Amicus Curiae Brief — Gonzales v. PLANNED PARENTHOOD FEDERATION OF AMERICA, INC.

FILED

SS

OFFICE OF THE CLERK

SUPREME COURT, U.S._|

Supreme Court of the Wnited States

ALBERTO R. GONZALES, Attorney General,

Petitioner,

_—V.—

PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

~

BRIEF FOR AMERICAN CIVIL LIBERTIES UNION,

NEW YORK CIVIL LIBERTIES UNION, AND NATIONAL

ABORTION FEDERATION AS AMICI CURIAE

SUPPORTING RESPONDENTS

ELISABETH RYDEN BENJAMIN TALCOTT CAMP

GALEN LEIGH SHERWIN Counsel of Record

New YORK CIVIL LIBERTIES STEVEN R. SHAPIRO

UNION FOUNDATION LOUISE MELLING

125 Broad Street, [9th Floor BRIGITTE AMIRI

New York, New York 10004 AMERICAN CIVIL LIBERTIES

(212) 607-3300 UNION FOUNDATION

125 Broad Street, 18th Floor

New York, New York 10004

(212) $49-2633

TABLE OF CONTENTS

TAS Ge RF Ce Ci i ccrstceeecssnseccncecetenssnnmnenessinsiens il

INTEREST OF ABICT CURTAE...........0000ccscccoccssoseserecseesee 1

STATES CF BER CARE ncicsncccccccccescccccesccsscsecscesess 2

SUMMARY OF ARGUMENT................::0sescsseeseseeseseeeees 2

SEPT cntennscavsstenisnttansmenannentennmiintoninmeneee 5

I. Neither Casey’s “Large Fraction” Test

Nor Salerno’s “No Set of Circumstances”

Test Determines Whether the

I it 5

I]. After a Court Finds a Constitutional Violation,

It Must Fashion an Appropriate Remedy. ......... 10

Il]. The Government Incorrectly Claims That the

Ninth Circuit Altered the Standard for “As-

Applied” and “Facial” Challenges. ................... 14

SEIN ES viinntcccusectcccsiconinssniniineniininaiesniioieiiinemeiiits 19

TABLE OF AUTHORITIES

Cases

Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1983), rev'd in part on other

grounds by Casey, 505 U.S. 833 .........cccccseceessersesnenees 16-17

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) ............ 11

Ayotte v. Planned Parenthood,

es Te PEND Ce retirhterncncenteiesestcirpiencinianinseeniatetiisinmnel passim

Beil v. Hood, 327 U.S. 678 (1946) .............cccesscseossorsesesscesees 12

Califano v. Westcott, 443 U.S. 76 (1979).......ccccecceseesceeeeeeeees 4

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

cart. granted, 126 S. Ct. 1314 (QOGG)......0.0cccrccccrsccesceveseoccece 2

City of Chicago v. Morales,

ee es ee I erisenieennasncttasniatiiniinmsiantenniemmnepeiits seoseee 7,11

Clark v. Martinez, 543 U.S. 371 (2005)..........::cceeeeeeeeees 13,14

Colautti v. Franklin, 439 U.S. 379 (1979) .0.....ccccececeeeeeneeeees 11

Connecticut v. Menillo, 423 U.S. 9 (1975).......ccccccccserseseeeees 17

Edenfield v. Fane, 507 U.S. 761 (1993)........ccccccscsseeeeereeeres 15

HL. v. Matheson, 450 U.S. 398 (1981) .....cecceccecesseeee-es 16,17.

il

Hoffman Estates v. Flipside, 455 U.S. 489 (1982)..........00. *

Kolendar v. Lawson, 461 U.S. 352 (1983) ......:ccccccceeeeseeeeeeee 11

Marbury v. Madison, 1 Cranch 137 (1803)................::cceeeee 12

Minnesota v. Mille Lacs Band of Chippewa Indians,

Rs 0 IIIT diccntcerntsnetnicniccnnntinncniinbensumnenentncnnionia 10

National Abortion Federation v. Gonzales,

Ge ee ee es Be iccenectctcadsesccnecnsestntsvision 1,2, 10

Ohio v. Akron Center for Reproductive Health

Se I ee SE eninciciceninccnrnisninsctivintncsieniniuctennmenes 17, 18

Planned Parenthood Federation of Anierica, Inc. v.

Gonzales, 435 F.3d 1163 (9th Cir. 2006),

cert. granted, 126 S. Ct. 2901 (2006)..................... 2, 15, 16

Planned Parenthood v. Danforth,

es I cncinccncncnsrentennineninncninmvanedinnsicsniiinvabiains 14

Planned Parenthood v. Casey,

ee ee I scritnierrenienstintiinnitniiniegininanccesiniinigsings 5, 8, 9, 17

Reno v. Flores, S07 U.S. 292 (1993)...........0cceserscsossecsseeseees 7

Rust v. Sullivan, 500 U.S. 173 (1991) .00..000000 eee eee. 7, 17,18

Sabri v. United States, 541 U.S. 600 (2004) .0.........0cccccceeeseeee 7

Simopoulos v. Virginia, 462 U.S. 506 (1983) ...............- 18, 19

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

ill

Stenberg v. Carhart, 530 U.S. 914 (2000) ...........ccccc00ee 2, 15

The Employers’ Liability Cases (Howard v.

