Ayotte v. Planned Parenthood of Northern New Eng.

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

AYOTTE, ATTORNEY GENERAL OF NEW
HAMPSHIRE v. PLANNED PARENTHOOD
OF NORTHERN NEW ENGLAND ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT

No. 04–1144. Argued November 30, 2005—Decided January 18, 2006
New Hampshire’s Parental Notification Prior to Abortion Act, in rele-
vant part, prohibits physicians from performing an abortion on a
pregnant minor until 48 hours after written notice of such abortion is
delivered to her parent or guardian. The Act does not require notice
for an abortion necessary to prevent the minor’s death if there is in-
sufficient time to provide notice, and permits a minor to petition a
judge to authorize her physician to perform an abortion without pa-
rental notification. The Act does not explicitly permit a physician to
perform an abortion in a medical emergency without parental notifi-
cation. Respondents, who provide abortions for pregnant minors and
expect to provide emergency abortions for them in the future, filed
suit under 42 U. S. C. §1983, claiming that the Act is unconstitu-
tional because it lacks a health exception and because of the inade-
quacy of the life exception and the judicial bypass’ confidentiality
provision. The District Court declared the Act unconstitutional and
permanently enjoined its enforcement, and the First Circuit affirmed.
Held: If enforcing a statute that regulates access to abortion would be
unconstitutional in medical emergencies, invalidating the statute en-
tirely is not always necessary or justified, for lower courts may be
able to render narrower declaratory and injunctive relief. Pp. 4–10.
(a) As the case comes to this Court, three propositions are estab-
lished. First, States have the right to require parental involvement
when a minor considers terminating her pregnancy. Second, a State
may not restrict access to abortions that are “ ‘necessary, in appropri-
ate medical judgment for preservation of the life or health of the
2 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN

NEW ENG.

Syllabus

mother.’ ” Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 879 (plurality opinion). Third, New Hampshire has not
taken issue with the case’s factual basis: In a very small percentage
of cases, pregnant minors need immediate abortions to avert serious
and often irreversible damage to their health. New Hampshire has
conceded that, under this Court’s cases, it would be unconstitutional
to apply the Act in a manner that subjects minors to significant
health risks. Pp. 4–6.
(b) Generally speaking, when confronting a statute’s constitutional
flaw, this Court tries to limit the solution to the problem, preferring
to enjoin only the statute’s unconstitutional applications while leav-
ing the others in force, see United States v. Raines, 362 U. S. 17, 20–
22, or to sever its problematic portions while leaving the remainder
intact, United States v. Booker, 543 U. S. 220, 227–229. Three inter-
related principles inform the Court’s approach to remedies. First, the
Court tries not to nullify more of a legislature’s work than is neces-
sary. Second, mindful that its constitutional mandate and institu-
tional competence are limited, the Court restrains itself from “re-
writ[ing] state law to confirm it to constitutional requirements.”
Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397.
Third, the touchstone for any decision about remedy is legislative in-
tent. After finding an application or portion of a statute unconstitu-
tional, the Court must ask: Would the legislature have preferred
what is left of its statute to no statute at all? See generally, e.g.,
Booker, supra, at 227. Here, the courts below chose the most blunt
remedy—permanently enjoining the Act’s enforcement and thereby
invalidating it entirely. They need not have done so. In Stenberg v.
Carhart, 530 U. S. 914—where this Court invalidated Nevada’s “par-
tial birth abortion” law in its entirety for lacking a health exception—
the parties did not ask for, and this Court did not contemplate, relief
more finely drawn, but here New Hampshire asked for and respon-
dents recognized the possibility of a more modest remedy. Only a few
applications of the Act would present a constitutional problem. So
long as they are faithful to legislative intent, then, in this case the
lower courts can issue a declaratory judgment and an injunction pro-
hibiting the Act’s unconstitutional application. On remand, they
should determine in the first instance whether the legislature in-
tended the statute to be susceptible to such a remedy. Pp. 6–10.
(c) Because an injunction prohibiting unconstitutional applications
or a holding that consistency with legislative intent requires invali-
dating the statue in toto should obviate any concern about the Act’s
life exception, this Court need not pass on the lower courts’ alterna-
tive holding. If the Act survives in part on remand, the Court of Ap-
peals should address respondents’ separate objection to the judicial
 Cite as: 546 U. S. ____ (2006) 3

Syllabus

bypass’ confidentiality provision. P. 10.
390 F. 3d 53, vacated and remanded.

