The Ayotte Compromise

JB

(1)The first thing to note about Ayotte is that O'Connor got all the Justices, from Stevens to Scalia, to sign onto an opinion that states:

(a) parental notification statutes are constitutional (not a surprise, given many previous precedents); and

(b) "New Hampshire does not dispute, and our precedents hold that 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,'" citing Casey. Now, at first glance, this *is* an interesting concession from Scalia, Thomas, and Chief Justice Roberts. Did they really mean to adopt this position, which is a claim of substantive due process, as binding law? Perhaps not. Perhaps they would say that they merely accept O'Connor's proposition for purposes of this case. Or, equally possible, perhaps they are saying that since New Hampshire did not contest the proposition, and since the precedents actually do say what O'Connor says they do, there is nothing problematic about joining an opinion that notes these facts, although they do not necessarily agree that the precedents are correctly decided.

Note that O'Connor goes on to say that "New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks." Given this concession, and given O'Connor's opening statement that "[w]e do not revisit our abortion precedents today," perhaps there would be no point in Scalia, Thomas, (or Roberts for that matter), concurring in the judgment to state specifically that they continue to reject Casey (if in fact Roberts does).

(2) O'Connor holds that "when a statute restricting access to abortion may be applied in a manner that harms women's health," partial invalidation is to be preferred to total invalidation where possible, when it is not inconsistent with legislative intent, and when clear lines can be drawn on the basis of preexisting doctrine. Presumably, O'Connor is strongly suggesting that existing doctrine would allow a carve-out for emergency risks to a woman's health.

This last point is interesting precisely because Scalia joins it. In interpreting statutes, Scalia generally rejects arguments based on legislative intention. Why, then, is the Court permitted to try to figure out whether the legislature would rather have had a parental notification statute with a health exception or no parental notification statute at all? Why not simply look to the "plain meaning" of the statute?

(3) Now the opinion *really* gets interesting. What about the federal partial birth abortion statute, which makes no exception for cases in which partial birth abortion is medically indicated as having the fewest risks for a woman's health? The court struck down a similar state statute in Stenberg v. Carhart. Here is what O'Connor has to say: "[W]e, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw [as New Hampshire's]. . . . We held Nebraska's [partial birth abortion law] unconstitutional [in Stenberg] because it lacked a health exception. But the parties in Stenberg did not ask for, and we did not contemplate relief more finely drawn."

Does this mean that if the issue had been raised in Stenberg, the Court would have upheld the majority of the statute by inserting a health exception? (And does it mean that the federal partial birth abortion statute will be upheld?) Well, maybe not. There was another problem with the partial birth abortion statute in Stenberg-- it reached some early term D&E abortions rather than just late term D&X abortions. So even if the new Ayotte rule had applied, the Court would have had to decide (1) whether Nebraska wanted to include both kinds of abortions or none at all, and (2) whether the statutory language could be interpreted to be restricted only to late term D&X abortions. So it's possible that even if the issue had been raised in Stenberg, the Court would have struck down the whole statute because it had an additional constitutional problem.

In fact, the federal partial birth abortion statute has a similar flaw to the Nebraska statute considered in Stenberg. It is craftily designed to include some early term D&E abortions as well as late term D&X abortions. And it's quite possible that this imprecision was deliberate: abortion opponents wanted to try to outlaw as many abortions as they could.

So although O'Connor's language in Ayotte might suggest that the Federal statute might survive scrutiny with the addition of a judicially crafted health exception, it also might not. What her opinion in Ayotte does is make the second, alternative holding of Stenberg as important as the first holding on the health exception.

(4) O'Connor concludes by stating that since New Hampshire conceded that the statute was unconstitutional as to health emergencies and the plaintiffs conceded that "carefully crafted injunctive relief may resolve this case," the lower courts should try to produce a narrowing construction.

(5) What effects will this ruling have? Who are the winners and losers?

On the one hand, New Hampshire and abortion opponents win to the extent that plaintiffs must now bring what are effectively as applied challenges to new abortion statutes. If the statute is unconstitutional only as to a small number of persons, courts should not strike the whole statute down but impose carve-outs. This means that legislatures are freer to pass restrictive abortion laws with the idea that courts will carve out unconstitutional applications later one.

On the other hand, New Hampshire and abortion opponents lose to the extent that the new rule the Court adopts is not exactly identical to an as-applied challenge. First, it does not necessarily require the development of a record after a full trial, although the court may of course demand one. Second, courts are allowed to hold unconstitutional applications invalid immediately as to everyone, and not just as applied to the parties before the court. Third, the courts can hold multiple features of the statute unconstitutional immediately. This last point becomes clear in the instructions on remand: O'Connor says that the lower court should consider the other constitutional objections that the plaintiffs raise. Thus, legislatures and abortion opponents lose to the extent that courts are given greater leeway to cut up their abortion statutes.

And this brings me to my final point about winners and losers. Under the guise of respecting legislatures, O'Connor has given the federal courts new powers to rewrite abortion statutes based on existing doctrinal categories. This is consistent with O'Connor's general tendency throughout her career to use seemingly narrow holdings to maximize future judicial discretion.

So if you want to know who really was the big winner in Ayotte, the answer is simple: It was the federal courts. They are now freed up to selectively rewrite new abortion statutes in the asserted name of respecting legislative intention and democracy.