Illinois Central R.R. Co.), 207 U.S. 463 (1908)............... 11

Trade-Mark Cases (U.S. v. Steffens),

ee ee TE NIT ccercucinieneodaccseenneinsenedacnibideumipiaiiiiiaientiaas 11

United States v. Booker, 543 U.S. 220 (2005) ...........0006+ 3,10

United States v. National Treasury Employees Union,

FE Ses RIT ccciscicrincrtivioriaiitniniaindinadabiieuuiadneal 4

United States v. Salerno, 481 U.S. 739 (1987)............002000- 3,7

Virginia v. Hicks, 539 U.S. 113 (2003)........::cceseecseeesereeesseee 4

Webster v. Reproductive Health Services,

Ses TD csecniiniicincienscciiniinietsciitesdnienitalanisnappaiacdimadas 18

Statutes

Partial-Birth Abortion Ban Act of 2003,

PF El 0 Se cictncestviencsisiinsitincstctnniciniabzinimisiammeliannnall 1

Other Authorities

Adrian Vermeule, Saving Constructions,

Oy Bick Tr Ge i cccnctaldncbeidetcecinintsinaniiainan 4,13

iV

Matthew D. Adler, Rights Against Rules: The Moral

Structure of American Constitutional Law,

97 Mich. L. Rev. 1 (1998) ........ccccscesssesssessesssessessseseveene

Michael C. Dorf, Facial Challenges to State and

Federal Statutes, 46 Stan. L. Rev. 235 (1994).............

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INTEREST OF AMICI CURIAE'

The American Civil Liberties Union (“ACLU”) is a

nationwide, non-profit, non-partisan organization with over

500,000 members dedicated to defending the principles of

liberty and equality embodied in the Constitution and the

nation’s civil rights laws. The ACLU has a long history of

vigorously defending the right to privacy — including the

right to reproductive freedom — through litigation and

advocacy, and has frequently appeared before this Court as

both direct counsel and amicus curiae. The New York Civil

Liberties Union (“NYCLU”) is the New York state affiliate

of the ACLU.

The National Abortion Federation (“NAF’’), a non-profit

organization founded in 1977, is the medical professional

association of abortion providers in North America. Its

members include over 400 non-profit and private clinics,

women’s health centers, hospitals, and private physicians’

offices in 47 states. NAF’s members care for over half the

women who obtain abortions each year in the United States,

and they perform and teach abortion procedures that are

banned by the Partial-Birth Abortion Ban Act of 2003, 18

U.S.C. § 1531 (the “Act”). Represented by the ACLU and its

co-counsel, including the NYCLU, NAF is the lead plaintiff

in NAF v. Gonzales, 437 F.3d 278 (2d Cir. 2006), in which

the Second Circuit held the Act unconstitutional; ordered

supplemental! briefing on the question of remedy; but later

' No counsel for a party authored this brief in whole or in part, and no

person or entity other than amici and their counsel made any monetary

contribution toward the preparation or submission of this brief. Pursuant

to Rule 37.3, letters indicating the parties’ consent to the filing of this

amicus brief have been submitted to the Clerk of this Court.

stayed that briefing after this Court granted review in one of

the other challenges to the Act.

STATEMENT OF THE CASE

Fewer than four years after the Supreme Court struck ~

Nebraska’s ban on “partial-birth abortion,” Stenberg v.

Carhart, 530 U.S. 914 (2000), Congress passed the

challenged Act. In three separate cases, physicians and

medical providers — suing on behalf of themselves and their

patients — claimed that the Act suffers from the same

constitutional flaws as the Nebraska ban that this Court had

struck down: the failure to include an exception to protect

women’s health, and broad language that sweeps within it the

most common second-trimester, pre-viability abortion

procedures. All three trial courts and three appellate courts

to review the Act agreed that it violates the norms articulated

in Stenberg. See Planned Parenthood Fed’n of Am., Inc. v.

Gonzales, 435 F.3d 1163 (9th Cir. 2006), cert. granted, 126

S. Ct. 2901 (2006); Carhart v. Gonzales, 413 F.3d 791 (8th

Cir. 2005), cert. granted, 126 S. Ct. 1314 (2006); NAF v.

Gonzales, 437 F.3d 278. The NAF case is stayed pending

this Court’s review of the other two cases.

SUMMARY OF ARGUMENT

Under review are two of the three decisions in which

United States Courts of Appeals have held that the federal

“partial-birth abortion” ban flies in the face of this Court’s

recent ruling in Stenberg. Indeed, the Act fails in every

respect to meet the requirements this Court set forth in that

case. Rather than enact legislation conforming to this

Court’s clear commands, Congress simply declared that its

own “findings” trumped this Court’s conclusions. That

2 2

declaration is factually inaccurate and legally insufficient.