O’CONNOR, J., delivered the opinion for a unanimous Court.
 Cite as: 546 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 04–1144
_________________

KELLY A. AYOTTE, ATTORNEY GENERAL OF NEW
HAMPSHIRE, PETITIONER v. PLANNED
PARENTHOOD OF NORTHERN NEW
ENGLAND ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[January 18, 2006]

JUSTICE O’CONNOR delivered the opinion of the Court.
We do not revisit our abortion precedents today, but
rather address a question of remedy: If enforcing a statute
that regulates access to abortion would be unconstitu-
tional in medical emergencies, what is the appropriate
judicial response? We hold that invalidating the statute
entirely is not always necessary or justified, for lower
courts may be able to render narrower declaratory and
injunctive relief.
I
A
In 2003, New Hampshire enacted the Parental Notifica-
tion Prior to Abortion Act. N. H. Rev. Stat. Ann.
§§132:24–132:28 (Supp. 2004). The Act prohibits physi-
cians from performing an abortion on a pregnant minor (or
a woman for whom a guardian or conservator has been
appointed) until 48 hours after written notice of the pend-
ing abortion is delivered to her parent or guardian.
§132:25(I). Notice may be delivered personally or by
2 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN

NEW ENG.

Opinion of the Court

certified mail. §§132:25(II), (III). Violations of the Act are
subject to criminal and civil penalties. §132:27.
The Act allows for three circumstances in which a phy-
sician may perform an abortion without notifying the
minor’s parent. First, notice is not required if “[t]he at-
tending abortion provider certifies in the pregnant minor’s
record that the abortion is necessary to prevent the mi-
nor’s death and there is insufficient time to provide the
required notice.” §132:26(I)(a). Second, a person entitled
to receive notice may certify that he or she has already
been notified. §132:26(I)(b). Finally, a minor may petition
a judge to authorize her physician to perform an abortion
without parental notification. The judge must so author-
ize if he or she finds that the minor is mature and capable
of giving informed consent, or that an abortion without
notification is in the minor’s best interests. §132:26(II).
These judicial bypass proceedings “shall be confidential
and shall be given precedence over other pending matters
so that the court may reach a decision promptly and with-
out delay,” and access to the courts “shall be afforded [to
the] pregnant minor 24 hours a day, 7 days a week.”
§§132:26(II)(b), (c). The trial and appellate courts must
each rule on bypass petitions within seven days. Ibid.
The Act does not explicitly permit a physician to per-
form an abortion in a medical emergency without parental
notification.
B
Respondents are Dr. Wayne Goldner, an obstetrician
and gynecologist who has a private practice in Manches-
ter, and three clinics that offer reproductive health ser-
vices. All provide abortions for pregnant minors, and each
anticipates having to provide emergency abortions for
minors in the future. Before the Act took effect, respon-
dents brought suit under 42 U. S. C. §1983, alleging that
the Act is unconstitutional because it fails “to allow a
 Cite as: 546 U. S. ____ (2006) 3

Opinion of the Court

physician to provide a prompt abortion to a minor whose
health would be endangered” by delays inherent in the
Act. App. 10 (Complaint, ¶24). Respondents also chal-
lenged the adequacy of the Act’s life exception and of the
judicial bypass’ confidentiality provision.
The District Court declared the Act unconstitutional,
see 28 U. S. C. §2201(a), and permanently enjoined its
enforcement. It held, first, that the Act was invalid for
failure “on its face . . . to comply with the constitutional
requirement that laws restricting a woman’s access to
abortion must provide a health exception.” Planned Par-
enthood of Northern New Eng. v. Heed, 296 F. Supp. 2d 59,
65 (NH 2003). It also found that the Act’s judicial bypass
would not operate expeditiously enough in medical emer-
gencies. In the alternative, the District Court held the
Act’s life exception unconstitutional because it requires
physicians to certify with impossible precision that an
abortion is “necessary” to avoid death, and fails to protect
their good faith medical judgment.
The Court of Appeals for the First Circuit affirmed.
Citing our decisions in Stenberg v. Carhart, 530 U. S. 914,
929–930 (2000), Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and
Roe v. Wade, 410 U. S. 113, 164–165 (1973), it observed:
“Complementing the general undue burden standard [for
reviewing abortion regulations], the Supreme Court has
also identified a specific and independent constitutional
requirement that an abortion regulation must contain an
exception for the preservation of the pregnant woman’s
health.” Planned Parenthood of Northern New Eng. v.
Heed, 390 F. 3d 53, 58 (2004). It went on to conclude that
the Act is unconstitutional because it does not contain an
explicit health exception, and its judicial bypass, along
with other provisions of state law, is no substitute. The
Court of Appeals further found the Act unconstitutional
because, in its view, the life exception forces physicians to
4 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN

NEW ENG.

