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Ayotte v. Planned Parenthood (2006)

In Depth


In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act.  The Act prohibited physicians from performing an abortion upon a pregnant minor until forty-eight hours after written notice of the pending abortion was delivered to her parent or guardian.  The Act permitted a physician to perform an abortion without notifying the minor's parent or guardian if the procedure was necessary to prevent the minor's death and there was insufficient time to provide the required notice; if a person entitled to notice certified that he or she had already been notified; or if notice had been waived in a judicial bypass hearing requested by the minor.

Plaintiffs, a physician who performs abortions and three abortion clinics, brought a lawsuit in federal district court challenging the Act.  The Attorney General was named as the defendant.  The plaintiffs claimed that the Act was unconstitutional because it contained no health exception, because the exception to prevent the minor's death was too narrow and because the Act failed adequately to protect the confidentiality of the judicial bypass proceedings.  The federal district court declared the Act unconstitutional and enjoined its enforcement.  The court held that the Act was invalid for failing to provide a health exception and that the judicial bypass provided by the statute would not operate expeditiously enough in medical emergencies.  In the alternative, the court held that the exception in the Act for an abortion that was necessary to prevent the minor's death was unconstitutional because it required physicians to certify with impossible precision that the abortion was "necessary" to avoid death, and failed to protect their good faith medical judgment.  The court of appeals affirmed largely on the same grounds.  Neither the district court nor the court of appeals reached plaintiffs' argument regarding the adequacy of the judicial bypass procedure.  The Supreme Court granted the Attorney General's petition for review.

The Statute Under Review

The Parental Notification Prior to Abortion Act was codified as N.H. Rev. Stat. §§ 132:24-132:28 (2005).  The Act prohibited a physician from performing an abortion upon a pregnant minor (or a woman for whom a guardian or conservator had been appointed) until forty-eight hours after written notice of the pending procedure was delivered to her parent or guardian.  Id. § 132:25(I).  Notice could be delivered personally or by certified mail. Id.  §§ 132.25(II), (III).  Violations of the Act were subject to criminal and civil penalties.  Id. § 132:27.

The Act recognized certain situations in which a physician could perform an abortion without notifying the minor's parent or guardian.  First, notice was not required if "[t]he attending abortion provider certifie[d] in the pregnant minor's record that the abortion [was] necessary to prevent the minor's death and there [was] insufficient time to provide the required notice."  N.H. Rev. Stat. § 132:26(I)(a).  Second, a person entitled to notice could certify that he or she already had been notified.  Id. § 132:26(I)(b).  Third, a minor could petition a judge to authorize her physician to perform an abortion without parental notification.  Such authorization had to be granted if the judge found either that the minor was mature and capable of giving informed consent, or that an abortion without notification was in her best interests.  Id.§ 132:26(II).  The judicial bypass proceedings "shall be confidential and shall be given precedent over other pending matters so that the court may reach a decision promptly and without delay," and access to the courts "shall be afforded [to the] pregnant minor 24 hours a day, 7 days a week."  Id. §§ 132:26(II)(b), (c).  The trial and appellate courts were each required to rule on bypass petitions within seven days.  Id.  The Act did not expressly permit a physician to perform an abortion in a medical emergency without parental notification.

The Court's Holding

The Court unanimously vacated the judgment of the court of appeals and remanded the case to that court to reconsider its choice of remedy.

The Court's Reasoning

In her opinion for the Court, Justice O'Connor set forth three propositions.  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.' " Ayotte, 546 U.S. at 326 (quoting Hodgson v. Minnesota, 497 U.S. 417, 444-45 (1990) (opinion of Justice Stevens).  Second, "a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 327 (quotation marks and internal citations omitted).  Third, "[i]n some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health."  Id. at 328.

New Hampshire argued that, "in most, if not all cases, the Act's judicial bypass and the State's 'competing harms statutes [would] protect both physician and patient when a minor needs an immediate abortion."  Ayotte, 546 U.S. at 328 (citing statutes).  Justice O'Connor noted, however, that both the district court and the court of appeals found that "neither of these provisions [would] protect minors' health reliably in all emergencies."  Id. (citing lower court opinions).  And the State conceded that, under the Court' abortion jurisprudence, "it would be unconstitutional to apply the Act in a manner that [would] subject[] minors to significant health risks." Id. (citing State's Reply Brief and Transcript of Oral Argument).  Because the Act might be unconstitutional in certain applications, the Court turned to the question of remedy.

In a self-conscious departure from the Court's previous abortion cases, which often did not try to salvage the constitutional provisions and applications of statutes that were unconstitutional in certain respects, Justice O'Connor stated that, as a general rule, "when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.  We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force," or "to sever its problematic portions while leaving the remainder intact." Ayotte, 546 U.S. at 328-29 (citing cases).  "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.'" Id. at 329 (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality op.).  "Accordingly, the 'normal rule' is that 'partial, rather than facial, invalidation is the required course,' such that 'a statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.' " Id. (quoting Brokett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985). 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."  Id. (quoting Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988).  In other words, the Court will not rewrite state law to bring it into conformity with the requirements of the Constitution.  Third, the Court examines legislative intent.  "After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what if left of the statute to no statute at all?"  Id. at 330.

Justice O'Connor noted that the lower courts had chosen "the most blunt remedy" possible, "permanently enjoining the enforcement of New Hampshire's parental notification law and thereby invalidating it entirely."  Ayotte, 546 U.S. at 330.  That was unnecessary because, as the Attorney General argued and as the plaintiffs conceded, "[o]nly a few applications" of the law "would present a constitutional problem."  Id. at 331.  Accordingly, "[s]o long as they are faithful to legislative intent, . . . the lower courts can issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application[s] [to medical emergency abortions]."  Id.

The parental notification law contained a severability clause, N.H. Rev. Stat. § 132:28, but the parties disagreed as to whether the legislature would have preferred no statute at all to a statute enjoined in a limited way.  Because the lower courts did not address the severability issue, the Supreme Court remanded the case to the court of appeals to address that issue.  Ayotte, 546 U.S. at 332.  The Court added that either "an injunction prohibiting unconstitutional applications" or, alternatively, "a holding that consistency with legislative intent requires invalidating the statute" in its entirety, would "obviate any concern about the Act's life exception."  Id.  Finally, if the law survived in part on remand, then the court of appeals "should address [plaintiffs'] separate objection to the judicial bypass' confidentiality provision."  Id.

The Court vacated the judgment of the court of appeals and remanded the case for further proceedings consistent with its opinion.  Ayotte, 546 U.S. at 532.  On remand, the court of appeals decided that the issue of severability should be decided in the first instance by the district court.  Accordingly, the court of appeals remanded the case to the district court.  Before the district court could rule on the severability issue, however, the New Hampshire legislature repealed the law, thereby mooting the severability issue, as well as any issue regarding the confidentiality of the judicial bypass hearing.

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