The Casey standard for evaluating facial attacks on abortion statutes.

• Author: Ford, John Christopher

INTRODUCTION

Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion,(1) the Justices have decided abortion cases with reference to such weighty matters as religious freedom,(2) the disadvantaged position of women in society,(3) and the proper role of the judiciary.(4) Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education(5) in their importance to the nation.(6) While the Court has focused on the big issues, however, it has neglected an equally important, if less emotionally compelling, one: namely, under what circumstances should a statute restricting access to abortion be invalidated "on its face"?

A litigant can attack the constitutionality of a statute either "on its face" or "as applied."(7) The effect of a judicial decision depends greatly on which type of challenge is brought to the Court.(8) When the Supreme Court declares a state statute unconstitutional as applied to a particular defendant, the state cannot apply the statute to the defendant's protected conduct. The state may, however, continue enforcing the statute against all others.(9) When the Supreme Court upholds a facial challenge, however, enforcement must stop altogether.(10) Successful facial challenges, in short, nullify a state law.(11)

The standard by which to evaluate facial attacks on statutes that restrict women's access to abortion services has become a momentous issue for a variety of reasons. First, facial challenges, rather than as-applied challenges, are the norm in the abortion arena, as physicians and interest groups such as Planned Parenthood regularly seek to have state statutes struck down in their entirety.(12) Second, since Planned Parenthood v. Casey's(13) strong reaffirmation of the existence of a constitutional right to an abortion in 1992, states defending laws that restrict women's access to abortion increasingly use the standard of review for facial attacks as a legal tool to preserve the operation of their laws. Prior to Casey, many states had argued that Roe itself should be overturned.(14) Third, by definition, the standard for evaluating a facial attack determines how convincing the facial challengers' showing of unconstitutionality must be in order to win their case. The choice between a more or less stringent standard determines, in borderline cases, whether a constitutionally questionable statute will be struck down as a whole or remain vital, subject only to as-applied challenges brought by aggrieved individuals.(15)

Sensitive to the significant effect of facial invalidation generally, the Supreme Court in United States v. Salerno(16) announced a test, which this Note labels the "no-set-of-circumstances test," making it nearly impossible to succeed on a facial attack. Without citing precedent, the Salerno majority stated that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."(17) Salerno created -- or perhaps merely recognized -- a bifurcated structure for evaluating facial attacks. On the first tier lie cases involving First Amendment rights, in which the overbreadth standard controls facial attacks. Under the First Amendment overbreadth doctrine' facial challengers succeed upon proof that a questioned statute is capable of a "substantial number" of unconstitutional applications.(18) On the second tier rest all other facial attacks, and they are governed by the no-set-of-circumstances test.(19)

The no-set-of-circumstances test has appropriately been called "draconian" in effect, rendering it nearly impossible to succeed on a facial challenge.(20) This is especially true in the abortion context. If the Supreme Court were faithful to Salerno, it would reject every facial attack on statutes restricting access to abortions.(21) For instance, it would have to reject a facial challenge to a law declaring all abortions illegal because the law could be applied constitutionally to a woman who is eight months pregnant -- that is, after all, one circumstance in which a state undoubtedly has the constitutional authority to prohibit an abortion.(22)

The Court has not followed that course. It has never made precisely clear, however, what standard it does use to evaluate the facial attacks before it in the abortion context.(23) Planned Parenthood v. Casey muddied the waters even more. The plurality decision used a standard of review markedly different from the no-set-of-circumstances test. In striking down Pennsylvania's husband-notification requirement(24) -- and without breathing a word of its departure from Salerno -- the plurality explained that the requirement was facially invalid for the following reason: "[I]n a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion."(25) This test shows much less deference to statutes than the no-set-of-circumstances test. Instead of having to prove the unconstitutionality of every conceivable application of a statute, the Casey plaintiffs only needed to show that a "large fraction" of applications would infringe on constitutional rights in order to invalidate the statute's provisions.(26)

The various opinions in Casey dealt largely with the question of whether to overrule Roe v. Wade.(27) They did not address at any great length the standard for evaluating facial challenges, which once again was relegated to sideline status in the most celebrated legal debate of the late twentieth century.(28)

Casey left lower federal courts to face the difficult question of whether Casey silently established a new standard of review for facial attacks on statutes restricting abortions or whether the no-set-of-circumstances test applies to abortion cases. The federal courts of appeals have come to divergent conclusions.(29) In Barnes v. Moore,(30) the Fifth Circuit noted that Casey "may have applied" a new standard, but ultimately followed Salerno.(31) The Barnes court further justified its decision by analogizing the statute at issue, which it did not strike down, to parts of the Pennsylvania statute found valid in Casey,(32) a technique which many courts adjudicating facial challenges have used.(33) In contrast, on remand, the Third Circuit found that Casey set a new standard.(34) The Eighth Circuit, after initially avoiding the issue, also found that Casey "effectively overruled Salerno for facial challenges to abortion statutes."(35) At the Supreme Court level, two of Casey's three-member plurality, Justices O'Connor and Souter, have stated that Casey overruled Salerno,(36) while Justices Rehnquist and Scalia, in contrast, have stated that Salerno should control abortion cases.(37)

This Note argues that Planned Parenthood v. Casey established a new standard for facial attacks on abortion laws and that it is the correct one to apply to any facial attack on state statutes that allegedly infringe on the constitutional right to have an abortion. Part I of this Note argues that the Casey test is in harmony with previous abortion decisions, and that these decisions have drawn heavily on the overbreadth doctrine used to adjudicate facial challenges based on the First Amendment. Part I then demonstrates why the theoretical justifications for the overbreadth doctrine suggest that it should be applied to abortion cases as well. Part II explains how a judicial analysis under the new Casey standard should proceed. It concludes that the Casey test's emphasis on the factual record makes it superior to current First Amendment overbreadth jurisprudence for use in abortion cases.

1. OVERBREADTH DOCTRINE IS MORE APPROPRIATE FOR ABORTION CASES THAN THE SALERNO NO-SET-OF-CIRCUMSTANCES TEST

   Overbreadth, like obscenity, undoubtedly exists but is very difficult to define.(38) Most can agree on at least this much: the overbreadth doctrine allows a litigant to challenge the constitutionality of a statute, regardless of whether the litigant's own conduct is constitutionally protected, on the basis that the statute prohibits other persons' protected conduct.(39) This type of analysis is an exception to the often-invoked rule that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court."(40)

   For instance, in one overbreadth case, a defendant was charged under a Houston ordinance making it a crime to "interrupt any policeman in the execution of his duty."(41) The defendant had attempted to distract some police officers from arresting his friends.(42) Despite the fact that his own activity may very well not have been protected under the First Amendment, his overbreadth claim succeeded, and the ordinance was struck down on its face, because the ordinance could have applied to the protected speech of other people not before the court.(43) For example, a person who calmly utters a political statement might inadvertently "interrupt" a policeman, although that person's speech undoubtedly could not become the basis for a prosecution as it is clearly protected by the First Amendment.

   It is true, of course, that the Salerno test for facial challenges -- the no-set-of-circumstances test -- allows a litigant to attack a law based on factual situations not immediately before the Court. The challenger is asked to prove, after all, that every conceivable application of the law will be unconstitutional. The no-set-of-circumstances test, however, differs from overbreadth in two vital respects. First, the overbreadth standard does not require proof that every application not before the court will be unconstitutional. It merely requires a...