an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The oral arguments for Ayotte can be found here and here. The liberal justices gave both Ayotte and the Solicitor General a hard time; Chief Justice Roberts wanted to throw out the challenge and have doctors bring a brand new "pre-enforcement as-applied challenge" that would test the constitutionality of New Hampshire's lack of an emergency health exception. The liberal Justices wanted to know what the difference was between that case and the present one, other than changing the plaintiff's name. (In fact, since the doctors, like Planned Parenthood, would be invoking third party standing, and because they would be bringing the challenge before any emergency had actually occurred, it's hard to see what the difference would have been. The real difference, one assumes, is the kind of relief that could be offered-- total invalidation versus partial invalidation-- but, as I shall describe in a moment, several of the Justices didn't think that there should be a difference even with respect to that question.).
The most important moment came during Planned Parenthood's argument when Justice O'Connor said in the exasperated tone that usually indicates which way she is going to come down on a case (at about 5:40 in the second mp3 file): "What resulted here was the invalidation of the entire statute and all of its applications. . . . So the question you're being asked is how can that be narrowed... The statute may well have a majority of valid applications, and what of our doctrines allow a narrower application. Obviously it's a matter of concern."
The discussion that followed among the Justices concerned how to remand the case to the 1st Circuit so as to authorize it to issue a narrower injunction that would hold the statute inapplicable to situations where a doctor in good faith believes that there is a medical emergency that gives insufficient time to engage in a judicial bypass of the parental notification requirement. That is, they wanted to know how to send the case back down to keep the statute in place but hold it inapplicable to certain situations. From Justice Breyer's remarks, it looks as if a majority of the Court was warming to the task: Salerno wouldn't apply precisely, but courts in situations like that in Ayotte would be authorized to issue injunctions that got rid of certain applications of a statute while leaving the rest of the statute enforceable. It would be an ad hoc pragmatic sort of doctrine, not quite a full facial challenge, and not quite a traditional as-applied challenge, whose parameters are wildly uncertain, just the sort of thing that Justice O'Connor likes.
If the liberals go along with reversing and remanding, the conservatives surely will too, albeit for different reasons. So it looks right now as if Planned Parenthood loses the case to the extent that it goes back to the 1st Circuit, which will be instructed to consider how and whether to issue a narrower injunction. But if Justice O'Connor gets her way, Planned Parenthood will also win, because it will be allowed to ask the 1st Circuit for an injunction that holds the statute inapplicable to health emergency situations. Moreover, Planned Parenthood has additional challenges to the statute which it now may raise again, and so it's possible that the 1st Circuit could get rid of other parts of the statute (or even the whole thing) on those other grounds that it didn't find it necessary to reach in the previous round of litigation. So everbody wins and everybody loses-- a classic O'Connor result.
It will be quite interesting to see whether O'Connor can cobble together one last majority and get the opinion written and handed down quickly before she leaves. Of course, if she can get Justice Kennedy and the four liberals to go along with her pragmatic solution, her vote won't be necessary, and the case can come down later.