Chief Justice Roberts to Hear First Abortion Related Case

Liberty Counsel's amicus brief, filed at the Supreme Court in support of the New Hampshire law, focuses on the broader impact of the Ayotte case. Beyond parental notification, the broader legal issue involves an "as applied" versus a "facial" challenge to legislation. An "as applied" challenge contests the application of a law to a specific situation, and if found unconstitutional, it is unconstitutional in that specific application. If the law can be constitutionally applied to another set of facts, it remains constitutional to that set of facts. A "facial" challenge is an exception to normal litigation and can usually only occur in a limited free speech context. Even in that context, the plaintiff bears the burden of proving that the law is unconstitutional in every conceivable application. This is a heavy burden to prove.

Many legal challenges to abortion legislation have been preemptive, that is, facial challenges filed before the law has been applied or enforced. In 2000, the Supreme Court by a 5-4 decision in Carhart v. Stenberg struck down a law that banned partial birth abortion, and in 1992 the Court reaffirmed and strengthened Roe v. Wade by inventing the "undue burden" test in Planned Parenthood v. Casey. Both Casey and Carhart were facial challenges. Following the lead of the Supreme Court, lower federal courts have not only allowed pre-enforcement challenges to abortion laws, but have also struck down abortion laws based on one, albeit remote, hypothetical application of the law that places an "undue burden" on a woman's access to abortion. Although the law may be constitutionally applied in a myriad of ways, one remote hypothetical application has been enough to doom the entire law.

If the High Court rules that abortion litigation must follow normal rules of jurisprudence and may challenge laws only as they are applied, the majority of abortion litigation will cease and the courts will uphold many more laws that regulate abortion.

Mathew D. Staver, President and General Counsel of Liberty Counsel, commented: "The Supreme Court has created exceptions to general rules of law when it comes to abortion. The Ayotte case pending before the High Court is enormously significant. If the Court reaches the central issue in the case, the ruling could either open the floodgates or slam the door shut on abortion litigation. It's time for the Supreme Court to stop putting abortion on a pedestal and start correctly applying the Constitution."

Source: Liberty Counsel Press Release