Academic journal article Harvard Law Review

After Ayotte: The Need to Defend Abortion Rights with Renewed "Purpose"

Academic journal article Harvard Law Review

After Ayotte: The Need to Defend Abortion Rights with Renewed "Purpose"

Article excerpt

Recent Supreme Court confirmation hearings have resoundingly confirmed abortion rights' continued status as the constitutional controversy that most impassions the public. Given the degree of the courts' current entanglement in abortion policy, (1) this controversy will likely continue to play out through the judicial system. To date, courts have maintained a right to abortion in the face of legislative opposition through the use of an atypically broad remedial approach when evaluating abortion statutes. But the Supreme Court's decision this Term in Ayotte v. Planned Parenthood of Northern New England (2) suggests the courts may be rethinking their exceptional approach. Although Ayotte itself is a narrow holding, its focus on remedies highlights a need to take stock of the function that broad abortion remedies have served and the likely impact of a change in this approach.

Narrow abortion remedies impose greater institutional strains on courts. These strains notwithstanding, in some respects a move to narrower remedies is long overdue. Courts have at times struck down abortion statutes with merely a handful of potentially unconstitutional applications. Both efficiency and judicial modesty counsel in favor of reversing this trend. However, a move to narrow remedies may entice anti-abortion legislatures to draft intentionally overbroad regulations, leading to needless expenditures of judicial resources.

This possibility raises the question whether courts can construct an abortion jurisprudence that does not require the extreme bluntness of earlier abortion remedies without inviting legislative overreaching. This Note argues that returning to a doctrine dormant within the Court's abortion jurisprudence offers the best hope for achieving this balance. If courts begin offering narrowing constructions to unconstitutional abortion statutes, they should simultaneously add new teeth to the purpose prong of Planned Parenthood of Southeastern Pennsylvania v. Casey,3 entirely invalidating abortion regulations that run contrary to clearly established law.

This Note proceeds in five Parts. Part I summarizes the current state of abortion remedies, including a potential new direction suggested by Ayotte. Part II explains how the pre-Ayotte jurisprudence allowed courts to benefit from reliance on broad remedies in the abortion field and how a shift to narrower remedies will place new strains on them. Part III looks at the legislative incentives that narrower remedies could create and concludes that legislatures will likely draft increasingly broad restrictions, relying on courts to do the work of paring legislation back to the outer perimeter of the state's power to regulate abortion, thereby exacerbating the strains Part II discusses. Part IV suggests how the courts may deter this legislative overreaching. Part V concludes.

I. THE DOCTRINAL BACKGROUND

Although the history of abortion jurisprudence is widely known, most scholarly treatments have centered on rights, not remedies. This Part provides an overview of the first three decades of abortion jurisprudence through the lens of remedies and culminates with a discussion of the most recent skirmish over the issue, the Ayotte case.

A. Defining the Terms

Establishing the vocabulary that will anchor the discussion involves tiptoeing through a conceptual minefield. The relevant terms--namely facial and partial invalidations--are frequently used to describe types of challenges (though normally in that context the term "partial" is replaced with "as-applied," a term that also has spilled into the remedial context). Yet while successful facial challenges (meaning challenges predicated upon an inherent flaw in a statute, not the operation of a statute when applied to a particular set of facts) do overwhelmingly lead to facial (meaning wholesale) invalidations, the two are analytically distinct. (4) A facial challenge can lead to a partial remedy (one that rectifies the flaw while preserving some of the statute). …

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