Excerpts from Friend-of-the-Court Briefs in Support of New Hampshire's Parental Notification Law

Editor's note. In the next few pages you will find excerpts from various amici (friends of the court) briefs filed in support of the New Hampshire parental notification law at issue in Ayotte v. Planned Parenthood of Northern New England. Many internal citations have been omitted in the interest of clarity.

Brief Submitted by the United States Department of Justice

In facially invalidating the New Hampshire parental-notification statue, the court of appeals misapplied this Court's precedents both on facial challenges and on the substantive law concerning abortion. Under the standard articulated in United States v. Salerno (1987), a plaintiff bringing a facial challenge to a statue (and thus seeking to render it void in all its applications) must demonstrate that the statute is in fact invalid in all its applications. That standard is both consistent with separation-of-powers principles and easy to administer. This Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) did not purport to alter the standard for facial challenges in the abortion context generally. At most, it altered the standard for facial challenges in the narrow context of spousal-notification provisions. Because the Court did not purport to modify the facial-challenge standard more broadly, the default rule of Salerno controls here. There is no reason to abandon Salerno for facial challenges to statues regulating abortion, or to import overbreadth principles that are tailored to the First Amendment free-speech context. To the extent that it is desirable to allow access to courts to challenge problematic applications of an abortion-related statute before plaintiffs suffer irreparable injury, such challenges can go forward on an as-applied basis, without the need facially to invalidate the entirety of the statute.

In any event, the dispute concerning whether to employ the "no set of circumstances" Salerno standard or the "large fraction" Casey standard is largely beside the point in this case. Because the vast majority of applications of New Hampshire's parental-notification statute raise no constitutional concern, the statute would survive facial attack under either standard. The court of appeals struck down the statute only by applying what amounts to an anti-Salerno standard, under which the possibility of a single unconstitutional application doomed the statute in toto. That was error.

The court of appeals likewise erred in extrapolating from this Court's decision in Stenberg v. Carhart (2000) a bright-line requirement that any statue regulating abortion must contain an express health exception: that is, an exception for cases in which an abortion, or a particular type of abortion, is necessary to preserve the health of the mother. Such a reading of Stenberg would be inconsistent with numerous cases in which this Court has upheld parental-notification statutes without demanding that those statutes contain an express health exception. Instead, under Stenberg, an express health exception is necessary only in those contexts in which the absence of such an undue burden. The absence of a health exception in some laws regulating abortion, such as a recordkeeping statute, would in no way impose an undue burden. Just as there is no need for a health exception to a recordkeeping statute, so too there is no need for a general health exception to a parental-notification statute. In cases involving non-emergency health issues, compliance with the statute's notification (or judicial-bypass) procedures can occur without imposing any undue burden.

To be sure, constitutional difficulties may arise to the extent that statue is applied in the specific context of emergency health risks, in which the emergency character of the situation would not allow time for the notification or judicial-bypass options to run their course. But it is the emergency context specifically, not the health context more generally, that creates potential difficulties. The courts below, however, appear to have faulted the statute for the absence of a more general health exception and did not require any specific showing as to the frequency with which health-related emergencies would arise. Respondents, for their part, presented no evidence to suggest that cases in which there will be emergencies that would preclude the ordinary operation of the statue constitute more than a small fraction of the statute's total applications, and thus provided no basis for striking down the statute in all its applications.

Finally, respondents failed to demonstrate any deficiency in the statute's life exception, which provides that a doctor may perform an immediate abortion upon concluding, in his or her subjective professional judgment, that an abortion is necessary to preserve the mother's life. The court of appeals' decision to invalidate the statute on that basis was thus also erroneous.

