AYOTTE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND

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Argument of Kelly A. Ayotte

Chief Justice Roberts: We'll hear argument next in Ayotte versus Planned Parenthood of Northern New England.

General Ayotte.

Mr. Ayotte: Mr. Chief Justice and may it please the Court--

The Court of Appeals struck down New Hampshire's parental notification act on its face based upon a potential application of the act that even respondents concede may only arise in the smallest fraction of cases.

In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional, and State officials were denied the opportunity to imply... apply and enforce New Hampshire's act within constitutional limits.

New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion.

In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.

Justice Souter: May I interrupt you at this point?

Because there is one thing that I'm not sure that I understand about your position, and one way of reading your brief takes you a step beyond what you have just said.

So I would like to get clear on this.

And I understood your argument to be that given the safeguards such as judicial override, there simply was no... there was no need to read the health exception in, that in fact it was taken care of... any of the issues that might be raised in arguing for the need for health exception in fact were addressed by the statute.

The point at which I'm not clear on your position is... occurs in what you've said on page 11 of your yellow brief, if you could get that out.

Do you have the carry over paragraph on 11?

You go through the kind of a worst case analysis.

And you say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms.

What do you mean when you say it would be constitutionally protected?

I read that as suggesting that there was indeed a constitutional requirement for some kind of a health exception, but that may not be what you meant.

What do you mean by constitutionally protected?

What are you getting at?

Mr. Ayotte: Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court's cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward.

And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.

Justice Souter: And if he said,

"I may not be prosecuted under the Constitution because. "

what follows "because", in your view?

Mr. Ayotte: I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.

Justice Souter: Doesn't that mean because there is a required health exception?

I mean, isn't that what you're saying?

Mr. Ayotte: Justice Souter, not that there is an express requirement of a health exception but that the law cannot be implied in a manner to infringe on the minor's health if that rare emergency case arises.

Justice Kennedy: Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law.

Do you mean this act that we're looking at here?

Or do you mean the law generally including constitutional protections that this Court has proclaimed?

Mr. Ayotte: Justice Kennedy, in that limited circumstance, we do not believe that the physician would be prosecuted under our parental notification act, given that there is a mechanism--

Justice Kennedy: Because of the text of the act or because of some policy that the attorney general would follow in order just to decline to prosecute?

We want to know what this act says in the instance posed by Justice Souter.

Mr. Ayotte: --Justice Kennedy, with respect to the act itself, assuming it were a life... excuse me, a health emergency short of a life threatening emergency, where a minor did not want to notify her parents and assuming those situations came forward and someone was unable to reach a judge, the act itself provides a mechanism in it that anticipates providing a judge where necessary, and so that would be the ability of a minor in those circumstances to seek a judge.

But if for some reason all of those situations came together and the minor could not seek a judicial bypass in those instances, there is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.

Justice Breyer: Let's just imagine a real circumstance.

A 15 year old walks in 2:00 in the morning on Saturday into the emergency room and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever.

And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child.

If I don't, I don't think she's going to die but she'll never have children.

And he's thinking that.

What's supposed to happen?

He calls up Pam Pevagoglio or Pam Livingston and there is no answer.

It's 2:00 in the morning and there is one of those things, leave a message, okay?

Should I call your parents?

No.

They don't know I'm pregnant.

Now, what's supposed to happen?

Mr. Ayotte: Justice Breyer, the physician in those instances could perform the immediate abortion.

Justice Breyer: It doesn't say that in the statute.

It suggests the contrary.

So what is the particular provision of New Hampshire law that tells that... I mean, the doctor... all these things are, you know, questions of probability.

And he doesn't want to risk being prosecuted and he doesn't want to risk losing his license.

And so what particular provision... he happens to have his lawyer with him.

[Laughter]

What does the lawyer say?

Okay?

What's the provision that saves him?

There is no health exemption in this statute.

Mr. Ayotte: Your Honor, his lawyer would advise him, in those circumstances, that the competing harms defense would protect his actions because he needs to act urgently necessary... in an urgently necessary circumstance.

