A radically immodest judicial modesty: the end of facial challenges to abortion regulations and the future of the health exception in the Roberts era.

• Author: Hill, B. Jessie
• Position: Law Review Symposium 2009

"This faux judicial restraint is judicial obfuscation." (1)

INTRODUCTION

If there is anything as strongly associated in the public mind with Chief Justice John Roberts as his black robe and judicial temperament, it is surely his claim to judicial modesty. In his confirmation hearings, the Chief Justice expressed his desire "to be known as a modest judge," and several witnesses testified that he exhibited such humility. (2) Of course, it is still early to assess whether the Chief Justice, and the Supreme Court as a whole, have followed the Chief Justice's professed imperative. But some commentators have already begun to suggest that, at least so far, there are signs of newfound judicial restraint in the Roberts Court. (3) One example is the Roberts Court's expressed preference for narrower, as-applied decisionmaking in constitutional cases, as opposed to striking down statutes on their face.

And indeed, the Supreme Court has turned away facial challenges or otherwise expressed a preference for making decisions on an as-applied basis in a number of cases since Chief Justice Roberts joined the body. (4) Examples range across a wide spectrum of subject matter, including voting rights cases, (5) an Americans with Disabilities Act case, (6) and--somewhat more surprisingly, given the Supreme Court's traditional solicitude for facial challenges in these contexts--First Amendment and abortion cases. (7) Of course, if this series of Roberts Court cases indicates a trend, it is not an entirely new one. At least since United States v. Salerno, (8) the 1987 case in which the Court seemingly held that a statute should not be struck down on its face unless "no set of circumstances exists under which the Act would be valid," (9) and arguably for some time before that, the Supreme Court has expressed a preference for as-applied adjudication. (10)

But perhaps one of the most radical and important instances of the Court's rejection of a facial challenge was in Gonzales v. Carhart, (11) the federal "partial-birth" abortion ban case. The Court's decision in that case was highly unsettling with respect to prior precedent. It upheld a criminal abortion statute that lacked an exception for cases of medical necessity, despite the fact that the Court had consistently emphasized the need for such an exception since Roe v. Wade. (12) Further, the Gonzales decision may have truly sweeping implications for the future of substantive abortion doctrine. In this essay, I therefore focus specifically on what the Roberts Court did in Gonzales v. Carhart, as well as in its predecessor Ayotte v. Planned Parenthood of Northern New England, (13) in order to consider the meaning and impact of the Roberts Court's preference for as-applied adjudication in one specific area--abortion jurisprudence. Moreover, I evaluate the likely impact of these rulings in light of Chief Justice Roberts's expressed preference for judicially modest rulings.

Of course, the expression "judicial modesty," like its opposite "judicial activism," is a term that can mean many things to many people--and consequently may not mean much at all. (14) As used in connection with Chief Justice Roberts, however, it nonetheless seems to have certain definable qualities. It appears to refer to a preference for narrow, incremental rulings that do not overstep appropriate judicial bounds or decide unnecessary questions, but rather respect the roles of the other branches of government and adhere to precedent. (15) It is in this sense that I am using the term "judicial modesty." Using this definition of judicial modesty, I argue that Ayotte and Gonzales, which on their surface appear to indicate a preference for modest, narrow rulings, are anything but modest in their implications. These decisions call for federal judges to re-write legislation and to make judgments in areas in which they have little expertise. They thus assure continuing federal court involvement in micro-legislating the scope of abortion rights. In addition, I argue that the holdings in Gonzales and Ayotte, which ostensibly turn on the appropriateness of facial challenges, are really about re-shaping the underlying substantive constitutional law pertaining to abortion rights. As such, they represent an instance of the remedial tail wagging the substantive dog--a case of the proper remedy, as determined by the Supreme Court, shaping the underlying right. In this sense, these cases form a stark contrast with prior judicial practice, in which the availability of facial invalidation depended at least in part on the nature of the underlying substantive constitutional doctrine, rather than vice versa. (16) Thus, although on the surface, the procedural aspects of Gonzales and Ayotte raise concerns about the effect on plaintiffs' access to courts to challenge abortion statutes, perhaps the more important and far-reaching concern is how they will affect the future nature of the abortion right itself.

