"no Set of Circumstances" v. "large Fraction of Cases": Debate Resolved--gonzales v. Carhart, 127 S. Ct. 1610 (2007)

• Publication year: 2021

87 Nebraska L. Rev. 759. "No Set of Circumstances" v. "Large Fraction of Cases": Debate Resolved--Gonzales v. Carhart, 127 S. Ct. 1610 (2007)

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Note(fn*)

"No Set of Circumstances" v. "Large Fraction of Cases": Debate Resolved--Gonzales v. Carhart, 127 S. Ct. 1610 (2007)

TABLE OF CONTENTS

I. Introduction ...................................................... 760
II. Background ....................................................... 762
A. Legal Background of the Overbreadth Doctrine .................. 762
B. History of the First Amendment Overbreadth
Doctrine ...................................................... 764
C. Overbreadth Doctrine Outside of the First
Amendment ..................................................... 765
1. The Court's Words .......................................... 765
2. The Court's Actions ........................................ 766
D. Abortion Overbreadth Hypothetical ............................. 767
E. Abortion History Examining the Use of
Overbreadth ................................................... 768
F. Gonzales v. Carhart ........................................... 771
III. Analysis ........................................................ 775
A. The Court Should Reject Overbreadth in Abortion .............. 776
1. Arguments for Applying the Overbreadth
Doctrine Are Unpersuasive ................................. 777
a. Chilling Rationale in Abortion Cases ................... 778
b. Careful Drafting Rationale in Abortion
Cases .................................................. 781
2. Overbreadth Improperly Shifts Power Between
Branches .................................................. 782

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3. Overbreadth Cannot Be Properly Applied .................... 785
B. The Roberts Court Will Likely Reject Overbreadth
in Abortion .................................................. 787
IV. Conclusion ....................................................... 791

I. INTRODUCTION

When Gonzales v. Carhart(fn1) ("Carhart II") was announced, reactions were anything but soft-spoken or ambivalent. The case certainly struck a nerve; the decision was described on one hand as "a shocking setback,"(fn2) "irrational, voyeuristic, piggish and without redeeming legal value,"(fn3) and "alarming,"(fn4) but on the other hand as "a very historic decision"(fn5) and "incredibly important."(fn6) Despite the outcry it inspired, the decision's effect on actual abortions performed will be minimal. In Carhart II, the Supreme Court reversed the holdings of the Eighth and Ninth Circuit Courts of Appeals and upheld the Partial Birth Abortion Act of 2003.(fn7) The Act bars women from obtaining a partial-birth abortion,(fn8) a procedure which accounts for only .17% of all abortions, or approximately 2,232 annually, in the United States.(fn9) Further, the Act is unlikely to actually preclude these abortions--rather

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it will merely ensure that an alternate abortion procedure will be utilized.(fn10) Carhart II's real significance lies in the explanations and details of the majority opinion. Within the opinion, the Court rationalized and clarified, as well as clouded, previous jurisprudence on medical uncertainty, the appropriate standard of review, and the vagueness and overbreadth doctrines.

This Note focuses on what Carhart II signals for future legal analysis in determining when an abortion law is facially invalid. Noting that the standard for facial review in abortion cases remained undecided, the Carhart II majority suggested two possible standards.(fn11) The Court could apply the traditional rule that a law is facially invalid if "no set of circumstances exists under which the act would be valid."(fn12) Alternatively, the Court could apply a standard which facially invalidates a law if it imposes an undue burden "in a large fraction of the cases in which [it] is relevant."(fn13) However, instead of selecting a test, the Court followed the famous advice of Yogi Berra: "when you come to a fork in the road, take it."(fn14) The Court determined a facial challenge to the Act failed either test, and therefore stated, "We need not resolve that debate."(fn15)

