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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0253%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 939

## Text

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).............

;
Y me 93S" ee Ee el © a 2
a age tse CT a eee
7 Db ee ri aes 7 y ce
oe 7 | = £,~

‘2

Lt eter eT dl

“ae

* —} J
ant ys y ing cain ae, J as
et Teh i al
oa.sg gilt
— 7

;

re Ody
te! ele Ps

ie . ea
a= te = ae : 7 4 : : : lal ee oe

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

19

SRESCRSSRRESESSCKERRESSESRKSERER SASSER STEERER SRESERERERESESRESERREEREREREREREREREEERERERERRSEERE Eee
SESSSCSSKSESSSSSRSERSESSSTSSES SRS CRESTS SECRETE ERE EEEEE EEE REE eee
SESS ECSRSRSASKSERSSEERSSSESKRSCRSKERTEREKSSSESEESREESSREREERERSRSRRERERRTESRERREREREREREERREEPESEERRRSEE Ee
SERRRSRERSSSESSKSRERSKEREREERRESSESRRRSKESERSRSCRERKESRESHRETEREEERERERREREREREREEREEEERERRERRESEREERERRRE RE
SESSRESASRERSSSESKCERERSSRRREAERESESRESERERERRRRSSERERSSRRERERERE RRR REREK EERE REREREREREEEEREREE RSE eS
SESSSSERESSSESSSKESSSSSESSKSSSEKRTSRERSEESRSSEESESEERERRERSESERSRSRESESESEREERESESERESSEESSEEESEREEERESEEERESES St
SERRREKRERRRRERERSSRERETSRRERRKRRSRERERERKESRERRRRRERESRRRRERRRERREREREREERERERREERREREREREREREEEERRREERE EEE S
SERRSEEETSEESSSERRESEERERRERESEESSREEEREEERERREEREREE SSSR SEREERRERESEKESEERRERRERERERERERERERERERRERRE SS
SERRE SRERKRESKRKEEESSSEKRSRKSKRKKSRE SRE ERE ERE E REESE EREREEEEEEEEE REESE SERS eS
SESCESKSSKESEESSECREERRESSESEEERSEEERESERERERSRRERETERERREERREEREESREESEERSEEREEREREREREREREREESEEREEEEEEEE ES
SESRSCCKRSKSESESKEKSCKSSSSEEERKESESSSESKECESSSETSRREKSRERERSE CRESTS ESESSEESE SERRE SESESERESERER SEES eS
SESRSRSCTKSSERESRKRTSSRKSSREKEEKRSERSRESTRREKSSRESEREKESRESREKRERRESRREREREESEREEEERERESERSREEREESERERESERSEE SB!
SESCESSERSSSESSKRSRRSKESRSSESESSSESSSSSRESSESSSCRSKRSEESESRRTERSEESREEESSEREEESESERERESERESESEREREREEESEREEE SE
SRESSRSSSEESSSSRKEREETSSRSSSEERRSERSRETRERSRESRRTEREERRERERERERERRRRSRERERESRERERERESERERREEEREERERREREE REESE
SESSSSRESSSSSSSSRSKSSSE SSSR SSSSSSSERERERSSSSSRESEERSSSSRER ESSERE ESEEEEEEE ERE e eS
SERRE RRSSRRRSESKRRERRRREREKESSERRSRRRESERREREREREEKERERERRRERRERRRRERESERRRRREERERERERERESERESERRREREERE EE
SESRSKSKESSSTESESRTCEERSSRREKERERSTEREERREER ESKER SERREERERRESERERERERE REC RESEE Ree
SEGRRESEEEESSSRRREESEESSRSEKERCERSEREREERERESSRRRSERERERERERERERERERERERRRREEERERRREREREREERERERERERERRREEE ES
SESSSSSHERSSESSSPRSKSSSE SSSR RERSSESSSSTRSSSESSREKSKETEEE SSSR ERECERERERESREREESESEEEREESEEEEEEEReSES
te TT a
SERRSCEERRESETERREKESEESSKRREREEETREREREERE RESETS EKECRREERS CRETE RERERERREE SEER ERRRREEREERERRREEEE eS
SEGRE ESKER SRE SECERESR ERE SERS eee e
SESCESKSESKESESSESRESSRE CERES RESRSETRSERERSSEERESRRRERESEREEREESERERSERERESREREREEEREREEERERERERREEER REE E Se
SECSSCSKSKESSSSSREK SETTERS SRS ESSERE SESSSSSSRRSRSREREKSRERERSSESERESESEE EERE EEERERESEREREREREEEEEEEE ES