Unsurprisingly, every court to review the Act has held it

unconstitutional under Stenberg and the longstanding

precedent that Stenberg applied. The Briefs of Respondents

and of other amici in the two cases under review explain

fully why this Court should affirm. Amici submit this bref to

address specifically the Government’s argument that

Respondents cannot show that the Act violates their rights

and their patients’ rights unless they prove that it is

unconstitutional in all — or in at least a large fraction of — its

applications.

That argument is contrary to this Court’s precedent,

under which a plaintiff may prove that a law violates her

constitutional rights, without regard to the number or

proportion of the law’s applications that are unconstitutional.

Such “numbers” tests play a role not in determining whether

constitutional nights are infringed, but in determining — where

rights are infringed — how to remedy the violation. The

government’s argument that Respondents must meet some

numerosity test in order to prove that the Act violates their

and their patients’ rights must be rejected.

In addition to illustrating that principle -- that a plaintiff

need not meet any numerosity threshold in order to prove a

violation of rights ~ the Court’s decision in Ayotte v. Planned

Parenthood, \26 S. Ct. 961 (2006), reveals the basic template

for constitutional adjudication: first; even if implicitly,

determine that the plaintiff has standing; second, evaluate

whether there is a constitutional violation; and third — and

only if a constitutional violation has been found — determine

the proper remedy, such as facial invalidation or more limited

relief. See also, e.g., United States v. Book~r, 543 U.S. 220

(2005) (separating determination of constitutional! violation

3

and determination of remedy); United States v. Nat'l

Treasury Employees Union, 513 U.S. 454, 477-80 (1995)

(after holding restrictions on government employees’ receipt

of honoraria unconstitutional under First Amendment, the

Court considered the appropriate remedy); Califano-v.

Westcott, 443 U.S. 76, 89-91 (1979) (after holding that

government benefit program violated equal protection, the

Court assessed whether constitutional violation should be

remedied through nullification or extension of the benefits);

Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945,

1956 (1997) (after court holds challenged law

unconstitutional, it fashions the appropriate remedy).

The Court does not in every case explicitly delineate each

of these steps, or consider them in the order listed above. But

as an analytical matter, each inquiry is separate, and the

answer to each is determined by distinct criteria.” The

government’s brief, however, routinely injects numbers tests

into the analysis of whether a constitutional violation has

occurred, even though those tests relate not to that issue, but~

* In the context of First Amendment overbreadth cases, where the

challenger does not contend that the statute is unconstitutional as applied

to her, the only remedy the Court considers is total mvalidation. In that

situation, it makes sense that the Court addresses the constitutional

violation and the remedy in the same breath: to obtain facia! invalidation

— that is, to obtain the only relief available — the challenger must show

that the law punishes a substantial amount of protected free speech. See,

e.g., Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). But analytically,

there are stil] two separate inquiries. The question of whether the law

“punishes ... protected free spwech” relates to the constitutional violation.

See, e.g., id. at 118, 122-23 (determining that the challenged policy would

not affect any First Amendment activity). The “substantial amount” (the

“numbers” test) relates to whether facia] invalidation is appropriate, i.e.,

relates to remedy. See, e.g., id. at 120 (considering “whether the claimed

overbreadth . . . is sufficiently ‘substantial’ to produce facial invalidity”).

4

relate rather to the issue of remedy. Specifically, the

government insists that Respondents must meet the “no set of

circumstances” test enunciated in United States v. Salerno,

481 U.S. 739 (1987), or at least the “large fraction” test

developed in Planned Parenthood v. Casey, 505 U.S. 833

(1992), in order to prove that the Act violates their rights.

Pet. Br. at 9, 16 (PPFA); Pet Br. at 18-19 (Carhart). But in

both Ayotte and Casey, the Court found a constitutional

violation, regardless of the fact that the number of women for

whom the challenged law was unconstitutional was very

small. Indeed, the plaintiffs in those cases did not need to

meet any “numbers” test to prove that the provisions in

question were constitutionally infirm. Accordingly, as

explained in Point I, infra, Respondents here need not meet

any “numbers” test in order to prove that the Act violates

their nghts and the rights of their patients.

The government’s other assertions are equally meritless.

As explained in Point II, infra, and as this Court

demonstrated in Ayotte, the Salerno and “large fraction” tests

are not the exclusive tests for facial invalidation, and are not

thresholds a plaintiff ever needs to meet in order to obtain

partial invalidation. Finally, as discussed in Point III, infra,

the government's assertion that the Ninth Circuit’s decision

below altered the standard for facial challenges to abortion

restrictions is incorrect and inapposite.

ARGUMENT

I. Neither Casey’s “Large Fraction” Test Nor

Salerno’s “No Set of Circumstances” Test

Determines Whether the Act Is Unconstitutional.