This Note examines the resolution that the Court should adopt in the future. Part II provides background on the overbreadth doctrine, including a historical overview of the doctrine's application in its traditional context of the First Amendment. Further, Part II provides a brief review of abortion precedents with an emphasis on facial challenges and concludes with an analysis of the key holdings and rationalizations in Carhart II. In Part III, the Note analyzes the merits of the possible abortion overbreadth tests. Section A will analyze which test is superior, based on congruency with prior precedent and probable effects. Within this section, arguments for traditional overbreadth are considered and found to be unconvincing in the abortion context. This section also observes the inappropriate shift in power favoring the judicial branch that the overbreadth doctrine would cause within the abortion arena. This section ends with a discussion of the grave difficulty that would arise in applying a large-fraction test and the

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risk that such a test might tempt the Justices to adhere to their moral beliefs rather than the law. Finally, section B suggests which standard the Roberts Court would likely adopt if faced with such a decision, based on a review of the Justices' previous remarks and decisions.

II. BACKGROUND

A. Legal Background of the Overbreadth Doctrine

Under traditional challenges to the constitutionality of a statute, the deciding court issues either a facial or an as-applied holding.(fn16) An as-applied holding invalidates the law only as it pertains to a particular individual and their unique circumstances.(fn17) In considering an as-applied challenge, a court asks only whether the particular person's activities were constitutionally protected.(fn18) If the individual's rights were violated, then the breadth of the statute may be limited by simply severing the unconstitutional portions.(fn19) Alternatively, a facial challenge questions the constitutionality of the statute in its entirety.(fn20) In sum, statutes that are structurally unconstitutional typically require facial invalidation, while statutes that violate individual rights commonly require as-applied invalidation.(fn21)

Two types of facial invalidation have evolved as well.(fn22) The first reflects a "traditional" facial challenge, typically based on a structural issue in the statute. The statutory defect under such a challenge is not the statute's applicability but rather the statutory terms themselves.(fn23) The second type is the overbreadth facial challenge, which originally only applied to First Amendment cases.(fn24) An overbreadth challenge suggests a statute has too many unconstitutional applications, and they outweigh the constitutional applications to such an ex

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tent that the statute ought to be held facially unconstitutional.(fn25) Notably, a court must hypothesize possible applications of a statute to determine the relation of unconstitutional applications to all applications.(fn26) Thus, the court is using an "empirical" test to create a ratio of the applications.(fn27)

The traditional facial challenge standard was announced in United States v. Salerno:(fn28) "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenge must establish that no set of circumstances exists under which the Act would be valid."(fn29) To invalidate a statute under the Salerno standard, a court must not be able to hypothesize any possible constitutional applications of the statute.(fn30) Furthermore, an individual litigant's constitutional rights must have been burdened; otherwise, the no-set-of-circumstances test would fail. This means the litigant must also have a valid as-applied challenge, relying on his or her own constitutional rights. The stringent nature of the Salerno test indicates why courts tend to facially invalidate laws only for structural defects, which apply to all persons under the statute.(fn31) Despite strong criticism from both judges and commentators, the Salerno rule continues to govern facial challenges.(fn32)

In contrast, under an overbreadth challenge, the litigant does not argue that his or her actions were protected.(fn33) Instead, the litigant argues that the statute is unconstitutional as applied to "too many"

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people that are not presently before the court, and because of the number of these unconstitutional applications, the law should be stricken.(fn34) Thus, the overbreadth doctrine allows for third-party standing because the litigant is defending the rights of others not before the court.(fn35) The overbreadth doctrine also has less stringent rules for facially invalidating a statute. Even if there is a constitutional application of the statute, an overbreadth challenge allows invalidation of a statute as long as the statute is too broad. A better understanding of the intricacies of the overbreadth doctrine can be gained from the following review of overbreadth case law.

B. History of the First Amendment Overbreadth Doctrine

The overbreadth doctrine began with the 1940 Supreme Court case, Thornhill v. Alabama.(fn36) Thornhill noted that free speech rights are inherently important to democratic government as democracy requires the free exchange of ideas and an educated public.(fn37) To justify its actions, the Court spawned the overbreadth doctrine by stating that while the petitioner could not argue that his rights had been violated, he could "complain of the sweeping regulations."(fn38) Although the Court did not refer to its newly created doctrine as one of overbreadth, it applied third-party standing and allowed the litigant to challenge...