Balkin on Ayotte

Yale law prof Jack Balkin has some interesting observations on yesterday's Supreme Court decision on New Hampshire's parental notification statute, concluding that:

On the one hand, New Hampshire and abortion opponents win to the extent that plaintiffs must now bring what are effectively as applied challenges to new abortion statutes. If the statute is unconstitutional only as to a small number of persons, courts should not strike the whole statute down but impose carve-outs. This means that legislatures are freer to pass restrictive abortion laws with the idea that courts will carve out unconstitutional applications later one.

On the other hand, New Hampshire and abortion opponents lose to the extent that the new rule the Court adopts is not exactly identical to an as-applied challenge. First, it does not necessarily require the development of a record after a full trial, although the court may of course demand one. Second, courts are allowed to hold unconstitutional applications invalid immediately as to everyone, and not just as applied to the parties before the court. Third, the courts can hold multiple features of the statute unconstitutional immediately. This last point becomes clear in the instructions on remand: O'Connor says that the lower court should consider the other constitutional objections that the plaintiffs raise. Thus, legislatures and abortion opponents lose to the extent that courts are given greater leeway to cut up their abortion statutes.

And this brings me to my final point about winners and losers. Under the guise of respecting legislatures, O'Connor has given the federal courts new powers to rewrite abortion statutes based on existing doctrinal categories. This is consistent with O'Connor's general tendency throughout her career to use seemingly narrow holdings to maximize future judicial discretion.

So if you want to know who really was the big winner in Ayotte, the answer is simple: It was the federal courts. They are now freed up to selectively rewrite new abortion statutes in the asserted name of respecting legislative intention and democracy.

Rob