Opinion of the Court

gamble with their patients’ lives by prohibiting them from
performing an abortion without notification until they are
certain that death is imminent, and is intolerably vague.
Because the district and appellate courts permanently
enjoined the Act’s enforcement on the basis of the above
infirmities, neither reached respondents’ objection to the
judicial bypass’ confidentiality provision.
We granted certiorari, 544 U. S. __ (2005), to decide
whether the courts below erred in invalidating the Act in
its entirety because it lacks an exception for the preserva-
tion of pregnant minors’ health. We now vacate and re-
mand for the Court of Appeals to reconsider its choice of
remedy.
II
As the case comes to us, three propositions—two legal
and one factual—are established. First, States unques-
tionably have the right to require parental involvement
when a minor considers terminating her pregnancy, be-
cause of their “strong and legitimate interest in the wel-
fare of [their] young citizens, whose immaturity, inexperi-
ence, and lack of judgment may sometimes impair their
ability to exercise their rights wisely.” Hodgson v. Minne-
sota, 497 U. S. 417, 444–445 (1990) (opinion of STEVENS,
J.).1 Accordingly, we have long upheld state parental
——————
1 Forty-four States, including New Hampshire, have parental in-

volvement (that is, consent or notification) laws. Thirty-eight of those
laws have explicit exceptions for health or medical emergencies. Ala.
Code §26–21–5 (1992); Alaska Stat. §18.16.060 (2004); Ariz. Rev. Stat.
Ann. §36–2152(G)(2) (West 2003); Ark. Code Ann. §§20–16–802(2), 20–
16–805(1) (Supp. 2005); Cal. Health & Safety Code Ann. §123450 (West
1996); Colo. Rev. Stat. §12–37.5–103(5) (2004); Del. Code Ann., Tit. 24,
§§1782(d), 1787 (1997); Fla. Stat. Ann. §§390.01114(2)(d), (3)(b) (West
Supp. 2006); Ga. Code Ann. §15–11–116 (2005); Idaho Code §18–
609A(1)(a)(v) (Lexis 2005); Ill. Comp. Stat., ch. 750, §70/10 (West 2004);
Ind. Code §16–34–2–4 (West 2004); Iowa Code §135L.3 (2005); Kan.
Stat. Ann. §65–6705(j)(1)(B) (2002); Ky. Rev. Stat. Ann. §§311.720,
311.732 (West Supp. 2005); La. Stat. Ann. §40:1299.35.12 (West Supp.
 Cite as: 546 U. S. ____ (2006) 5

Opinion of the Court

involvement statutes like the Act before us, and we cast no
doubt on those holdings today. See, e.g., Lambert v. Wick-
lund, 520 U. S. 292 (1997) (per curiam); Casey, supra, at
899 (joint opinion); Ohio v. Akron Center for Reproductive
Health, 497 U. S. 502, 510–519 (1990); Hodgson, 497 U. S.,
at 461 (O’CONNOR, J., concurring in part and concurring in
judgment in part); id., at 497–501 (KENNEDY, J., concur-
ring in judgment in part and dissenting in part).2
Second, New Hampshire does not dispute, and our

——————

2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws

§§722.902(b), 722.905 (2002); Miss. Code Ann. §41–41–57 (2005); Mont.

Code Ann. §§50–20–203(5), 50–20–208 (2005); Neb. Rev. Stat. §71–

6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann.

§§9:17A–1.3, 9:17A–1.6 (West 2002); N. M. Stat. Ann. §30–5–1 (2004);

N. C. Gen. Stat. Ann. §90–21.9 (Lexis 2003); N. D. Cent. Code Ann.
§§14–02.1–03(1), 14–02.1–03.1(2) (Lexis 2004); Ohio Rev. Code Ann.
§2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1–740.2(B) (West Supp.
2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23–4.7–
4 (1996); S. C. Code Ann. §44–41–30(C)(1) (2002); 2005 S. D. Laws
p. 189; Tenn. Code Ann. §37–10–305 (2005); Tex. Occ. Code Ann.
§164.052(a)(19) (West Supp. 2005), Tex. S. B. 419 (2005); Utah Code
Ann. §§76–7–301(2), 76–7–305 (Lexis Supp. 2005); Va. Code Ann.
§18.2–76 (2004); W. Va. Code §16–2F–3 (Lexis 2001); Wis. Stat. §48.375
(2003–2004). Two States give physicians sufficient discretion to per-
form an abortion to protect minors’ health. Me. Rev. Stat. Ann., Tit. 22,
§1597–A (2004); Md. Health Code Ann. §20–103 (2005). Four, includ-
ing New Hampshire, make no exception for minors’ health in an emer-
gency. N. H. Stat. §132:26 (2005); Minn. Stat. §144.343 (2004); Mo.
Rev. Stat. §188.028 (2000); Wyo. Stat. Ann. §35–6–118 (2003).
2It is the sad reality, however, that young women sometimes lack a