Brief Submitted by Mary Ayotte, Attorney General for the State of New Hampshire

New Hampshire's Parental Notification Prior to Abortion Act does not present a substantial obstacle to any woman's right to choose an abortion; instead, the Act provides pregnant minors with the benefit of parental guidance and assistance in exercising what is undoubtedly a difficult choice. This Court's well-established judgment that parental notification statutes are constitutional is "based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart." Planned Parenthood of Southeastern Penn. v. Casey (1992). New Hampshire's Act promotes compelling state interests, not the least of which is protecting the health of the pregnant minor by providing an opportunity for parents to supply essential medical history information to the physician. New Hampshire's Act contains a judicial bypass provision and makes the courts available twenty-four hours a day, seven days a week to allow a pregnant minor to avoid the notification and waiting periods of the act when it is in her best interest--such as the hypothetical case where an emergent health issue arises and the minor does not wish to or cannot notify a parent.

The court of appeals' decision, facially striking down the entire act based principally on its conclusion that the lack of a general health exception rendered the act wholly invalid, misconstrued this Court's decision in Stenberg v. Carhart (2000). Stenberg did not hold that every regulation touching on abortion in any way has to include a general health provision to be constitutionally sound. A health exception is only required when there is substantial medical authority that supports the proposition that a specific regulation could pose a significant risk to a women's health. Here, this type of substantial medical authority was not presented. Moreover, over fifteen years ago in Hodgson v. Minnesota (1990), a virtually identical parental notification statute, which did not contain a general health exception and contained the same death exception as New Hampshire's Act, was found to be constitutional. There is no evidence in the record that over the last decade and a half, Minnesota's act has operated to put minors at risk and surely had it operated in such a manner, it would have been further challenged or repealed.

Even if this Court finds that New Hampshire's Act lacks a constitutionally required health exception or that its death exception is drawn too narrowly, the Act's judicial bypass provision nevertheless saves the act by providing a mechanism to address emergent health issues. The Act requires court availability twenty-four hours a day, seven days a week. There is no reason to believe that a judge will not act immediately if a pregnant minor's health is at stake. Contrary to the court of appeals' concerns about potential delays, New Hampshire is entitled to a presumption that judges will act in accordance with the Act's time prescriptions.

The court of appeals also failed to give proper deference to a state court's prerogative to interpret the exception in the act allowing a physician to perform an immediate abortion when "necessary to prevent the minor's death," in a way that preserves the constitutionality of the Act. A New Hampshire state court could easily read the "necessity" language in the act to include in the good faith medical judgment of the physician. The Court of Appeals wrongfully concluded that New Hampshire's death exception is overly narrow.

Finally, the court of appeals' decision is undermined by its failure to apply the proper standard of review in evaluating the respondent's pre-enforcement, facial challenge to the Act. The court of appeals improperly construed this court's well-established test from United States v. Salerno (1987) that an act is constitutional on its face unless the challengers can establish "no set of circumstances" under which it may validly operate as conflicting with Casey's substantive constitutional standard that an abortion regulation is invalid if it constitutes an undue burden on a woman's right to choose. Properly interpreting these standards together, in order to succeed on a facial challenge to an abortion regulation, the respondents should have been required to show that under no set of circumstances can New Hampshire's Act be applied in a manner which is not an undue burden. Applying the proper standard, respondent's facial challenge fails because New Hampshire's Act operates constitutionally in most, if not all, cases.

This Court's practice of avoiding unnecessary or premature decisions of constitutional issues and adjudicating constitutional questions only in concrete factual situations supports continued application of Salerno's "no set of circumstances" test to all non-First Amendment facial challenges. The Salerno standard properly favors as-applied adjudication, allowing statutes to be refined on a case-by-case basis by preventing improper applications, rather than totally invalidating statutes which further legitimate state interests and are capable of constitutional application. This allows states the opportunity to interpret and enforce statutes to avoid constitutional infirmities, and limits unnecessary intrusion by federal courts.

There is no justification for departing from Salerno's logical rule to facial challenges for abortion regulations, and in fact, this court has applied the rule to such challenges. See Rust v. Sullivan (1991); Ohio v. Akron Ctr. for Reproductive Health (1990) ("Akron II"). The court of appeals' enjoinder of New Hampshire's notification act "based upon a worst-case analysis that may occur," such as its concerns about a hypothetical case in which the Act might place a pregnant minor's health or life at risk, demonstrates the need for this Court to uphold the validity of the Salerno rule in abortion cases.