A court’s analysis of whether a statute is constitutionally

5

infirm is independent of how many — or how few —

applications of a challenged law are unconstitutional. Yet the

government erroneously suggests that to prove the Act is

constitutionally infirm, Respondents must demonstrate, under

Salerno, “that the statute is invalid in a// its applications” or

that, under Casey, the Act would impose medical risks on “at

least a ‘large fraction’ of women covered by the statute.”

Pet. Br. at 18-19 & n.3 (Carhart); see also Pet. Br. at 9

(PPFA). In other words, the government claims that proving

a constitutional violation depends on how many applications

of a challenged law are invalid. See Pet. Br. at 9 (PPFA)

(“[T]Jhe relevant inquiry” when evaluating the

constitutionality of an abortion restriction that lacks a health

exception is whether “it places a substantial obstacle in the

path of a woman seeking an abortion, in a large fraction of its

applications”); see also Pet. Br. at 16-17 (PPFA); Pet. Br. at

19-20 (Carhart). As this Court’s precedents demonstrate, the

“no set of circumstances” test and Casey’s “large fraction”

test simply do not bear on the analysis of whether a statute

infringes constitutional rights. In general, quantifying

unconstitutional applications comes into play only if and

when a court has found a constitutional! violation, and then

proceeds to fashion a remedy.

The Court’s recent decision in Ayotte demonstrates this

principle. The plaintiffs in Ayotte claimed that a requirement

that physicians notify a minor’s parents before performing an

abortion was unconstitutional because it failed to include an

exception for medical emergencies. The Court held that the

law unconstitutionally jeopardized minors’ health, even

though “pregnant minors, like adult women, need immediate

abortions to” protect their health in only “some very small

percentage of cases.” 1268S. Ct. at 967 (emphasis added).

The Court thus found a constitutional violation, even though

6

“fojnly a few applications of . . . [the] statute would present —

[such] a... problem.” /d. at 967, 969.

This Court’s approach in Salerno is consistent with

Ayotte. While there is debate over the precise meaning,

application, and principles embodied in Salerno’s “no set of

circumstances” test, this Court has never held that it plays a

role in determining whether a statute violates constitutional

rights. For example, members of this Court and scholars

have understood the Sa/erno test as a bar to overbreadth

standing. See, e.g., Sabri v. United States, 541 U.S. 600, 609

(2004); City of Chicago v. Morales, 527 U.S. 41, 55 n.22

(1999) (Opinion of Stevens, J., Souter, J., and Ginsburg, J.);

see also Michael C. Dorf, Facial Challenges to State and

Federal Statutes, 46 Stan. L. Rev. 235, 261 (1994) (Salerno

itself recognized that First Amendment overbreadth doctrine,

which relaxes normal standing rules, is an exception to the

Salerno test). The “no set of circumstances” test is also

thought to function as one measure of when total (“facial’’)

invalidation is the appropriate remedy.’ See, e.g., Salerno,

481 U.S. at 745 (“fact that [law] might operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid’)

(emphasis added); see also Morales, 527 U.S. at 80 n.3

(Scalia, J., dissenting) (Salerno rule relates to appropriateness

* Salerno has, on occasion, been invoked in other contexts as well -

though never in the context of determining whether a constitutional

violation has occurred. See, e.g., Rust v. Sullivan, 500 U.S. 173, 183

(1991) (citing Salerno in discussion of constitutional avoidance); Reno v.

Flores, 507 U.S. 292, 300-01 (1993) (citing Salerno in recognizing that

plaintiffs’ challenge was based only on text of regulation, not the history

of its enforcement, since it had been in effect for only one week before

district court enjoined it).

of facial invalidation as a remedy, not to standing: a “statute

is not totally invalid unless it is invalid in al] of its

applications”) (emphasis added); see also Matthew D. Adler,

Rights Against Rules: The Moral Structure of American

Constitutional Law, 97 Mich. L. Rev. 1, 154-56 (1998)

(characterizing Salerno’s “no set of circumstances” test as a

mechanism for facial invalidity). The one inquiry that is not

affected by the “no set of circumstances” test is whether the

challenged statute violates a party’s constitutional rights.

Indeed, this Court has never held that a party must meet the

“no set of circumstances” test —- or any other numerosity

threshold — for that purpose.

Casey offers yet another example of how this Court has

traditionally and consistently determined whether an abortion

statute violates the Constitution without regard to how many

applications are unconstitutional, including the “large

fraction” test enunciated in Casey itself.* Specifically, the

Casey Court held that a spousal notice requirement for

abortion violated the relevant constitutional standard — the

“undue burden” test — despite the fact that the requirement

affected only one percent of women obtaining abortions. 505

U.S. at 893-94 (holding that spousal notice provision would

“impose a substantial obstacle” to abortion for women in

abusive marriages). The numbers were thus irreievant to

whether the requirement violated the Constitution. The

“large fraction” test came into play only when the Court

turned to the question of remedy, and determined that total

invalidation was appropriate because of the provision’s broad

* Even the government at times recognizes that the “large fraction” test is

a test for facial invalidation —1.e., remedy — in abortion cases. See, e.g.,

Pet. Br. at 18 (PPFA), Pet. Br. at 14 (Carhart).

impact on battered spouses.” /d. at 895 (emphasis added);

see also infra Point I.

