The Salerno standard: A menace to abortion rights

Never heard of the Salerno standard? It just might be at the center of the most important abortion-related court struggle this decade.

The Supreme Court will definitely be hearing a parental notification law abortion case from New Hampshire, and there’s a partial-birth case from Virginia that some folks are speculating the Court might hear as well. But as All Deliberate Speed, Fantasy Life and SCOTUSblog point out, it’s possible that’s what’s really at stake here isn’t parental notification or partial-birth abortion laws as such. It may be more important to look at the relatively obscure – but crucial – issue of if “facial challenges” can be legally made against the Constitutionality of abortion laws.

From SCOTUSblog:

Here is a key passage from [the Supreme Court’s United States vs. Salerno decision]: “A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid…”

But, in the abortion context, state laws have been rendered “wholly invalid” by facial challenges not applying the Salerno standard. Instead, they have applied what is known as the “undue burden” test.

The undue burden standard, first recognized by a Court majority in the celebrated 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, provides that an abortion law will be struck down if it imposes an undue burden on the right to abortion of a significant number of women ““ even if it is possible to cite some situations in which the statute could be validly applied.

In the worse case scenario, the Court could conceivably decide to apply the Salerno standard to abortion laws. What would happen then? Well, in the Virginia case, “Virginia argued that the plaintiff should not be permitted to challenge the statute on its face. That is, Virginia argued that the statute could not be challenged until a woman came along with a health need for this kind of abortion.” (Quote from Lawyers, Guns and Money.) In other words, if the “undue burden standard” is replaced by the Salerno standard, there’d be no way to ask a court to examine if an anti-abortion law is unconstitutional until after a woman who wants an abortion has been denied it.

And even if one lawsuit is successful in overturning the law “as applied” to the particular person who sued, the law could still apply to other women in other circumstances – meaning all those women would have to sue individually if they think the law is unconstitutionally being applied to them. The net effect could be to make it much harder for pro-choice activists to get Courts to consider whether or not new abortion-related laws are Constitutional.

If pro-life activists can succeed in getting the Supreme Court to apply the Salerno standard to abortion cases, that would be a huge victory for them – a much more significant victory than either parental notification or a partial birth abortion ban. The good news is, I doubt they will succeed, so long as the case is heard before O’Connor leaves the Court; O’Connor might not be eager to see the “undue burden” standard, which is pretty much her invention, trashed.

(Link to SCOTUSblog via Lauren at Feministe).