Ayotte v. Planned Parenthood of Northern New Eng., No. 04-1144.

• Court: United States Supreme Court
• Citation: 163 L. Ed. 2d 812,546 U.S. 320,126 S. Ct. 961
• Docket Number: No. 04-1144.
• Parties: AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE <I>v.</I> PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND ET AL.
• Decision Date: 18 January 2006

546 U.S. 320 126 S. Ct. 961 163 L. Ed. 2d 812 AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE
v.
PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND ET AL. No. 04-1144. Supreme Court of United States. 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 Rev. Stat. § 1979, 42 U.S.C. § 1983, claiming that the Act is unconstitutional because it lacks a health exception and because of the inadequacy of the life exception and the judicial bypass' confidentiality provision. The District Court declared the Act unconstitutional and permanently enjoined its enforcement, and the First Circuit affirmed.

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 justified, for lower courts may be able to render narrower declaratory and injunctive relief. Pp. 326-332.

(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 mother.'" Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 879 (plurality opinion). Third, New Hampshire has not taken issue with the case's factual basis: In a very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health. New Hampshire has conceded that, under this Court's cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. Pp. 326-328.

[546 U.S. 321]

(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 remainder 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 conform it to constitutional requirements." Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397. Third, the touchstone for any decision 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. 328-331.

(c) Because 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, 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 bypass' confidentiality provision. P. 332.

390 F.3d 53, vacated and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

Kelly A. Ayotte, Attorney General of New Hampshire, petitioner, argued the cause pro se. With her on the briefs

[546 U.S. 322]

were Michael A. Delaney, Deputy Attorney General, Daniel J. Mullen, Associate Attorney General, and Laura E. B. Lombardi and Anthony I. Blenkinsop, Assistant Attorneys General.

Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Kannon K. Shanmugam, and Marleigh D. Dover.

Jennifer Dalven argued the cause for respondents. With her on the briefs were Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, Diana Kasdan, Lawrence A. Vogelman, and Dara Klassel.^*

[546 U.S. 323]

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 to 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. N. H. Rev. Stat. Ann. §§ 132:24-132:28 (2005). The Act prohibits physicians from performing an abortion on a pregnant minor (or a woman for whom a guardian or conservator has been appointed) until 48 hours after written notice of the pending abortion is delivered

546 U.S. 324

to her parent or guardian. § 132:25(I). Notice may be delivered personally or by certified mail. §§ 132:25(II), (III). Violations of the Act are subject to criminal and civil penalties. § 132:27.

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." § 132:26(I)(a). Second, a person entitled to receive notice may certify that he or she has already been notified. § 132:26(I)(b). Finally, a minor may petition a judge to authorize her physician to perform an abortion without parental notification. The judge must so authorize if he or she finds that the minor is mature and capable of giving informed consent, or that an abortion without notification is in the minor's best interests. § 132:26(II). These judicial bypass proceedings "shall be confidential and shall be given precedence 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." §§ 132:26(II)(b), (c). The trial and appellate courts must each rule on bypass petitions within seven days. Ibid.

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 42 U.S.C. § 1983, alleging that the Act is unconstitutional

546 U.S. 325

because it fails "to allow a physician to provide a prompt abortion to a minor whose health would be endangered" by delays inherent in the Act. App. 10 (Complaint, ¶ 24). Respondents also challenged the adequacy of the Act's life exception and of the judicial bypass' confidentiality provision.

The District Court declared the Act unconstitutional, see 28 U.S.C. § 2201(a), and permanently enjoined its enforcement. It held, first, that the Act was invalid for failure "on its face [to] comply with the constitutional requirement that laws restricting a woman's access to abortion must provide a health exception." Planned Parenthood of Northern New Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH 2003). It also found that the Act's judicial bypass would not operate expeditiously enough in medical emergencies. In the alternative, the District Court held the Act's life exception unconstitutional because it requires physicians to certify with impossible precision that an abortion is "necessary" to avoid death, and fails to protect their good faith medical judgment.

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,...