ACSBlog: The Blog of the American Constitution Society

by Talcott Camp and Brigitte Amiri, ACLU Foundation

Generally when people hear that a court has found a law unconstitutional, they assume the court has struck down the whole law. But that is not always the case. After a court determines that a law is unconstitutional, it must next decide what to do: Should the court strike down the whole law, or is there some way that the law can be salvaged in part? These steps - (1) finding a law unconstitutional, and (2) figuring out what to do about it - are separate and governed by different legal standards. In the federal abortion ban cases, however, the government asks the U.S. Supreme Court to merge these two steps and set a dangerous precedent.

The first question - whether an abortion restriction is unconstitutional - is governed by relevant Supreme Court decisions. Those cases say that an abortion restriction is unconstitutional if it creates an "undue burden" (or, in other words, a "substantial obstacle") for women seeking abortions, or if it endangers women's health. For example, the Court in Planned Parenthood v. Casey, 505 U.S. 833 (1992), held that requiring married women to notify their spouses before an abortion was unconstitutional because it would create a substantial obstacle for women in abusive marriages. The Supreme Court has also most recently held a law unconstitutional for endangering women's health. In Ayotte v. Planned Parenthood, 126 S. Ct. 961 (2006), the Court held that a law requiring teens to notify a parent prior to obtaining an abortion was unconstitutional because it lacked protections for teens facing medical emergencies.

After finding a law unconstitutional under these standards, a court moves to the second step: figuring out what to do with the law. The court considers whether it must strike down the whole law, or whether it is possible to allow the state to enforce the law in some circumstances. For example the Supreme Court in Ayotte - having found the parental notification law unconstitutional because it lacked a medical emergency exception - then considered whether it would be possible to uphold the law except in medical emergencies. During this second step, the court considers what the legislature intended when it passed the law. For example, would the legislature have passed a particular abortion restriction with a health exception if it had the chance? If the answer is no, the court must strike the law in its entirety. If the answer is yes, the court may be able to uphold the law in some circumstances and strike down only the unconstitutional applications. However, the court must still strike the law in its entirety if salvaging part of it would require, in effect, substantially rewriting the law.

There are additional grounds on which plaintiffs may persuade a court that the only way to remedy an unconstitutional law is to strike it in its entirety. One way is to prove that, under United States v. Salerno, 481 U.S. 739 (1987), the law is unconstitutional in all cases. In the abortion context, courts must also strike down laws entirely if they are unconstitutional for a "large fraction" of women affected. In Casey, for example, the Court struck down the entire spousal notice restriction because it was an "undue burden" for a "large fraction" of affected women - those in abusive marriages.

In the federal abortion ban cases, the government attempts to merge the two steps: it argues that the plaintiffs cannot show that the ban is unconstitutional (that is, they cannot win even on step one) if they do not show that the law is unconstitutional for all women, or at least for a "large fraction" of women. This is simply not the test. Under the analysis discussed above, the Court must find the federal abortion ban unconstitutional even if the ban creates an "undue burden" for only one group of women, or threatens only some women's health. Only after finding the ban unconstitutional will the Court consider what to do about it, and only then ask whether the ban is unconstitutional for a "large fraction" of women, what Congress intended, and how much rewriting would be required. If the government's argument prevails, abortion restrictions that lack a health exception, for example, could withstand legal challenge where the lack of health exception affects relatively few women. As a result, women in medical emergencies could be denied care.