In Part I of this essay, I set forth the difference between facial and as-applied challenges and briefly summarize the scholarship concerning the availability of facial challenges. I also note the relationship between the facial/as-applied distinction and other concepts such as standing, severability, and remedies, and I discuss the history of facial challenges in the abortion context specifically. In Part II, I describe the Supreme Court's decisions in Ayotte and Gonzales. Finally, in Part III, I explain why the Roberts Court's stated preference for as-applied challenges, at least as it has been presented in the abortion cases, does not serve the end of judicial modesty. In fact, those cases have far-reaching implications for substantive abortion doctrine and promise to continue to embroil the federal courts intimately in future disputes over the contours of the abortion right.

1. FACIAL AND As-APPLIED CHALLENGES

   Perhaps the only ground of agreement among scholars and jurists with respect to facial and as-applied challenges is that the doctrine is hopelessly muddled. (17) Debate has centered on the question of when a facial challenge may be entertained as well as on the meaning of the distinction--if any--itself. This confusion is further intensified by the fact that the facial/as-applied distinction intersects and overlaps with several other concepts, including standing, severability, and courts' remedial powers. Moreover, there are multiple understandings of the purposes behind the distinction and therefore multiple views about the issue of when facial challenges should be available. This Part nonetheless takes on the daunting task of explaining concisely the main features of facial and as-applied challenges and of the scholarly debate about their appropriateness.

   1. The Meaning of "Facial" and "As-Applied" Challenges

      A facial challenge is generally understood to be a challenge to a law in all its applications; it is also often a claim that a law's unconstitutionality can be determined simply by looking at its statutory language, independent of any particular set of facts or litigants. (18) As-applied challenges, by contrast, involve the assertion that a law is unconstitutional only in a specific circumstance or set of circumstances, or with respect to a particular individual or group of individuals. (19) However, even the description of the difference between facial and as-applied challenges is subject to dispute. Moreover, it is doubtful whether the principles governing the appropriateness and availability of facial challenges can be described in any trans-substantive manner; rather, it seems that the shape, meaning, and appropriateness of facial and as-applied challenges differs depending on the specific constitutional doctrine under which a given law is challenged. (20) This Part therefore briefly reviews the broad contours of the scholarly debate over the meaning and appropriateness of facial challenges and notes the relationship of this doctrine to other doctrines such as standing, severability, and remedies. It then describes the use, meaning, and importance of facial challenges in one specific doctrinal context--the abortion context.

      Some scholars have asserted that the very distinction between facial and as-applied challenges is meaningless. Professor Richard Fallon, for example, claims that every constitutional challenge is actually an as-applied challenge because of the longstanding rule that "[i]n order to raise a constitutional objection to a statute, a litigant must always assert that the statute's application to her case violates the Constitution." (21) In his view, facial invalidation of a law often occurs simply as a consequence of the particular substantive doctrinal test applied by the court. (22) To the extent that courts appear to "invalidate" statutes on their face, however, such invalidation is not actually within the power of courts to effect; rather, in the course of ruling on an as-applied challenge, a court will often make pronouncements that, through the mechanisms of preclusion doctrine and stare decisis, have the effect of rendering a law unenforceable-or at least unenforced--in all its applications. (23)

      Professor Matthew Adler, by contrast, has argued that all constitutional challenges are facial challenges, in the sense that they all vindicate a constitutional right against a certain kind of rule. (24) Constitutional law protects individuals against government adoption of rules "with the wrong predicate or history"; thus the challenged rule is in some sense always judged on its face (for example, in terms of its purpose or its mode of drawing classifications) and without reference to the specific facts at hand. (25) As a result, he contends that the doctrine of facial and as-applied challenges is simply a doctrine of remedies "and no more than that. It is a doctrine that answers the question: Where a rule is constitutionally invalid, should the reviewing court repeal the invalid rule...