Analysis Law and Policy

How to Save an Unconstitutional Abortion Ban, As Dictated by the Supreme Court

Jessica Mason Pieklo

The legal battle over Arizona's 20 week ban is a preview of the coming wave of legal arguments in defense of pre-viability and other unconstituitonal abortion restrictions.

There are a number of things to be troubled about in U.S. District Court Judge James Teilborg’s decision to uphold HB 2036, an Arizona law that makes it a felony to have an abortion after 20 weeks gestation. But one of the most dangerous signals in the opinion is the federal court’s willing acceptance of the idea that an otherwise unconstitutional abortion ban may be salvaged so long as that ban only affects just a few women. It’s a legal principle that first emerged in the abortion-rights context in 2006 and one that judges hostile to abortion rights are using to uphold radical restrictions on women’s rights.

Teilborg’s justification for upholding the Arizona law is grounded in a 2006 Supreme Court decision, Ayotte v. Planned Parenthood. That case dates back to 2003, when New Hampshire enacted the Parental Notification Prior to Abortion Act. The law prohibited physicians from performing an abortion upon a pregnant minor until forty-eight hours after written notice of the pending abortion was delivered to her parent or guardian and permitted a physician to perform an abortion without notifying the minor’s parent or guardian only if the procedure was necessary to prevent the minor’s death and there was insufficient time to provide the required notice; if a person entitled to notice certified that he or she had already been notified; or if notice had been waived in a judicial bypass hearing requested by the minor.

The Act was immediately challenged by a physician who performed abortions and three abortion clinics. The plaintiffs claimed that the law was unconstitutional because it contained no health exception, because the exception to prevent the minor’s death was too narrow and because it failed adequately to protect the confidentiality of the judicial bypass proceedings. The federal district court agreed, declared the Act unconstitutional and enjoined its enforcement. Anti-choice advocates appealed until the Supreme Court eventually took the case which vacated unanimously the appellate and district court opinions.

While Ayotte was largely about parental notification and consent, the real landmine in the decision is how the court justified overturning the lower courts findings that the New Hampshire law was clearly unconstitutional and in doing so set the stage for the current crop of aggressively unconstitutional abortion restrictions at the state level.

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In some ways the real damage from Ayotte can be considered “procedural.” There are two ways to challenge a law on constitutional grounds, through a “facial challenge” and an “as applied” challenge. A “facial challenge” seeks to strike down an entire law where an “as applied” challenge seeks to prevent the application of the law in particular, defined circumstances. Generally, the court has permitted facial challenges in areas like free speech rights because laws in those categories attempt to regulate fundamental rights, values held so dear in our constitutional jurisprudence that only the most narrowly-tailored restrictions are permissible.

However, federal jurisprudence has another parallel and competing doctrine, the so-called Salerno rule, which holds that a law can only be subject to a facial challenge if “no set of circumstances exist under which the act would be valid.” In the Ayotte decision the Supreme Court adopted the Salerno rule, with devastating consequences.

Justice O’Connor writing for the unanimous court, noted that the lower courts had chosen “the most blunt remedy” possible, “permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely.” (Ayotte, 546 U.S. at 330.) That was unnecessary because, as the Attorney General argued and as the plaintiffs conceded, “[o]nly a few applications” of the law “would present a constitutional problem.”  (Id. at 331.)

Flash forward not even a decade and the district court in Arizona adopts this reasoning to uphold a pre-viability ban that is in direct conflict with the precedent established in Roe v. Wade and in a case specifically crafted to challenge that precedent. The implications are clear. All potential abortion restrictions can pass muster under the Ayotte rule, so long as the number of women or practitioners they impact remains small.

Of course, those women most affected are those women most in crisis who already face significant hurdles accessing reproductive health care: poor women, women of color and women who live in remote parts of this country. For these women, their only hope of legal relief comes from lengthy, expensive, and fact-intensive litigation, a truth anti-choice advocates are counting on in their crusade to eliminate abortion rights across the country.

The Ninth Circuit Court of Appeals may have blocked the Arizona 20-week ban for now, but as we’ve seen with mandatory ultrasounds, mandated disclosure of false information on suicide-abortion links, and so-called partial birth abortion bans, the federal judiciary will uphold an abortion restriction whenever it can. And thanks to Ayotte and the abortion case law coming out of the Roberts Court, that could very well mean every abortion restriction can now be found to be constitutional.

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