Ayotte v. Planned Parenthood (2006)
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
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
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
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."
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