Justice O'Connor: Would it protect him from a civil damages action as well as prosecution in a criminal case?

Mr. Ayotte: Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability.

I would also say that that lawyer would also advise him, if given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.

Justice Breyer: How do we know?

I mean, what you're saying is fine, but how do we know that that's actually the law?

I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm.

They would say that the competing right that the life of the fetus is more important than the possibility of the mother having children in the future herself.

See, there are people in good faith on both sides of this argument.

And so how do we know that the New Hampshire statute is going to do... not the statute, but your competing harms defense is going to do for this particular woman what a health exception would do?

Mr. Ayotte: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it, as opposed to the harm that the act is trying to get at, which is notification of parents.

It's not whether or not the minor can have an abortion.

The minor can always go forward and have an abortion under these circumstances.

So people aren't weighing the right of the fetus, in this instance, to the right of the mother's health.

So the weighing is quite easy.

And if given the opportunity, my office would be prepared to issue an opinion as to the applicability of this defense.

Justice Ginsburg: But, your opinion... that's the real problem here for the doctor who is on the line.

And you said the lawyer would say, oh, you've got this defense of... what do you call it harm--

Justice Souter: Competing harm.

Justice Ginsburg: --Competing harms, a defense... I think that a lawyer who cares about his client would say, defense is not what we want.

What we want is there is no claim, not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense.

Wouldn't a careful lawyer say, what you need to be protected is that there is no claim for doing what you're doing?

Mr. Ayotte: Justice Ginsburg, in the Simopoulos case considered by this Court, one of the issues that was raised was a medical... the physician was prosecuted for performing an abortion outside the parameters of the Virginia act.

And the physician failed to raise a medical necessity defense.

This Court held that that was sufficient prosecution, that that was okay.

And this would work the same way.

Once the physician raises a competing harms defense--

Justice Stevens: General, may I just point this... suppose the lawyer or the doctor are aware of the legislative history and say, well, generally that's true.

But when you have a legislative history that suggests that the legislature considered this very defense and rejected it in the statute, would then that then give them some concern?

Mr. Ayotte: --Justice Stevens, the legislative history... there certainly was some indication that the legislature did not want a general health exception.

There is no indication in the legislative history that the legislature intended to preclude this narrow category of cases which constitute emergency cases short of that.

Justice Stevens: But if they discussed the issue on the floor of the legislature, why wouldn't they have drafted the precise protection they thought appropriate?

Mr. Ayotte: Your Honor, when they discussed the history on the floor of the House and Senate, they felt that it protected for emergencies and there was no discussion of this narrow category of cases short of death.

Justice Scalia: And you have another point here, don't you, about how general this statute is.

We don't normally interpret statutes this way, that they are totally invalid if any application of them would be unconstitutional.

That's not what we do with statutes normally, is it?

Mr. Ayotte: Justice Scalia, no.

In fact, the analysis, if you look at this one potential application, this... the standard applied by the Court of Appeals in this case goes well beyond even a substantial overbreadth test that is applied by this Court in the first amendment context.

Justice Scalia: In the first amendment.

Chief Justice Roberts: Am I right in reading your briefs that you don't object to a preenforcement challenge to the bypass procedure itself brought by physicians, for example?

Mr. Ayotte: Mr. Chief Justice, no, we do not object in that sense.

We think that is a very good mechanism to bring forth a case given that this Court has granted third party standing to physicians to resolve these types of claims.

And the benefit--

Chief Justice Roberts: And I gather that the debate on the evidence and the circumstances that might arise in that case would be quite similar to the debate in the present context.

In other words, there would be the same discussion between the different physicians about what emergencies arise and in what circumstances and whether that creates a problem and whether you can get to the courts in time and so on.

It would be the same underlying sort of evidence that we have here, right?

Mr. Ayotte: --Mr. Chief Justice, it would, but it would be much more narrowly focused in terms of bringing it as an as applied challenge, this was brought--

Justice Ginsburg: How would it be as applied?

