Ayotte v. Planned Parenthood of Northern New England - Opinion Announcement

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.