II. Federal Jurisdiction and Procedure: A. Equitable Remedies

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Abortion Rights--Remedy for Unconstitutionality.--Since deciding Roe v. Wade, (1) the Supreme Court has sent mixed signals regarding the proper standard to apply in addressing facial challenges to abortion regulations. In several cases, the Court applied the standard set forth in United States v. Salerno, (2) which requires a plaintiff challenging the facial validity of a statute to "establish that no set of circumstances exists under which the [statute] would be valid." (3) In more recent cases, the Court has applied the standard set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, (4) under which a statute is invalid if, "in a large fraction of the cases in which [that statute] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." (5) These mixed signals, in the words of Judge Easterbrook, have "put courts of appeals in a pickle" because they "cannot follow Salerno without departing from the approach taken in ... Casey; yet [they] cannot disregard Salerno without departing from the principle that only an express overruling relieves an inferior court of the duty to follow decisions on the books." (6) Unsurprisingly, a circuit split concerning the appropriate standard has developed. (7)

Last Term, in Ayotte v. Planned Parenthood of Northern New England, (8) the Court had an opportunity to resolve this split and clarify the quantum of proof necessary to bring a facial challenge to an abortion regulation. (9) The Court, however, chose not to address that issue. Instead, the Court addressed only the question of remedy and held that facially invalidating an abortion regulation with at least one undisputed unconstitutional application "is not always necessary or justified." (10) Although this decision leaves open the important quantum-of-proof question--a "question that virtually cries out for [the Court's] review" (11)--it also suggests a promising new remedial emphasis in the Court's abortion jurisprudence. This new focus, which recognizes the federal judiciary's limited constitutional mandate and instructs the lower courts that facial invalidation is an exception rather than the norm, rightly takes the Court's abortion jurisprudence one step closer to ensuring that the federal judiciary respects the properly limited role of the courts in a democratic society. The separation-of-powers principles underlying Ayotte also indicate the importance--and perhaps the likelihood--of having federal courts apply the Salerno standard to facial challenges of abortion regulations. By once again invoking and applying Salerno in the abortion context, the Court can take another necessary step toward restoring, to the tripartite allocation of power, "the more modest role Article III envisions for federal courts." (12)

In 2003, the New Hampshire legislature enacted the Parental Notification Prior to Abortion Act. (13) The statute prohibits performing an abortion on an unemancipated minor until forty-eight hours after written notice is delivered to the minor's parent or guardian. (14) Although the statute contains a judicial bypass provision and an exception for the minor's life, it does not contain an exception for the minor's health. (15)

Before the statute took effect, three abortion clinic operators and a doctor who performs abortions filed a complaint in the United States District Court for the District of New Hampshire. (16) Arguing that the statute was unconstitutional because it lacked a health exception, contained an inadequate life exception, and had an insufficient confidentiality provision, the plaintiffs sought an injunction and a declaration that the Act was unconstitutional on its face. (17) After identifying the circuit split regarding the appropriate standard for evaluating facial challenges to state abortion laws, the court concluded that "the Casey ... standard applies in the context of abortion legislation." (18) Applying that standard, the court held the Act invalid on its face because it did not "comply with the constitutional requirement that laws restricting a woman's access to abortion must provide a health exception. …