In addition, the Casey Court demonstrated the

independence of constitutionality from remedy (and from

“numbers” tests) when it considered the medical emergency

exception to the omnibus abortion restriction challenged in

that case. The plaintiffs claimed that the law’s medical

emergency exception was so narrowly drawn that it

“foreclose[d] the possibility of an immediate abortion” in

certain medical emergencies. 505 U.S. at 880. The Court

rejected that interpretation, holding that the exception would

apply in all medical emergencies. In adopting this saving

construction, however, the Court recognized that the medical

emergency exception would otherwise be unconstitutionally

narrow, and the Court “would be required to invalidate the

restrictive operation of the provision.” /d. Implicit in that

conclusion is that an exception that did not encompass all

medical emergencies would violate the Constitution —

regardless of the fact that such emergencies occur

infrequently.

In this case as well, the analysis of whether the Act

violates the Constitution is unaffected by either Salerno’s

“no set of circumstances” test or Casey’s “large fraction”

test. Indeed, this principle is illustrated by the two-tiered

* The government incorrectly claims that the “large fraction” test is

limited to evaluation of spousal notice requirements for abortion. Pet. Br.

at 16 (PPFA). The reason that the Casey Court applied the “large

fraction” remedy test only tn relation to the spousal notice requirement

was that it upheld the constitutionality of the other challenged provisions,

and thus never reached the question of remedy as to those provisions.

approach employed by the Ninth Circuit in its decision

below, and by the Second Circuit in NAF v. Gonzales, 437

F.3d 278 (holding Act unconstitutional for lack of health

exception and deferring ruling on remedy until after

additional briefing). This Court should likewise reject the

government’s attempt to inject a numerosity threshold into

the evaluation of whether the Act is constitutionally

defective.

II. After a Court Finds a Constitutional Violation, It

Z Must Fashion an Appropriate Remedy.

Upon finding a constitutional violation, a court must

determine how to remedy the constitutional defects. The

Ayotte Court outlined grounds on which a plaintiff can obtain

facial invalidation, even where a law is unconstitutional in

only a small percentage of its applications. Facial

invalidation is the proper course (1) where crafting a

narrowing remedy would require making distinctions in a

“murky constitutional context,” which may invade the

legislative domain; (2) where “line-drawing is inherently

complex,” which may likewise invade the legislative domain;

or (3) where severing unconstitutional applications is

contrary to legislative intent.° Ayotte, 126 S. Ct. at 968.

* The government incorrectly suggests that these factors should be

relaxed in this case because, “to the extent that federalism concerns

inform those limits on judicial competence, such concerns are

inapplicable in the context of a federal statute.” Pet. Br. at 41 n.10

(PPFA). As the Ayotte Court demonstrated by its reliance on numerous

cases reviewing federal statutes, these “limits on judicial competence,”

id., also apply when federal legislation is at issue to prevent

encroachment on the legislative branch. 126 S. Ct. at 968 (citing, inter

alia, Booker, 543 U.S. at 227 (reviewing federal statute); Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999)

10

Indeed, where a limited injunction is contrary to

legislative intent, the law must be struck down on its face —

regardless of whether it is constitutional in most of its

applications. Jd. at 968-69. The Ayotte Court also counseled

against substitution of the “judicial for the legislative

department of the government”:

[W]e are wary of legislatures who would rely

on our intervention, for it would certainly be

dangerous if the legislature could set a net

large enough to catch all possible offenders,

and leave it to the courts to step inside to

announce to whom the statute may be applied.

Id. (internal quotation marks omitted). Contrary to the

government’s suggestion, therefore, Ayotte makes clear that

Salerno’s “no set of circumstances” test and Casey’s “large

fraction” test are not the exclusive tests for facial

invalidation.’ Pet. Br. at 13, 18 (PPFA); Pet. Br. at 18-19

(Carhart).

(reviewing federal executive order); Alaska Airlines, Inc. v. Brock, 480

U.S. 678, 684 (1987) (reviewing federal statute); The Employers’

Liability Cases (Howard v. Illinois Central R.R. Co.), 207 U.S. 463, 501

(1908) (same); Trade-Mark Cases (U.S. v. Steffens), 100 U.S. 82 (1879)

(same)).

” In addition, facial invalidation is appropriate if an unconstitutionally

vague statute would reach “a substantial amount of constitutionally

protected conduct.” Kolendar v. Lawson, 461 U.S. 352, 358 n.8 (1983)

(quoting Hoffman Estates v. Flipside, 455 U.S. 489, 494 (1982)). Facial

invalidation of a vague statute is appropriate even “when [a statute] could

conceivably have had some valid application.”” Kolendar, 461 U.S. at

358 n.8 (citing Colautti v. Franklin, 439 U.S. 379, 394-401 (1979)); see

also Morales, 527 U.S. at 51, 64 (facially invalidating unconstitutionally

vague statute).

