Brief of Amicus Curiae Eagle Forum Education & Legal Defense Fund in support of petitioner *.

AuthorSchlafly, Andrew L.

Interest of Amicus Curiae (1)

Eagle Forum Education and Legal Defense Fund ("Eagle Forum ELDF") is an Illinois nonprofit corporation organized in 1981. Eagle Forum ELDF is a pro-family group that has long advocated judicial restraint and fidelity to the text of the U.S. Constitution. In the abortion context, Eagle Forum ELDF opposes overreaching by federal courts in reviewing laws passed by state legislatures that provide for parental and informed consent in connection with abortion. Eagle Forum ELDF has a strong interest in ensuring adherence by federal courts to their limited role set forth in the Constitution, and submits this brief in support of limiting federal judicial review of state abortion statutes to the standard promulgated by this Court in reviewing other regulations of conduct.

Summary of Argument

It is axiomatic that federal jurisdiction is limited to actual cases and controversies, as set forth in Article III of the U.S. Constitution. Federal courts are not mini-legislatures, empowered to exercise veto power over statutes duly enacted by Congress or state legislatures. This Court articulated the widely followed standard for federal judicial review of legislation: a facial challenge can succeed only if there are no circumstances in which the legislation may be applied constitutionally United States v. Salerno, 481 U.S. 739, 745 (1987). That precedent represents an essential expression of limits on judicial power with respect to legislation. Courts are tribunals for adjudicating facts, not second-guessing legislation in a factual vacuum.

The existence of a large and politically powerful abortion industry in our Nation does not justify contradicting Salerno. Quite the contrary, abortion presents a compelling need to develop a factual record of application of a statute prior to passing judgment on it in a court. Judges are skilled in law but lack medical training, and they are particularly unsuited to sift medical fact from fiction in the absence of an actual implementation of a parental notification law. If the effects of the New Hampshire legislation are as dreadful as Respondents claim, then they would have no trouble presenting a court with an unconstitutional implementation to litigate their claims.

The court below erred in ignoring the harmful health effects of abortion, and therefore the need to notify parents of unemancipated minors prior to performing it. Growing recognition of the tragic causation by abortion of breast cancer and premature births reinforces the legitimacy of state laws requiring parental or informed consent for minors having abortion. Just as the deadly harms of smoking were kept quiet for decades, the fatal physical effects of abortion are rarely disclosed to the subjects of an abortion. States have a substantial interest, even a compelling one, to ensure that minors considering an abortion hear from mature voices other than the abortionists who stand to profit from the procedure. If health of the minor were the real concern, then all would favor parental notification so that the family health history of the patient may be fully considered. If the mother of the minor herself had breast cancer--a fact of which the minor might not be aware--then performing the abortion could increase the daughter's chance of breast cancer to a near certainty. "At best, [a teenager's abortion] will give her a 30% risk of breast cancer in her lifetime. At worst, if she also has a family history of breast cancer, it will nearly guarantee this." So observed breast surgeon Angela Lanfranchi, M.D., F.A.C.S., in her statement to the press at the Population Research Institute Conference, in Santa Clara, California (April 5, 2002). (2) Moreover, if the minor is considering having a family in her future--again a consideration best discussed with her parents--then having an abortion greatly increases the chance of a debilitating premature birth and attendant injuries such as cerebral palsy. See Point III, infra.

The New Hampshire statute at issue can plainly be applied in a constitutional manner for the valid and commendable purpose of allowing minors to be fully informed with the wisdom of their parents, including medical considerations, prior to agreeing to have the life-changing operation of abortion. It is legally and medically unsound for federal courts to violate the Salerno standard and strike down legislation in a factual darkness.


  1. The U.S. Constitution and Salerno Require Reversal of the Facial Invalidation of the New Hampshire Abortion Statute.

    The facial invalidation of statutes permitting constitutional implementation violates the "case or controversy" requirement for adjudication. U.S. CONST. Art. III, [section] 2. "[U]nder Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power." Stark v. Wickard, 321 U.S. 288, 310 (1944). To hold otherwise "would enable the courts ... 'to assume a position of authority over the governmental acts of another and co-equal department.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (quoting Massachusetts v. Mellon, 262 U.S. 447 (1923)).

    The federal judiciary does not sit as a supra-legislature over the actions of the States. A plaintiff such as Respondent Planned Parenthood of Northern New England cannot base its litigation on pure speculation that someone might someday suffer an unconstitutional injury due to a statute that has never been enforced. Courts are not venues for Platonic discussions about what might or might not occur. An actual case or controversy is required to establish Article III jurisdiction, and there is no exception carved out of Article III especially for abortion providers. Salerno requires implementation of the statute, regardless of whether a right is asserted under Roe v. Wade, 410 U.S. 113 (1973).

    In Salerno, this Court upheld the Bail Reform Act because "[t]he fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." Salerno, 481 U.S. at 745. Under this standard, the never-enforced New Hampshire parental notification law must be upheld. There is no evidence that it would be applied in an unconstitutional manner, and it has an obvious justification in safeguarding minors. The pure speculation offered for how the statute might be applied unconstitutionally is conjecture and nothing more.

    Despite the clear holding of Salerno, none of the plurality opinions in Casey so much as acknowledged its existence, perhaps reflecting an unwillingness to depart from Salerno. See Planned Parenthood v. Casey, 505 U.S. 833 (1992) (not one of the five Justices affirming Roe v. Wade even mentioning the Salerno test, despite its reference by the four Justices who agreed Roe should be overruled). Previous to Casey, this Court repeatedly cited Salerno in abortion cases. See, e.g., Rust v Sullivan, 500 U.S. 173, 183 (1991); Webster v. Reproductive Health Services, 492 U.S. 490, 524 (1989) (O'Connor, J., concurring). The Salerno test has since been widely and successfully applied elsewhere, even by the same appellate court below in dewing a facial challenge to restrictions on sidewalk counselors advising against abortion. See...

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