Must Courts Srike Down the Whole Statute When it is Just a Litte Unconstitutional?

Ayotte v. Planned Parenthood of Northern New Eng.

This case concerns a parental notification law in New Hampsire, which bars abortions to minors until 48 hours after a guardian or conservator has been notified (in person or by mail), unless (1) the abortion is necessary to prevent the minor’s death, and there is insufficient time to notify the guardian; (2) the guardian certifies that they have been notified; or (3) a district and appellate judge rule, in an entirely confidential, unconditionally accessible, and expedited judicial process that (a) the minor is mature and capable of informed consent, or (b) that the abortion is in the minor’s best interests. The issue in this case is, having found the law unconstitutional for (among other things) a lack of provision to protect the health of the minor, and the vagueness of the life protection requirement, whether a lower court must invalidate the entire law.

A unanimous Court first recognizes the legitimacy of the law’s purpose, stating that the state unquestionably has the authority to require parental involvement, and then notes that New Hampshire concedes both that a law may not prohibit abortions that are “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,” and that cases could exist where the law would be unconstitutional as applied. The Court then puts forth three considerations that bear on the question. First, the Court tries to minimalize its nullification. Second, it avoids rewriting legislation, a consideration that depends on how well articulated “the background constitutional rules.” Finally, “the touchstone of any decision about remedy is legislative intent,” though the Court must be “wary of legislatures who would rely on [its] intervention, for ‘[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside.’”

Since the New Hampshire law contains a severability clause (“[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.”), and because “so long as they are faithful to the legislative intent, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application,” the case is remanded so the lower courts can consider other issues involved.