1]

It is equally clear from Ayotte that a plaintiff who has

established the unconstitutionality of the challenged statute is

entitled to some relief even if facial invalidation is deemed

inappropriate. See, e.g., Bell v. Hood, 327 U.S. 678, 684

(1946) (“[W]here federally protected rights have been

invaded, it has been the rule from the beginning that courts

will be alert to adjust their remedies so as to grant the

necessary relief.” (citing Marbury v. Madis 2n, 1 Cranch 137,

162-63 (1803))). Moreover, a plaintiff's entitlement to some

relief from an unconstitutional statute does not depend on

meeting either Salerno’s “no set of circumstances” test or

Casey’s large fraction test.

The government ultimately concedes as much. Pet. Br. at

49-50 (Carhart) (if the “Court were to identify some aspect

in which the Act is invalid, it may be possible to craft

narrower injunctive relief”); see also Pet. Br. at 40 (PPFA)

(same). It is a wise concession. After the Ayotte Court held

that the Constitution required a medical emergency exception

in the challenged parental notification law, it remanded for

the determination of whether — consistent with legislative

intent — a narrow injunction might be crafted. 1265S. Ct. at

969. The Court held that the plaintiffs were entitled to at

least such relief, notwithstanding that the law was

constitutional in all but “some very small percentage of”

applications. Jd. at 967.

In the face of the Act’s constitutional infirmity, and the

Ayotte Court’s holding that a court must craft a remedy after

finding a constitutional violation, the government

nevertheless proposes — albeit cursorily — that if the Court

“conclude[s] that the Act is unconstitutionally vague [or] . . .

overbroad,” it should simply “issue a narrowing construction

12

to avoid any constitutional infirmity.” Pet. Br. at 39 (PPFA);

see also id. at 36. But such a saving construction is by

definition something a court adopts in order to avoid ever

making the constitutional determination, and not something a

court could adopt once it has made the determination that a

law is infirm.’ Moreover, the government has not proposed

any construction that would save the Act,” let alone one to

which the Act is “reasonably susceptible” or that is consistent

with legislative intent. See, e.g., Clark v. Martinez, 543 U.S.

371, 385 (2005) (“The canon of constitutional avoidance

comes into play only when . . . the statute is found to be

* See Vermeule, Saving Constructions, 85 Geo. L.J. at 1949, 1959

(“modern avoidance . . . emphatically declines to decide a constitutional

question”); see also Clark, 543 U.S. at 381 (“The canon [of constitutional

avoidance] is not a method of adjudicating constitutional questions by

other means.”). As Ayotte demonstrates, the proper course once a court

has found a violation is to fashion a remedy, which may be a hmited

myunction reaching only unconstitutional applications of the challenged

law. Although the difference is subtle, a “narrowing” or “saving”

construction 1s analytically distinct from a limited injunction. Both must

be consistent with legislative intent, but they are otherwise subject to

different standards: while a saving construction must be an interpretation

to which the law is “reasonably susceptible,” a lirmted injunction is

appropriate if it satisfies the factors discussed in Ayotte. See supra at 10-

12. Thus, if a court reaches the constitutional question, and finds a

violation, it must then fashion a remedy, either partial or facial

invalidation, and not — as the government suggests — adopt a saving

construction. See Vermeule, 85 Geo. L. J. at 1950.

"he government's only concrete suggestion involves reading the statute

to require a “specific intent to deliver the requisite portion of the fetus for

the purpose of performing the ultimate lethal act at the outset of the

procedure.” Pet. Br. at 47 (Carhart); see also Pet. Br. at 32 (PPFA). For

the reasons discussed in Respondents’ briefs, this construction must be

rejected. See Br. of Respondents at 42-45 (Carhart); Br. of Respondents

(PPFA).

13

susceptible of more than one construction; and the canon

functions as a means of citoosing between them.”); id. at 382

(a limiting construction under the canon of constitutional

avoidance is a “means of giving effect to congressional

intent, not of subverting it”). Accordingly, and for the

reasons set forth in Respondents’ briefs, the Court should

affirm the Ninth Circuit’s holding that the Act is

unconstitutional; then turn to the question of re 2edy; and

affirm that the appropriate remedy in this case is facial

invalidation.

Ill. The Gevernment Incorrectly Claims That the

Ninth Circuit Altered the Standard for “As-

Applied” and “Facial” Challenges.

