517 U.S. 1174 (1996), 95-856, Janklow v. Planned Parenthood

Docket Nº:No. 95-856
Citation:517 U.S. 1174, 116 S.Ct. 1582, 134 L.Ed.2d 679, 64 U.S.L.W. 3722, 64 U.S.L.W. 3724
Party Name:Janklow v. Planned Parenthood
Case Date:April 29, 1996
Court:United States Supreme Court

Page 1174

517 U.S. 1174 (1996)

116 S.Ct. 1582, 134 L.Ed.2d 679, 64 U.S.L.W. 3722, 64 U.S.L.W. 3724



Planned Parenthood

No. 95-856

United States Supreme Court

April 29, 1996



Page 1175

STEVENS, J., memorandum

Memorandum of JUSTICE STEVENS, respecting the denial of the petition for certiorari.

The Court's opinion in United States v. Salerno, 481 U.S. 739 (1987), correctly summarized a long established principle of our jurisprudence:

The fact that [a legislative] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.

Id. at 745.

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 481 U.S. at 749-750.

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.[1] Accordingly, there is

Page 1176

no need for this Court affirmatively to disavow that unfortunate language, in the abortion context or otherwise, until it is clear that a federal court has ignored the appropriate principle and applied the draconian "no circumstance" dictum to deny relief in a case in which a facial challenge would otherwise be successful.[2] I thus concur in the denial of this petition.

SCALIA, J., dissenting

[116 S.Ct. 1584] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, 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.[1]

Page 1177

The court's basis for the invalidation was that "a large fraction of minors seeking pre-viability abortions would be unduly burdened by [the] statute, despite its abuse exception,"[2] Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1463 (1995) (emphasis added).

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, 497 U.S. 502, 514 (1990), another case involving a parental notification provision, that

[t]he Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur.

The Eighth Circuit's holding is also dependent on the questionable conclusions (1) that "parental notice provisions, like parental consent provisions, are unconstitutional without a Bellotti-type bypass," 63 F.3d at 1460, see Bellotti v. Baird, 443 U.S. 622 (1979), and (2) that the South Dakota law's exception for abused

Page 1178

and neglected minors did not satisfy the need for a bypass procedure, 63 F.3d at 1460-1463.

Beyond these issues, however (or, more accurately, preceding them), is another question that virtually cries out for our review. In United States v. Salerno, 481 U.S. 739 (1987), summarizing a long established principle of our jurisprudence, we observed:

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. [116 S.Ct. 1585] 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...

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