Look at your reply brief at page 3.

And you've made it very clear, and I think that it is helpful that you did, that there could be this preenforcement action by doctors who would not have to wait until faced with an actual medical emergency to bring the suit.

You've talking about this small category of cases, but I take it from what you have read... what the lines I've just read, that you envision a doctor who says, sooner or later, I'm going to have such a case.

Right now, I don't know and I can't know until it's too late to come to any court, so I'm going to bring this preenforcement which you characterized as applied.

But I don't see how its as applied, if if the physician just says, as you put it, I don't have to wait until faced with an actual medical emergency to bring this suit.

So what is the relief, what is the lawsuit that you envision would be proper?

Mr. Ayotte: --Justice Ginsburg, the lawsuit would be a preenforcement as applied challenge and the physician would bring the claim and would say, as applied to me, I perform abortions, I also perform abortions on minors.

I need to perform an abortion in these emergency settings.

The court can issue an order, presuming it's not satisfied with the protections that are set forth in New Hampshire law that I've described.

Justice Ginsburg: Could you do that as a class action?

Mr. Ayotte: Depending on the circumstance, he may be able to.

Justice Ginsburg: What is the circumstance?

All you said here is there coule be a preenforcement challenge by doctors who would not have to wait until faced with an actual medical emergency.

Mr. Ayotte: Justice... I'm sorry.

Justice Stevens: Why isn't that this case?

I don't understand.

Justice Ginsburg: Yes, exactly.

Mr. Ayotte: Justice Stevens, this is not this case because this case was brought as a facial challenge.

Our entire act was struck down based upon that one potential--

Justice Stevens: You mean he has to bring the as applied challenge when he has the patient in his office?

He has to wait until he has the patient in the office, is that what you mean?

Mr. Ayotte: --No, he doesn't.

He can bring it before the patient is in his office and then the court could issue relief which would be much more consistent with the principles of certainly separation of powers and allowing the overwhelming number of our applications of our statutes that are valid to go forward.

Justice Scalia: We're talking about a lawsuit which asks for declaration, not that the entire statute is invalid.

But that, when faced with an emergency of the sort that this discussion has addressed, the physician can go ahead and perform the abortion?

Mr. Ayotte: That's correct, Justice Scalia.

Justice Scalia: Quite a different lawsuit from this one.

Mr. Ayotte: That's quite a different lawsuit and a lawsuit that would be certainly, from the State's perspective, would allow the overwhelming number of applications of this statute where there is no dispute that it works well, to go forward.

Justice Stevens: But in Justice Scalia's case, would not the reason for that relief have to be a finding that the statute is unconstitutional?

You can't just grant the relief because you think it's a good idea.

Mr. Ayotte: Justice Stevens, it would be only in the context of that one particular application as applied to that physician, which would have stare decisis--

Chief Justice Roberts: It would be a finding that the bypass procedure is inadequate which doesn't necessarily implicate the general notification provisions.

Mr. Ayotte: --Mr. Chief Justice, that would be the case.

And certainly if that one application, in that one potential rare case was found not to be valid, then the remainder of the applications can go forward.

And that is how most cases work with respect to as applied relief.

Justice Ginsburg: Then I think what you're saying essentially is that the First Circuit was concerned with this category, wanted to give preenforcement relief to the physician, so what they did was write except that they should have said this statute is not enforceable where there is a risk to the woman's health and it cannot be applied in any such cases.

Where there is a risk to the health, then the statute is okay.

Mr. Ayotte: Justice Ginsburg, the First Circuit went well beyond because it focused on a general health exception, they've now focusing it on an emergency exception.

But certainly the relief should have been as applied.

If I may reserve the rest of my time for rebuttal?

Justice O'Connor: Did you ask that the relief ordered below be more restrictive?

Was that challenged after the judgment was entered?

Mr. Ayotte: Justice--

Justice O'Connor: Did the Court below have a chance to consider tailoring it more narrowly, as you suggest today?