loving and supportive parent capable of aiding them “to exercise their
rights wisely.” Hodgson, 497 U. S., at 444; see id., at 450–451 and n. 36
(holding unconstitutional a statute requiring notification of both
parents, and observing that “the most common reason” young women
did not notify a second parent was that the second parent “was a child-
or spouse-batterer, and notification would have provoked further
abuse” (citation omitted)). See also Department of Health and Human
Services, Administration on Children, Youth and Families, Child
Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in
79.7% of cases of reported abuse or neglect).
6 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN

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Opinion of the Court

precedents hold, that a State may not restrict access to
abortions that are “ ‘necessary, in appropriate medical
judgment, for preservation of the life or health of the
mother.’ ” Casey, 505 U. S., at 879 (plurality opinion) (quot-
ing Roe, 410 U. S., at 164–165); see also Thornburgh v.
American College of Obstetricians and Gynecologists, 476
U. S. 747, 768–769 (1986); Planned Parenthood Assn. of
Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482–486
(1983) (opinion of Powell, J.); Planned Parenthood of Cen-
tral Mo. v. Danforth, 428 U. S. 52, 79 (1976).
Third, New Hampshire has not taken real issue with the
factual basis of this litigation: In some very small percent-
age of cases, pregnant minors, like adult women, need
immediate abortions to avert serious and often irreversible
damage to their health. See 296 F. Supp. 2d, at 65, n. 4.
New Hampshire has maintained that in most if not all
cases, the Act’s judicial bypass and the State’s “competing
harms” statutes should protect both physician and patient
when a minor needs an immediate abortion. See N. H.
Rev. Stat. Ann. §627:3(I) (1996) (for criminal liability,
“[c]onduct which the actor believes to be necessary to
avoid harm to . . . another is justifiable if the desirability
and urgency of avoiding such harm outweigh, according to
ordinary standards of reasonableness, the harm sought to
be prevented by the statute defining the offense charged”);
§627:1 (similar for civil liability). But the District Court
and Court of Appeals found neither of these provisions to
protect minors’ health reliably in all emergencies. 296
F. Supp. 2d, at 65–66; 390 F. 3d, at 61–62. And New
Hampshire has conceded that, under our cases, it would be
unconstitutional to apply the Act in a manner that sub-
jects minors to significant health risks. See Reply Brief
for Petitioner 2, 8, 11; Tr. of Oral Arg. 6, 14.
III
We turn to the question of remedy: When a statute
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Opinion of the Court

restricting access to abortion may be applied in a manner
that harms women’s health, what is the appropriate relief?
Generally speaking, when confronting a constitutional
flaw in a statute, we try to limit the solution to the prob-
lem. We prefer, for example, to enjoin only the unconsti-
tutional applications of a statute while leaving other
applications in force, see United States v. Raines, 362 U. S.
17, 20–22 (1960), or to sever its problematic portions while
leaving the remainder intact, United States v. Booker, 543
U. S. 220, 227–229 (2005).
Three interrelated principles inform our approach to
remedies. First, we try not to nullify more of a legisla-
ture’s work than is necessary, for we know that “[a] ruling
of unconstitutionality frustrates the intent of the elected
representatives of the people.” Regan v. Time, Inc., 468
U. S. 641, 652 (1984) (plurality opinion). It is axiomatic
that a “statute may be invalid as applied to one state of
facts and yet valid as applied to another.” Dahnke-Walker
Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921).
Accordingly, the “normal rule” is that “partial, rather than
facial, invalidation is the required course,” such that a
“statute may . . . be declared invalid to the extent that it
reaches too far, but otherwise left intact.” Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also
Tennessee v. Garner, 471 U. S. 1 (1985); United States v.
Grace, 461 U. S. 171, 180–183 (1983).
Second, mindful that our constitutional mandate and
institutional competence are limited, we restrain ourselves
from “rewrit[ing] state law to conform it to constitutional
requirements” even as we strive to salvage it. Virginia v.
American Booksellers Assn., Inc., 484 U. S. 383, 397
(1988). Our ability to devise a judicial remedy that does
not entail quintessentially legislative work often depends
on how clearly we have already articulated the back-
ground constitutional rules at issue and how easily we can
articulate the remedy. In United States v. Grace, supra, at
8 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN

NEW ENG.

