Lead Opinion
C. A. 8th Cir. Motion of National Right to Life Committee, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.
The Court’s opinion in United States v. Salerno,
Unfortunately, the preceding sentence in the Salerno opinion went well beyond that principle. That sentence opens Part II of the opinion with a rhetorical flourish, stating that a facial challenge must fail unless there is “no set of circumstances” in which the statute could be validly applied. Ibid.; post, at 1178. That statement was unsupported by citation or precedent. It was also unnecessary to the holding in the case, for the Court effectively held that the statute at issue would be constitutional as applied in a large fraction of cases. See
While a facial challenge may be more difficult to mount than an as-applied challenge, the dicta in Salerno “does not accurately characterize the standard for deciding facial challenges,” and “neither accurately reflects the Court’s practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.” Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 236, 238 (1994). For these reasons, Salerno’s rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context.
Notes
See, e. g., Planned Parenthood of Southeastern Pa. v. Casey,
These cases, along with other decisions and the holding in Salerno itself (that the- challenged Act was constitutional in most circumstances, not merely one), should have braced the dissent against the minor risk of whiplash from the “head-snapping” observation, post, at 1180, that our “doctrinal pattern is somewhat more complex” than Salerno’s “no circumstance” language suggests, Fallon, Making Sense of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991) (citing cases).
In all likelihood, the decision of the Fifth Circuit applying the “no circumstance” test would have been decided the same way even if that court had utilized the “large fraction” test applied by the Eighth Circuit in this case. See Barnes v. Moore,
Furthermore, it is not at all clear to me, given intervening statements by Members of this Court, see Fargo Women’s Health Organization v. Schafer,
Dissenting Opinion
dissenting.
In this case, the United States Court of Appeals for the Eighth .Circuit declared unconstitutional a South Dakota law which requires a physician to notify a pregnant minor’s parent of an impending abortion 48 hours before the abortion is to be performed.
This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review. Among other things, it rested upon the court’s belief that “it seems, South Dakota’s abuse exception will sometimes result in parental notification, even if after-the-fact.” Id., at 1461. That reasoning is inconsistent with our holding in Ohio v. Akron Center for Reproductive Health,
Beyond these issues, however (or, more accurately, preceding them), is another question that virtually, cries out for our review. In United States v. Salerno,
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” Id., at 745.
It has become questionable whether, for some reason, this clear principle does not apply in abortion cases. As I observed three Terms ago in a case very similar to this one, we have sent mixed signals on the question — seemingly employing an overbreadth approach in Roe v. Wade,
In this case — after reviewing the incompatible pronouncements of the Court’s opinions on this subject, and remarking that “even the Justices of the Supreme Court dispute Casey’s effect,”
The Salerno question could not be more sjquarely presented. The Court of Appeals explained that “[t]he critical issue in this case is . . . what is the standard for a challenge to the facial constitutionality of an abortion law?”
Justice Stevens’ memorandum in support of the denial of this petition provides even stronger reasons than I have why it should be granted. Justice Stevens asserts that Casey could not possibly have been contrary to the “no set of circumstances” rule because, contrary to the repeated statement of our cases, that rule never existed. For that head-snapping proposition, he relies upon no less weighty authority than a law review article by Michael C. Dorf. According to that author, The Chief Justice’s statement on behalf of the Court in Salerno was not only “wrong” but “draconian.” Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 238, 239 (1994); see ante, at 1176. But if that is so, if Salerno is a dead letter even outside of the abortion context, all the more reason to grant certiorari and make that clear.
Finally, I cannot let pass without comment Justice Stevens’ suggestion that Fifth Circuit panels might, in future abortion cases, ignore the clear language of Salerno, and the Fifth Circuit’s own decision in Barnes, “given intervening statements by Members of this Court” — by which he means the memorandum of Justice O’Connor, joined by Justice Souter, concurring in the Court’s order of April 2, 1993, denying (without opinion) the application for stay and injunction pending appeal in Fargo Women’s Health Organization v. Schafer, supra. See ante, at 1176, n. 2. That the Fifth Circuit might give such authoritative effect to this two-Justice concurrence is certainly true; courts of appeals, no less than practitioners, sometimes count votes instead of following cases. But I am surprised to find that practice endorsed by Justice Stevens, who has hitherto taken a dim view of separate writings appended to discretionary (and unexplained) denials, calling “all opinions dissenting from the denial of certiorari” “totally unnecessary” and “examples of the purest form of dicta.” Singleton v. Commissioner,
For the foregoing reasons, I dissent from the Court’s denial of the petition for certiorari.
South Dakota Codified Laws § 34-23A-7 (1994 rev.) provides, in relevant part:
“No abortion may be performed upon an unemancipated minor or upon a female for whom a guardian has been appointed because of a finding of incompetency, until at least forty-eight hours after written notice of the pending operation has been delivered in the manner specified in this section. The notice shall be addressed to the parent at the usual place of abode of the parent and shall be delivered personally to the parent by the physician or an agent. In lieu of such delivery, notice may be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and restricted delivery to the addressee, which means a postal employee can only deliver the mail to the authorized addressee. If*1177 notice is made by certified mail, the time of delivery shall be deemed to occur at twelve o’clock noon on the next day on which regular mail delivery takes place, subsequent to mailing.”
South Dakota Codified Laws §34-23A-7 (1994 rev.) sets forth the following exceptions to its notice requirement:
“No notice is required under this section if:
“(1) The attending physician certifies in the pregnant minor’s medical record that, on the basis of the physician’s good faith clinical judgment, a medical emergency exists that so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function and there is insufficient time to provide the required notice; or
“(2) The person who is entitled to notice certifies in writing that he has been notified; or
“(3) The pregnant minor declares, or provides information that indicates, that she is an abused or neglected child as defined in §26-8A-2 and the attending physician has reported the alleged or suspected abuse or neglect as required in accordance with [state law]. In such circumstances, the department of social services, the state’s attorney and law enforcement officers to whom the report is made or referred for investigation or litigation shall maintain the confidentiality of the fact that she has sought or obtained an abortion and shall take all necessary steps to ensure that this information is not revealed to her parents.”
See also Webster v. Reproductive Health Services, 492 U. S. 490, 524 (1989) (O’Connor, J., concurring in part and concurring in judgment) (“[S]ome quite straightforward applications of the Missouri ban on the use of public facilities for performing abortions would be constitutional and that is enough to defeat appellees’ assertion that the ban is facially unconstitutional”). Justice Stevens’ memorandum in support of the denial of certio-rari says that the Salerno rule “has been properly ignored in subsequent cases even outside the abortion context.” Ante, at 1175. If he means by this that the rule has consistently been ignored, the statement is proved false by the eases cited here in text, where the rule was both recited and followed. (And there are other post-Salerno cases reciting and applying the rule outside the abortion context, see, e. g., Anderson v. Edwards,
While we are in the process of adopting Professor Dorf’s revisionist view of Salerno, we could also embrace his modest proposal for what ought to replace the rule described in that case. His proposal is not, curiously enough, the regime that Justice Stevens suggests, but rather total elimination of the distinction between facial and as-applied challenges. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 294 (1994).