Mr. Ayotte: --Justice O'Connor, we did raise the application of the severance clause below, although the court, both at the district court level and the First Circuit appeared to look at the... the lack of a general health exception as a per se constitutional problem that rendered the statute as a whole invalid.

Justice O'Connor: I just am not clear to what extent you really raised the possibility with the court below of carrying its judgment more narrowly as you're suggesting today should be done.

Mr. Ayotte: Your Honor, we certainly raised the severance issue in the district court.

Justice Ginsburg: You've used this word severance now twice.

Severance is I excised a clause from the statute, but you're not asking for that.

It's not severance.

There is no provision to be severed here.

It's putting a caret mark and adding something to it.

Not taking out any provision, but putting in an additional provision.

Mr. Ayotte: Your Honor, you're correct.

What our position is is that they did not meet the standard that they should have been able to meet for a facial challenge, which would grant as applied relief which would only be invalid in that one potential application.

If I may reserve the rest of my time, with all due respect.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, General.

General Clement, we'll hear now from you.

Mr. Clement: Mr. Chief Justice and may it please the Court--

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Argument of Speaker

Mr. Speaker: Justice O’Connor has the opinion in No. 04-1144, Ayotte versus Planned Parenthood of Northern New England.

Argument of Justice O’connor

Mr. O’connor: This case comes on writ of certiorari to the Court of Appeals for the 1st Circuit.

It involves New Hampshire’s Parental Notification Prior to Abortion Act, which prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of the pending abortion is delivered to her parent or guardian.

The Act does not permit physicians to perform immediate abortions in medical emergencies, despite any risk to the minor that would result from delay in complying with the Act’s requirements.

Respondents are an obstetrician-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 some number of minors in the future.

Before the Act took effect, they brought suit, alleging that the Act is unconstitutional because, among other reasons, it would prevent them from providing immediate abortions in medical emergencies.

The District Court agreed the Act is unconstitutional, because it lacks a health exception and permanently enjoined its enforcement.

The Court of Appeals affirmed.

In an opinion filed with the Clerk of the Court today, we vacate the judgment of the Court of Appeals and remand for further proceedings.

As the case comes to us, three propositions are established: first, under our precedents, states unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy; second, also under our precedents, states may not restrict access to abortions that are necessary in appropriate medical judgment for preservation of the life or health of the mother; third, New Hampshire has not taken real issue with the factual basis for this litigation, which is this: in some small percentage of pregnancies, minors, like adult women, may need immediate abortions to avert serious and often irreversible damage to their health.

New Hampshire has maintained that various parts of its laws, including the Act’s own provision for judicial permission to forego notification, should protect both physician and patient in most, if not all, cases in which immediate abortion is necessary.

But the District Court and Court of Appeals found that New Hampshire law does not protect minors’ health reliably in all emergencies, and New Hampshire has conceded that it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks.

We therefore address here a question of remedy.

When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate judicial response?

Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.

We prefer, for example, to enjoin only the unconstitutional applications of a statute, while leaving other applications in force or to sever its problematic portions while leaving the remainder intact.

Three interrelated principles inform our approach to remedies: first, we try not to nullify more of a legislature’s work than is necessary; second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from rewriting state law, even as we strive to salvage it; finally, the touchstone for any decision about remedy is legislative intent.

Thus, after finding an application or portion of a statute unconstitutional, courts must next ask: Would the legislature prefer what is left of its statute to no statute at all?

In this case, the courts below chose the most blunt remedy, permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely; but reflecting on our general approach to remedies, we think the Act need not necessarily have been invalidated wholesale.

Only a very few applications of the Act should present a constitutional problem, if any.

So long as they are faithful to legislative intent, then, the lower courts can issue a declaratory judgment and an injunction prohibiting the Act’s unconstitutional application.

There is some dispute as to whether New Hampshire’s legislature intended the statute to be susceptible to such a remedy.

We remand for the lower courts to determine legislative intent in the first instance.

The opinion is unanimous.