Finally, if the Court determines that New Hampshire's Act is unconstitutional in its application to emergent health or death cases, the relief provided by the First Circuit in invalidating the entire statute is not warranted. The New Hampshire Act contains a clear severability provision that if any provision "or the application thereof to any person or circumstances is held invalid, such invalidity shall not effect the provisions of this subdivision which can be given effect." Severance is a state law issue. New Hampshire law recognizes that unconstitutional applications of a statute can be severed from the constitutional applications of the same. If this court affirms the judgment of the court of appeals that in certain applications the act operates invalidly then this Court should respect the New Hampshire legislature's express intent to preserve the Act's constitutional applications by issuing an injunction against only those applications which violate the law.

Brief of New Hampshire Representatives and Senators

As documented in amici briefs currently before this Court, abortion entails serious health risks to women of any age, and the immaturity of minors entails special risks. Indeed, medical studies over the last three decades have created substantial data on five significant risks from abortion: increased risk of placenta previa; risk of premature birth in subsequent pregnancies; increased risk of mental distress or suicide; loss of the protective effect of full-term pregnancies against breast cancer; and increased risk of substance abuse.

Some of the data substantiating these risks was not available when this Court decided Casey. One landmark article in 2003 examined medical studies on abortion between 1966 and 2002 in order to assess the long-term physical and psychological health consequences of induced abortion. The researchers concluded that women contemplating abortion should be informed of the following: their risk of subsequent preterm birth will be elevated; they will lose the protective effect of a full-term delivery on their lifetime risk of breast carcinoma; there are increased rates of placenta previa after abortion; and the disputed independent risk of induced abortion on breast cancer risk. The study also found that induced abortion increases the risks for mood disorders "substantial enough to provoke attempts of self-harm."

Left to their own devices, minors cannot adequately monitor these significant health risks. These significant health risks justify the application of the tradition facial challenge standard to challenges to parental notice and consent statutes. Likewise, these risks justify a strict medical emergency exception. The traditional facial challenge standard is also necessary to focus federal courts on more than simply increasing access to and minimizing the costs of abortion for minors.

Abortion litigation is unique because Singleton v. Wulff empowered abortion providers to represent women in abortion litigation and to challenge statutes that regulate the provider in seeking to protect minors. In this unique context of abortion litigation, a facial challenge voids a statute completely, vests abortion providers with absolute discretion, and eliminates common sense regulations. Yet if the traditional facial challenge standard is utilized, failure to demonstrate facial invalidity would compel the abortion providers to resort to an as applied challenge and a real-life factual demonstration involving the particular abortion provider. Requiring such a challenge would appropriately induce the federal courts to ask serious, probing questions about whether a statute is in fact an "undue burden" or any burden at all compared to the benefit it provides. See Casey, 505 U.S. at 873-75 (stating that not every burden is undue).

Brief Submitted by the Storer Foundation, An Educational Foundation of the National Right to Life Committee

The [New Hampshire parental notification] Act provides a judicial framework for deciding whether a minor is a competent decision maker or, if she is not, whether an abortion and parental notification of the abortion are in the minor's best interests.

Under the Act, minors are presumed [to be legally] incompetent, and thus unable to make their own decision for abortion, at least without the parental consultation that presumably attends a parental notice, or, after a court determination that this is not in the minor's interests, then with judicial consent if the court holds that an abortion is in the minor's best interests.

The abortion providers should not be permitted third party standing to attack this framework as though they adequately or impartially represented the interests of their minor patients….[T]hey have no special competence to determine whether the minor is mature enough to make a decision for or against an abortion, whether the proposed abortion is generally in the minor's best interest, or whether the degree of confidentiality about the proposed abortion on the minor is appropriate….[T]hey have no proper role in deciding for the minor whether such an abortion should in fact be performed…much less whether the child's parents should be notified that the abortion is to be performed.