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Thursday, December 01, 2005

Severability in Ayotte

Jack Balkin has repeatedly noted that what is perhaps the biggest issue at play in abortion litigation is the question of severability. From my reading of reports from yesterday, I think it's pretty clear that he's right. The Justices seem far more amenable to the idea of engaging in severing unconstitutional portions of abortion statutes rather than declaring them facially invalid as they previously have. Consider this report of how the Court reacted to the problem of the lack of a medical exception:
Roberts proposed to fix the flaw and thereby save the law. And in response, lawyers on both sides agreed with the idea of carving out an exception for "medical emergencies." By the end of the hourlong argument, most of the justices sounded as though they agreed as well.
This is an interesting discussion given the Court's refusal to simply "carve out" an exception in previous cases. In Casey, the Court held that an abortion regulation must be facially invalidated if it creates a substantial obstacle to access to abortions in a "large fraction" of cases. 505 U.S. at 895. Justice Thomas objected on these grounds at the end of his Stenberg v. Carhart dissent:
Even if I were willing to assume that the partial birth method of abortion is safer for some small set of women, such a conclusion would not require invalidating the Act, because this case comes to us on a facial challenge. The only question before us is whether respondent has shown that " 'no set of circumstances exists under which the Act would be valid.' " Courts may not invalidate on its face a state statute regulating abortion "based upon a worst-case analysis that may never occur."

Invalidation of the statute would be improper even assuming that Casey rejected this standard sub silentio (at least so far as abortion cases are concerned) in favor of a so-called " 'large fraction' " test. In Casey, the Court was presented with a facial challenge to, among other provisions, a spousal notice requirement. The question, according to the majority, was whether the spousal notice provision operated as a "substantial obstacle" to the women "whose conduct it affects," namely, "married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement." The Court determined that a "large fraction" of the women in this category were victims of psychological or physical abuse. For this subset of women, according to the Court, the provision would pose a substantial obstacle to the ability to obtain an abortion because their husbands could exercise an effective veto over their decision.

[noting the lack of analysis in the majority opinion and disagreeing as an empirical matter that the statute is an unconstitutional obstacle in a "large fraction" of instances]

* * *We were reassured repeatedly in Casey that not all regulations of abortion are unwarranted and that the States may express profound respect for fetal life. Under Casey, the regulation before us today should easily pass constitutional muster. But the Court's abortion jurisprudence is a particularly virulent strain of constitutional exegesis. And so today we are told that 30 States are prohibited from banning one rarely used form of abortion that they believe to border on infanticide. It is clear that the Constitution does not compel this result.
Salerno is even more restrictive and would require that a statute outside of the First Amendment (where overbreadth doctrine applies; but see Monaghan (arguing Overbreadth applies every time there is a heightened standard of review)) have no possible constitutional applications in order to be facially invalidated. Balkin explores the effect of such an extension of Salerno:
If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features.
I have a more optimistic view of replacing the worthless "large fraction" test with a more Salerno-like rule because it would minimize the Court's role in the development of the law--carving out the exceptions it feels are "constitutionally" compelled, and allowing the statutes to remain in force, rather than invalidating the statute wholesale.

I don't know that Lyle Denniston is right that this would not be a "grand pronouncement" from the Court. There is certainly no indication that the Court wants to go any further than this, though I imagine the conservatives were on their best behavior knowing that the arguments would be distributed to the media and Alito's nomination is upcoming. But I think this applying Salerno, or even somewhat less would be a major win in placing these questions back with Congress and state legislatures.


Blogger Res Ipsa said...

I would add that a Salerno style approach may also have the added benefit of helping society move past the abortion issue more completely. Some states want to protect fetal life, and in Casey they were told that they can. Facial invalidation of abortion regulations force those states to revisit the issue again and again, every time a stubborn legislature refuses to write in the medical/emergency exceptions that it knows are required by the jurisprudence. Carving out the unconstitutional portions would finally allow the state interest in fetal life mentioned in both Roe and Casey to be protected.

11:16 PM  

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