Ayotte v Planned Parenthood: The Remedy For Unconstitutional Laws

Ayotte v Planned Parenthood of Northern New England 546 U.S. 320 (2006), is the parental notification of abortion case that many had hoped would overturn Roe v. Wade.

Instead, the U.S. Supreme Court declined to revisit the legality of abortion in Ayotte v Planned Parenthood, in favor of addressing the proper remedy when a portion of a statute is found unconstitutional. In a unanimous decision, and the last one written by Justice O’Conner before her retirement, the justices held that it is not always necessary to strike down an unconstitutional law in its entirety.

New Hampshire’s Parental Notification Prior to Abortion Act prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice is provided to her parent or guardian. The statute 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.

Planned Parenthood of Northern New England, who provides abortions for pregnant minors and expected to provide emergency abortions for them in the future, filed suit under 42 U.S.C. § 1983. The suit alleged that the abortion law was unconstitutional because it lacked a health exception and because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision. The District Court declared the law unconstitutional and permanently enjoined its enforcement, and the First Circuit affirmed.

The Court avoided the larger constitutional issues in favor of overruling the First Circuit’s remedy. Justice Sandra Day O’Connor wrote the Court’s unanimous decision.

The Court concluded in Ayotte v Planned Parenthood that the New Hampshire abortion law would, in some circumstances, restrict access to abortion more strictly than allowable under the abortion precedent established in Planned Parenthood of Southeastern Pa. v. Casey, which held that “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.”

However, the Court concluded that the proper remedy was not to strike down the entire law. “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,” Justice O’Connor explained.

“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,” Justice O’Connor added. According to the Court, the lower courts could have instead issued a declaratory judgment and an injunction prohibiting the Act’s unconstitutional application.