Opinion of the Court

180–183, for example, we crafted a narrow remedy much
like the one we contemplate today, striking down a statute
banning expressive displays only as it applied to public
sidewalks near the Supreme Court but not as it applied to
the Supreme Court Building itself. We later explained
that the remedy in Grace was a “relatively simple matter”
because we had previously distinguished between side-
walks and buildings in our First Amendment jurispru-
dence. United States v. Treasury Employees, 513 U. S.
454, 479, n. 26 (1995). But making distinctions in a
murky constitutional context, or where line-drawing is
inherently complex, may call for a “far more serious inva-
sion of the legislative domain” than we ought to under-
take. Ibid.
Third, the touchstone for any decision about remedy is
legislative intent, for a court cannot “use its remedial
powers to circumvent the intent of the legislature.” Cali-
fano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., con-
curring in part and dissenting in part); see also Dorchy v.
Kansas, 264 U. S. 286, 289–290 (1924) (opinion for the
Court by Brandeis, J.). After finding an application or
portion of a statute unconstitutional, we must next ask:
Would the legislature have preferred what is left of its
statute to no statute at all? See generally Booker, supra,
at 227; Minnesota v. Mille Lacs Band of Chippewa Indi-
ans, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v.
Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v.
Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932);
The Employers’ Liability Cases, 207 U. S. 463, 501 (1908);
Allen v. Louisiana, 103 U. S. 80, 83–84 (1881); Trade-
Mark Cases, 100 U. S. 82, 97–98 (1879). All the while, we
are wary of legislatures who would rely on our interven-
tion, for “[i]t would certainly be dangerous if the legisla-
ture could set a net large enough to catch all possible
offenders, and leave it to the courts to step inside” to
announce to whom the statute may be applied. United
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Opinion of the Court

States v. Reese, 92 U. S. 214, 221 (1876). “This would, to
some extent, substitute the judicial for the legislative
department of the government.” Ibid.
In this case, the courts below chose the most blunt
remedy—permanently enjoining the enforcement of New
Hampshire’s parental notification law and thereby invali-
dating it entirely. That is understandable, for we, too,
have previously invalidated an abortion statute in its
entirety because of the same constitutional flaw. In Sten-
berg, we addressed a Nebraska law banning so-called
“partial birth abortion” unless the procedure was neces-
sary to save the pregnant woman’s life. We held Ne-
braska’s law unconstitutional because it lacked a health
exception. 530 U. S., at 930 (lack of a health exception
was an “independent reaso[n]” for finding the ban uncon-
stitutional). But the parties in Stenberg did not ask for,
and we did not contemplate, relief more finely drawn.
In the case that is before us, however, we agree with
New Hampshire that the lower courts need not have in-
validated the law wholesale. Respondents, too, recognize
the possibility of a modest remedy: They pleaded for any
relief “just and proper,” App. 13 (Complaint), and conceded
at oral argument that carefully crafted injunctive relief
may resolve this case, Tr. of Oral Arg. 38, 40. Only a few
applications of New Hampshire’s parental notification
statute would present a constitutional problem. So long as
they are faithful to legislative intent, then, in this case
the lower courts can issue a declaratory judgment and
an injunction prohibiting the statute’s unconstitutional
application.
There is some dispute as to whether New Hampshire’s
legislature intended the statute to be susceptible to such a
remedy. New Hampshire notes that the Act contains a
severability clause providing that “[i]f any provision of this
subdivision or the application thereof to any person or
circumstance is held invalid, such invalidity shall not
10 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN
NEW ENG.
Opinion of the Court

affect the provisions or applications of this subdivision
which can be given effect without the invalid provisions or
applications.” §132:28. Respondents, on the other hand,
contend that New Hampshire legislators preferred no
statute at all to a statute enjoined in the way we have
described. Because this is an open question, we remand
for the lower courts to determine legislative intent in the
first instance.
IV
Either an injunction prohibiting unconstitutional appli-
cations or a holding that consistency with legislative
intent requires invalidating the statute in toto should
obviate any concern about the Act’s life exception. We
therefore need not pass on the lower courts’ alternative
holding. Finally, if the Act does survive in part on re-
mand, the Court of Appeals should address respondents’
separate objection to the judicial bypass’ confidentiality
provision. The judgment of the Court of Appeals is va-
cated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.