SSSRSEKSSERSESSSRST ESHEETS RRKRSTEKERSRESERER EKER ERRR EKER ERRERRRRE TERRES RRERERE REESE EERE eee et
SESRSSKSKRASERSSRESKRSKESSSSERERSEERSSRRKESER SSSR SESSR EES ERREREERRRRESEESREEEREREREEEEERRE ee
SESSRRSEEERSESERRSKCSEESERESEEERESEREREERERERSRREEEREESCERERERERERERERERERERERERESERRERERERERERERERRERRREEE EE!
SESSA SSSSSSSRSSSRSSSSEERSREESESRERSSSTSRSSKESSSRREEEKERESESERS ESET ERTEEEEESE ESSERE REESE Ree
SERRRCSSEARERRSERSKESSRRERERERESRRRRERRRESRERERERRREERERRRREKEESRERRRRREERERERRRERRERERERERERRRERRE RRR ERE ee
SEGRSSSSSSTSSRSRRSESSESSSSERERESSERERERESERSERRERERERRESREREREEESSREEREEREERR ERE EREREEEERERE ERR e
SEGRE SREERSSERSSERE KSEE SRAESKERSR SKEETER SRR ERE SERRE RSET REESE ESSERE Eee
SECRERSECRRERSCEESEERESSSRERECKSRESRESRESERKER SSR SERRRRERERSSEREESRRREEEREREREERERERERESEREEREERERREEEE EERE ES
SESRECKETEECHSECERR RECESSES SERRE ER STEERER CSRERESSRERERSSESESERESRRSREREREERESESREESESEEREEREEEE EE!
SESRSRSEKSSSSRSCRRESTTSESESERSSKESRRERERSERSRSRETESERESRSERER ETERS SER REESE EREREREREREE EERE eee
SERRSSCETS SSSR SKKESEESRSSKSKESEE SSSR SEEKER SSSR SEREE SESE EERE SERRE EERE EER ER ERE Eee
SSESSSESSSERSRSCKERSESRESSTESEEKSKRSCSSSERESESERETERESHSREERESERERERREEEREESREREREREEEREREEEREREREREEEEEREE ES
SESSSCSSSSESESSSSSKETSESSSSKSSEREESSSSSEESEEESESSSEREEE SESE SE SESS EERERERER EERSTE ESESEREREEEEEEEEE EE ee
SESS EKSERSECSSKRKKSEKEKSEKESEKERSEKEKHERSSEREKSSSREKSESSRERSSRESEEREEERSRRESEEEEERERERSEREREREEEERSREREREEREEESEE SE!
SERRSSSRKESSRRRSRARESTR HERRERA SSR SAKE R KESTER SRE SR EERE RE SERRE RRR RRR ERR REE EERE REE REESE ERE eee
SRERRSKEESESSSSERKSREESESRERERERSSERCRCESERESRERREEESESERSERERERERERERERRRERERSREREEERERRREREREEERERERREESE ee
SEGRE SSCESKSREESSSSEEEESSKSESESRSSESSRSKSSKSEESSEKE SSSR ESEESRSESEESSESEREEEEREEEEEEERE ES
SRERRSEKERESRESKREREKERERERREREKCESRERRRSREESEEERERKEKERERERERERERER ERE EEERSRERRERESERERRERREERERRRRRERE ee
SERRE ESRTSSRSSRRTKEKSRSREKEKESSERREERRSSESRRSSHSERER ESSERE STRRERERRESRESEERERSESEEEERESESERESEREEEREREE eS
SQGRSSRSRREKESESERSSSERRSKEKKEESRERSSESRSSEKSSRSRSERSESSRERETESEESEETRESRETERESERER ESE EEE RERREEEE EERE ee
SESSESKSTEREESEESKSERER ERECT EERERERSRREEEREESRESEESSSEERESREERESEREEESREEERERESEREEEREESEEERESE eS
BELL LE EL ELE LETTE TTT TT aa
SESS ESSERERRKERHKRESSSEKSEKSRSKEHEEESEESEEREKSEKERESRESRRRSRERECERTEREEREREREERRRESEEERREEEEREEEEREREE eee Bt
SHESSSSKRERSSRSRSRRKESTRSSSSESHSSSRSSSSKSSSSTSRSSRREKSERSSERREESRE CESSES EEREEESERERRESESEESER REESE ee
SRSRSEKKSKSESSSSERTSSKR SSSR E SSSR ESSSKKEER KECK SSRE RESET RRE SERRE SERRE RE ERE REESE ERE RER EERE ERE RRR ee
SESS EKER SSSSCR SSSR SSSR RERSSA SSSR CERESESSEEE REESE SESE SREERERRE TESS SERRE ERE EEE REE ee eee
SRRERSKRRKEETERRERARERER RRR RREERERSERRRESER REECE RRERRRERRERERRRERE EERE EERE RRR EEE e
SEGRE TESKSRERRTERESSSSKRERETETSREERS CRESS SSERRERRERTRESSRSSRESEE SERRE EER EE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0253%3A19. Public record. Not legal advice.