AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND ET AL.
No. 04-1144
SUPREME COURT OF THE UNITED STATES
January 18, 2006
546 U. S. ____ (2006)
O‘CONNOR, J.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Argued November 30, 2005—Decided January 18, 2006
New Hampshire‘s Parental Notification Prior to Abortion Act, in relevant part, prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor‘s death if there is insufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification. Respondents, who provide abortions for pregnant minors and expect to provide emergency abortions for them in the future, filed suit under
Held: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justifiеd, for lower courts may be able to render narrower declaratory and injunctive relief. Pp. 4–10.
(a) As the case comes to this Court, three propositions are established. First, States have the right to require parental involvement when a minor considers terminating her pregnancy. Second, a State may not restrict access to abortions that are ” ‘necessary, in appropriate medical judgment for preservation of the life or health of the
(b) Generally speaking, when confronting a statute‘s constitutional flaw, this Court tries to limit the solution to the problem, preferring to enjoin only the statute‘s unconstitutional applications while leaving the others in force, see United States v. Raines, 362 U. S. 17, 20–22, or to sever its problematic portions while leaving the remаinder intact, United States v. Booker, 543 U. S. 220, 227–229. Three interrelated principles inform the Court‘s approach to remedies. First, the Court tries not to nullify more of a legislature‘s work than is necessary. Second, mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from “rewrit[ing] state law to confirm it to constitutional requirements.” Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397. Third, the touchstone for any decisiоn about remedy is legislative intent. After finding an application or portion of a statute unconstitutional, the Court must ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally, e.g., Booker, supra, at 227. Here, the courts below chose the most blunt remedy—permanently enjoining the Act‘s enforcement and thereby invalidating it entirely. They need not have done so. In Stenberg v. Carhart, 530 U. S. 914—where this Court invalidated Nebraska‘s “partial birth abortion” law in its entirety for lacking a health exception—the parties did not ask for, and this Court did not contemplate, relief more finely drawn, but here New Hampshire asked for and respondents recognized the possibility of a more modest remedy. Only a few applications of the Act would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the Act‘s unconstitutional application. On remand, they should determine in the first instance whether the legislature intended the statute to be susceptible to such a remedy. Pp. 6–10.
(c) Because an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidаting the statue in toto should obviate any concern about the Act‘s life exception, this Court need not pass on the lower courts’ alternative holding. If the Act survives in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial
390 F. 3d 53, vacated and remanded.
O‘CONNOR, J., delivered the opinion for a unanimous Court.
KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE, PETITIONER v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND ET AL.
No. 04-1144
SUPREME COURT OF THE UNITED STATES
January 18, 2006
546 U. S. ____ (2006)
O‘CONNOR, J.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
JUSTICE O‘CONNOR delivered the opinion of the Court.
We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access tо abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.
I
A
In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act.
The Act allows for three circumstances in which a physician may perform an abortion without notifying the minor‘s parent. First, notice is not required if “[t]he attending abortion provider certifies in the pregnant minor‘s record that the abortion is necessary to prevent the minor‘s death and there is insufficient time to provide the required notice.”
The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification.
B
Respondents are Dr. Wayne Goldner, an obstetrician and gynecologist who has a private practice in Manchester, and three clinics that offer reproductive health services. All provide abortions for pregnant minors, and each anticipates having to provide emergency abortions for minors in the future. Before the Act took effect, respondents brought suit under
The District Court declared the Act unconstitutional, see
The Court of Appeals for the First Circuit affirmed. Citing our decisions in Stenberg v. Carhart, 530 U. S. 914, 929–930 (2000), Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and Roe v. Wade, 410 U. S. 113, 164–165 (1973), it observed: “Complementing the general undue burden standard [for reviewing abortion regulations], the Supreme Court has also identified a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of the pregnant woman‘s health.” Planned Parenthood of Northern New Eng. v. Heed, 390 F. 3d 53, 58 (2004). It went on to conclude that the Act is unconstitutional because it does not contain an explicit health exception, and its judicial bypass, alоng with other provisions of state law, is no substitute. The Court of Appeals further found the Act unconstitutional because, in its view, the life exception forces physicians to
We granted certiorari, 544 U. S. 1048 (2005), to decide whether the courts below erred in invalidating the Act in its entirety because it lacks an exception for the preservation of pregnant minors’ health. We now vacate and remand for the Court of Appeals to reconsider its choice of remedy.
II
As the case comes to us, three propositions—two legal and one factual—are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U. S. 417, 444–445 (1990) (opinion of STEVENS, J.).1 Accordingly, we have long upheld state parental
Second, New Hampshire does not dispute, and our
Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. See 296 F. Supp. 2d, at 65, n. 4.
New Hampshire has maintained that in most if not all cases, the Act‘s judicial bypass and the State‘s “competing harms” statutes should protect both physician and patient when a minor needs an immediate abortion. See
III
We turn to the question of remedy: When a statute
Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature‘s work than is necessary, for we know that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion). It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the requirеd course,” such that a “statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S. 1 (1985); United States v. Grace, 461 U. S. 171, 180–183 (1983).
Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewrit[ing] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at
Third, the touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286, 289–290 (1924) (opinion for the Court by Brandeis, J.). After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally Booker, supra, at 227; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v. Corporation Comm‘n of Okla., 286 U. S. 210, 234 (1932); The Employers’ Liability Cases, 207 U. S. 463, 501 (1908); Allen v. Louisiana, 103 U. S. 80, 83–84 (1881); Trade-Mark Cases, 100 U. S. 82, 97–98 (1879). All the while, we are wary of legislatures who would rely on our intervention, for “[i]t 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. United
In this case, the courts below chose the most blunt remedy—permanently enjoining the enforcement of New Hampshire‘s parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman‘s life. We held Nebraska‘s law unconstitutional because it lacked a health exception. 530 U. S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.
In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a more modest remedy: They pleadеd for any relief “just and proper,” App. 13 (Complaint), and conceded at oral argument that carefully crafted injunctive relief may resolve this case, Tr. of Oral Arg. 38, 40. Only a few applications of New Hampshire‘s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute‘s unconstitutional application.
There is some dispute as to whether New Hampshire‘s legislature intended the statute to be susceptible to such a remedy. New Hampshire notes that the Act contains a severability clause providing that “[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, suсh invalidity shall not
IV
Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the Act‘s life exception. We therefore need not pass on the lower courts’ alternative holding. Finally, if the Act does survive in part on remand, the Court of Appeals should address respоndents’ separate objection to the judicial bypass’ confidentiality provision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.