The government incorrectly claims that the Ninth Circuit

“misstates both the facial-challenge standard and the

substantive standard,” with “[t}he practical effect ... that...

there is no meaningful distinction between as-applied and

facial challenges.”’° Pet. Br. at 17 (PPFA). The government

'° The government's use of the terms “facial” and “as-applied” is

confusing because these terms can be used in at least three ways. First, a

statute has a “facial defect” if, by its very words, it is at odds with the

Constitution. Thus, a statute requiring parental consent for minors’

abortions that contains no judicial bypass mechanism has a “facial

defect.” See, e.g., Planned Parenthood v. Danforth, 428 U.S. 52, 72-75

(1976). By contrast, a statute may be unconstitutional “as applied” even

if it contains no “facial defect” because the government's manner of

enforcement violates the Constitution. A second sense of “facial” and

“as-applied” relates to the remedy fashioned by the court: “facial

invalidation” means that the government is barred from enforcing a

Statute in its entirely, while “as-applied invalidation” means that the

government is barred from enforcing a statute only im certain

applications. See, e.g.. Ayotte, 126 S. Ct. at 968. A third meaning relates

to whether the statute is unconstitutional “as-applied” to the particular

plaintiffs bringing the challenge based on certain facts they allege. See,

14

completely misreads the decision of the Ninth Circuit, which

in no way altered the standard for facial or as-applied

challenges; indeed, the portion of the court s opmion the

government cites is focused exclusively on the substantive

constitutional standard.’ PPFA, 435 F.3d at 1172

e.g., Edenfield v. Fane, 507 U.S. 761, 780 (1993) (O’Connor, J.,

dissenting) (one sense of “as-applied challenge” is where the challenger

points to some “special feature[{]” of his case). The government confuses

these meanings when, for example, it claims that the Ninth Circuit

“injected an erroneous conception of facial challenges into its view of the

relevant substantive test.” Pet. Br. at 16 (PPFA). The government first

seems to use the phrase “facial challenge” to discuss whether facial

invalidation is appropriate, id. (referencing Salerno’s “no set of

circumstances” test and Casey’s “large fraction” test), but then employs

that phrase in the third sense, to discuss whether a particular plaintiff can

bring a challenge based on certain facts that she alleges, id. at 17.

'' The government seizes on the Ninth Circuit's use of the phrase “no

circumstance exists” in its enunciation of the substantive standard for

evaluating abortion restrictions that lack a health exception. Pet. Br. at

16-17 (PPFA) (citing PPFA, 435 F.3d at 1172 (“Stenberg holds that an

abortion regulation that fails to contain a health exception is

unconstitutional except when there is a medical consensus that no

circumstance exists in which the procedure would be necessary to-

preserve a woman's health.””)). The government claims that by using this

phrase, the Nimth Circuit “injected an erroneous conception of facial

challenges into its view of the relevant substantive test.” /d. at 16. In

other words, the government implies that the Ninth Circuit turned Salerno

on its head by suggesting that a plaintiff could obtain total invalidation of

a statute simply by proving one unconstitutional application. But this ts

not what the court did: in the passage the government cites, the court

analyzed whether the Act violated the Constitution under Stenberg, not

whether the Act should be faciaily invalidated on the basis of that

violation. PPFA, 435 F.3d at 1172 (citing Stenberg, 530 U.S. at 937); see

also, e.g., Ayotte, 126 S. Ct. at 967 (finding constitutional violation where

“some very smail percentage” of circumstances exists in which minors

“need immediate abortions to avert . . . damage to their health”). Thus,

unlike the government, see supra at 5-10, the Ninth Circuit analyzed the

constitutional violation of the Act separately from the remedy. See

15

(enunciating standard for evaluating whether the Act’s lack

of a health exception rendered the Act constitutionally

infirm).

The government suggests that based on the Ninth

Circuit’s ruling, a hypothetical plaintiff who does not claim

her health is jeopardized by the Act could somehow obtain

facial invalidation of the Act after demonstrating that it

would endanger the health of another woman. Pet. Br. at 17

(PPFA). This is wrong: such a challenge would be dismissed

for lack of Article II] standing because the plaintiff could not —

prove that she suffered injury-in-fact. See H.L. v. Matheson,

450 U.S. 398, 405-07 (1981) (minor plaintiff, who did not

allege that she was mature or emancipated, lacked Article III

standing to challenge parental notification statute as to

minors who were mature or emancipated) (cited by the

government, Pet. Br. at 17-¢PPFA), notwithstanding that H.L.

demonstrates the fallacy of the government’s hypothetical

scenario). This hypothetical situation is irrelevant where, as

here, Respondents have Article III standing’? — because they

suffer injury-in-fact — and may, consistent with prudential

concerns, raise the constitutional rights of their patients

harmed by the Act. See Singleton v. Wulff, 428 U.S. 106,

112-13 (1976) (physician plaintiffs suffer “concrete injury

from operation of the challenged statute”); Akron v. Akron

Ctr. for Reprod. Health, 462 U.S. 416, 440 n.30 (1983)

(holding physician plaintiffs have standing and may raise

rights of patients, and distinguishing physician’s standing

from minor plaintiff's lack of standing in H.L.), rev d in part

PPFA, 435 F.3d at 1184-91 (after holding Act unconstitutional, the court

fashioned a remedy).

'? Neither the government nor any court has ever suggested otherwise.

