January 18, 2006
In a unanimous decision written by Sandra Day O'Connor, Ayotte v Planned Parenthood was remanded to the District Court for new findings. Some legal observers speculated that the Supreme Court was side-stepping the abortion issue until O'Connor's successor could be named and available to hear the case in its entirety. In any event the lower court will try to determine legislative intent and whether any part of the statute can be salvaged.
Should the case work its way back to the Supreme Court, Alito will be available.
(Slip Opinion) OCTOBER TERM, 2005 Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

New Hampshire’s Parental Notification Prior to Abortion Act, in relevant part, prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor’s death if there is insufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification. Respondents, who provide abortions for pregnant minors and expect to provide emergency abortions for them in the future, filed suit under 42 U. S. C. §1983, claiming that the Act is unconstitutional because it lacks a health exception and because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision. The District Court declared the Act unconstitutional and permanently enjoined its enforcement, and the First Circuit affirmed.

Held: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief. Pp. 4–10.

(a) As the case comes to this Court, three propositions are established. First, States have the right to require parental involvement when a minor considers terminating her pregnancy. Second, 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.’ " Planned Parenthood of Southeastern Pa. v. Casey, 505

U. S. 833, 879 (plurality opinion). Third, New Hampshire has not taken issue with the case’s factual basis: In a very small percentage of cases, pregnant minors need immediate abortions to avert serious and often irreversible damage to their health. New Hampshire has conceded that, under this Court’s cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. Pp. 4–6.

1. (b) Generally speaking, when confronting a statute’s constitutional flaw, this Court tries to limit the solution to the problem, preferring to enjoin only the statute’s unconstitutional applications while leaving the others in force, see United States v. Raines, 362 U. S. 17, 20– 22, or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U. S. 220, 227–229. Three interrelated principles inform the Court’s approach to remedies. First, the Court tries not to nullify more of a legislature’s work than is necessary. Second, mindful that its constitutional mandate and institutional competence are limited, the Court restrains itself from "re-writ[ing] state law to confirm it to constitutional requirements." Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397. Third, the touchstone for any decision about remedy is legislative intent. After finding an application or portion of a statute unconstitutional, the Court must ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally, e.g., Booker, supra, at 227. Here, the courts below chose the most blunt remedy—permanently enjoining the Act’s enforcement and thereby invalidating it entirely. They need not have done so. In Stenberg v. Carhart, 530 U. S. 914—where this Court invalidated Nevada’s "partial birth abortion" law in its entirety for lacking a health exception— the parties did not ask for, and this Court did not contemplate, relief more finely drawn, but here New Hampshire asked for and respondents recognized the possibility of a more modest remedy. Only a few applications of the Act would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the Act’s unconstitutional application. On remand, they should determine in the first instance whether the legislature intended the statute to be susceptible to such a remedy. Pp. 6–10.
2. (c) Because an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statue in toto should obviate any concern about the Act’s life exception, this Court need not pass on the lower courts’ alternative holding. If the Act survives in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. P. 10. 390 F. 3d 53, vacated and remanded. O’CONNOR, J., delivered the opinion for a unanimous Court.