforded

* * * 24 hours a day, 7 days a week,” N.H. Rev. Stat. Ann.

§ 132:26(11)(c) (Supp. 2004)—would be insufficient, in any

significant number of relevant cases, to preserve the health

of minors with emergency health complications that required

an abortion before the waiting period expired. Even if Dr.

Goldner had demonstrated that emergency health risks

would arise in more than a small fraction of cases, therefore,

he did not additionally demonstrate that those risks could

not be accommodated in some or all of those cases through

the ordinary operation of the statute (i.e., through prompt

parental certification or judicial bypass).

28

In sum, because respondents failed to show that emer-

gency health risks would preclude the ordinary operation of

the statute in more than a small fraction of the cases to

which the statute applies, respondents’ claim that the stat-

ute was facially invalid should have been rejected under any

standard. At most, the case should be remanded to allow

respondents to make the requisite factual showing.

D. Respondents Failed To Demonstrate That The Stat-

ute’s Life Exception Was Insufficient

Finally, the court of appeals erred by sustaining respon-

dents’ facial challenge on the alternative ground that the life

exception in the New Hampshire statute was insufficient.

1. The statute's life exception provides that notice is not

required if the doctor “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.” N.H. Rev. Stat. Ann. § 132:26(1) (Supp.

2004). The primary basis on which the court of appeals found

the life exception to be insufficient was that it “fails to safe-

guard a physician’s good-faith medical judgment that a mi-

nor’s life is at risk against criminal and civil liability.” Pet.

App. 21.

That conclusion was mistaken. The court of appeals cor-

rectly noted (Pet. App. 20) that the provision of the statute

imposing criminal and civil liability for violations lacks any

scienter requirement. See N.H. Rev. Stat. Ann. § 132:27

(Supp. 2004). Such a requirement, however, is unnecessary

here to protect good-faith judgments or to ensure that a doc-

tor has “broad discretion” to determine whether an abortion

is necessary to preserve the life of the mother. Colautti v.

Franklin, 439 U.S. 379, 394 (1979); accord United States v.

Vuitch, 402 U.S. 62, 69-72 (1971). Although the statute does

not contain an express scienter requirement, it does allow a

doctor to perform an abortion without notice if the doctor

29

certifies, in writing, that the abortion is necessary to pre-

serve the mother’s life. N.H. Rev. Stat. Ann. § 132:26(1)(a)

(Supp. 2004). By the plain terms of the statute, therefore,

when a doctor makes such a certification, the doctor is insu-

lated from liability. The statute at issue here is thus readily

distinguishable from the statute invalidated in the case on

which the court of appeals principally relied, Women’s Medi-

cal Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir.

1997), cert. denied, 523 U.S. 1036 (1998). In that case, the

relevant statutory provisions “contain[ed] both subjective

and objective elements[,] in that a physician must believe

that the abortion is necessary and his belief must be objec-

tively reasonable to other physicians.” Jd. at 204. The court

reasoned that the use of an objective standard, together with

the absence of a scienter requirement, was “especially trou-

blesome” for constitutional purposes. Jd. at 205. In this

case, by contrast, because a doctor is immune from liability

upon concluding that, in his or her subjective professional

judgment, an abortion is necessary to preserve the mother’s

life, the statute’s life exception is constitutionally sufficient.

2. The other basis on which the court of appeals found

the life exception to be insufficient was that “its time re-

quirement is drawn too narrowly.” Pet. App. 21. Specifi-

cally, the court of appeals reasoned that, because a doctor is

required to certify not only that the abortion is necessary to

preserve the life of the mother but also that there is insuffi-

cient time to provide the required notice, a doctor is effec-

tively forced “either to gamble with [his or her] patients’

lives in hopes of complying with the notice requirement be-

fore a minor’s death becomes inevitable, or to risk criminal

and civil liability by providing an abortion without parental

notice.” Jd. at 18-19.

The statute, however, does not force a doctor to make

such a choice. If a doctor believes at the outset that a minor

has a medical condition that is presently life-threatening, the

30

doctor can certify that an abortion is necessary without no-

tice, and proceed to perform the abortion. If, on the other

hand, the doctor believes that a minor has a non-emergency

medical condition that may later become life-threatening,

either the doctor can comply with the notice requirement or

the minor can take advantage of the statute’s judicial-bypass

provision. And if the doctor, after initially complying with

the statute’s notice requirement, subsequently determines

(before the waiting period has elapsed) that there is an im-

minent threat to the minor’s life, the doctor can then certify

that an abortion is necessary without notice, and proceed to

perform the abortion. Respondents thus have not demon-

strated that the life exception contains any ambiguity or de-

ficiency, let alone one that would justify the facial invalida-

tion of the entirety of New Hampshire’s parental-notification

statute.

CONCLUSION

The judgment of the court of appeals should be reversed,

and the case remanded for further proceedings.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

KANNON K. SHANMUGAM

Assistant to the Solicitor

General

MARLEIGH D. DOVER

CATHERINE Y. HANCOCK

Attorneys

AUGUST 2005