16

on other grounds by Casey, 505 U.S. 833; see also Casey,

505 U.S. at 845 (implicitly recognizing Article III and third-

party standing of clinics challenging abortion restrictions to

raise the claims of their patients).

The government also claims that “this Court has

repeatedly upheld applications of abortion regulations to

particular plaintiffs while still recognizing the potential for 2

other, unconstitutional applications.” Pet. Br. at 17 (PPFA)

(emphasis added); see also Pet. Br. at 19-20 (Carhart).

While it is true as a general principle that a court can uphold

applications of a statute to a particular plaintiff, that assertion

is irrelevant where, as here, the plaintiffs have proved that the

law would violate their nghts and their patients’ nghts.

Moreover, with the exception of Connecticut v. Menillo,'°

none of the cases the government cites in fact upholds a

statute’s application to certain plaintiffs. As noted above, the

H.L. holding on which the government relies relates to

standing. See Pet. Br. at 17 (PPFA) (citing H.L., 450 U.S. at menenane

405-07). In both Ohio v. Akron Center for Reproductive

Health (Akron IT), on which the government relies, see Pet.

Br. at 20 (Carhart); Pet. Br. at 17 (PPFA), and Rust v.

Sullivan, on which its amici rely, Br. of the States of Texas,

et al. at 23 (Carhart); Br. of the Christian Medical «nd Dental

Associations, et al. at 12 (PPFA), the Court engaged in

constitutional avoidance: it ruled against the plaintiffs by

construing the challenged laws so as to avoid constitutional

"> Connecticut v. Menillo, 423 U.S. 9 (1975), is entirely consistent with

the Court’s decision in Ayotte. The Court in Menillo held that

Connecticut’s pre-Roe v. Wade crimimal abortion statute could be applied

to a non-physician who performed an abortion. /d. at 11. Limiting the

statute’s application to non-physicians involved line drawing that was not

“mherently complex.” Ayotte, 126 S. Ct. at 968.

17

difficulties,'* with no indication that the outcome would have

been different had the same case, before the statute was

enforced, been brought by different plaintiffs.'° See, e.g.,

Dorf, Facial Challenges to State and Federal Statutes, 46

Stan. L. Rev. at 273 (Akron IJ holding and Justice

O’Connor’s concurrence in Webster rested on constitutional

avoidance). Similarly, in Simopoulos v. Virginia, 462 U.S.

506, 510 (1983), also cited by the government, Pet. Br. at 17

(PPFA), Pet Br. at 20 (Carhart), the failure of the

constitutional claims was wholly unrelated to the standard for

facial challenges: it related instead to defective pleading. In

that case, the criminal defendant failed to articulate an

adequate basis for his challc age to the abortion statute under

which he was charged, and the Court also rejected the claim

'* Akron II, 497 U.S. 502, 513-14 (1990) (rejecting claim that judicial

bypass in parental consent law was constitutionally inadequate because

plaintiffs’ statutory interpretation — that bypass could take twenty-two

days ~ was unsupported and ignored provision permitting minor to

request expedited proceedings); Rust, 500 U.S. at 195 (rejecting

plaintiffs’ challenge because the Court construed the regulation to avoid

constitutional problem that would arise from prohibiting referrals for life-

saving abortions in federally funded clinics); see also Webster v. Reprod.

Health Servs., 492 U.S. 490, 523-24 (1989) (O’Connor, J., concurring in

part and concurring in the judgment) (rejecting plaintiffs’ interpretation

that “the State could try to enforce the ban” on using a “public facility”

for abortions “against private hospitals using public water and sewage

lines, . . . equipment or . . . land,” where “straightforward” applications of

the ban were constitutional (emphases added)).

' Though the Court in Akron I/ did not “uph{o]ld applications” of the

statute at issue “to particular plaintiffs,” as the government claims, Pet.

Br. at |7 (PPFA), it left open the possibility of a challenge based on

unconstitutional enforcement of the statute. 497 U.S. at 514. While

unconstitutional enforcement of a statute is encompassed in one meaning

of the phrase “as-applied challenge,” see supra at 14 n.10, that is not the

meaning that the government employs in its discussion of Akron II. See

Pet. Br. at 17 (PPFA).

18

that his indictment was constitutionally deficient. /d. at 509,

517-18. Thus, there is no support for the government’s claim

that the Ninth Circuit altered the standard for facial

challenges, or that this Court’s prior abortion jurisprudence

has “routinely” upheld abortion regulations as applied to

particular plaintiffs.

CONCLUSION

For the reasons set forth above, and in the Briefs for the

Respondents, the Court should affirm the judgments of the

courts of appeals.

Respectfully submitted,

TALCOTT CAMP

Counsel of Record

STEVEN R. SHAPIRO

LOUISE MELLING

BRIGITTE AMIRI

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street, 18th Floor

New York, New York 10004

(212) 549-2633

ELISABETH RYDEN BENJAMIN

GALEN LEIGH SHERWIN

NEw YORK CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street, 19th Floor

New York, New York 10004

(212) 607-3300

September 20, 2006

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