Opinion · Supreme Court of the United States
Janklow v. Planned Parenthood
Janklow v. Planned Parenthood, 517 U.S. 1174 (1996)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1996-04-29
- Topic
- finance
holding that, under Casey, an abortion statute is unconstitutional on its face if it imposes a substantial obstacle in a large fraction of relevant cases | holding contra Barnes and Justice Stevens's concurrence to the denial of certiorari in Janklow v. Planned Parenthood, Sioux Falls Clinic, --- U.S. ----, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996 | holding contra Barnes and Justice Stevens's concurrence to the denial of certiorari in Janklow v. Planned Parenthood, Sioux Falls Clinic, - U.S. -, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996 | discussing the division among the Court in Casey and noting that the undue burden standard appears to be the "lowest common denominator" | discussing the division among the Court in Casey and noting that the undue burden standard appears to be the “lowest common denominator” | Scalia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting from denial of certiorari | Justice Stevens and Justice Scalia disagreeing'on the appropriate standard for a facial challenge in dueling memorandum opinions that respect and dissent, respectively, from the denial of the petition for certiora-ri | Scalia, J., joined by Rehnquist, C.J. & Thomas, J., dissenting from denial of certiorari | Scalia, J., joined by Rehnquist, C.J. & Thomas, J., dissenting from denial of certiorari | Scalia, J., joined by Rehnquist, C.J. & Thomas, J., dissenting from denial of certiorari | Scalia, J., joined by Rehnquist, C.J., Thomas, J., dissenting from denial of certiorari | “[A] facial challenge may be more difficult to mount than an as-applied challenge.” | Sealia, J., joined by Rehnquist, C.J., and Thomas, J., dissenting from denial of certiorari | Memorandum opinion by Stevens, J. denying cert. | Memorandum respecting the denial of certiorari
Citator
- Authority status
- pending
- Cited by
- 104 opinions
C. A. 8th Cir. Motion of National Right to Life Committee, Inc., for leave to file a brief as amicus curiae granted. Certiorari denied.
The Court’s opinion in United States v. Salerno, 481 U. S. 789 (1987), correctly summarized a long established principle of our jurisprudence: “The fact that [a legislative] Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” Id., at 745.
Unfortunately, the preceding sentence in the Salerno opinion went well beyond that principle. That sentence opens Part II of the opinion with a rhetorical flourish, stating that a facial challenge must fail unless there is “no set of circumstances” in which the statute could be validly applied. Ibid.; post, at 1178. That statement was unsupported by citation or precedent. It was also unnecessary to the holding in the case, for the Court effectively held that the statute at issue would be constitutional as applied in a large fraction of cases. See 481 U. S., at 749-750.
While a facial challenge may be more difficult to mount than an as-applied challenge, the dicta in Salerno “does not accurately characterize the standard for deciding facial challenges,” and “neither accurately reflects the Court’s practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.” Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 236, 238 (1994). For these reasons, Salerno’s rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context.1 Accordingly, there is
See, e. g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (statute facially invalid as “substantial obstacle” to exercise of right in “large fraction” of cases); id., at 972-973 (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (arguing that “no circumstance” dictum should have led to different result); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U. S. 71, 82 (1992) (Rehnquist, C. J., dissenting) (arguing that tax statute was facially valid because it would be constitutional under certain facts); INS v. National Center for Immigrants’ Rights, Inc., 502 U. S. 183, 188 (1991) (applying appropriate rule: “That the regulation may be invalid as applied in [some] cases, . . . does not mean that the regulation is facially invalid”); Bowen v. Kendrick, 487 U. S. 589, 602 (1988) (statute facially invalid under Establishment Clause only if, inter alia, law’s “primary effect” is advancement of religion, or if it requires “excessive entanglement” between church and state); id., at 627, n. 1 (Blackmun, J., dissenting) (pointing out and agreeing with majority’s failure to apply “no circumstance” dictum); Shaffer v. Heitner, 433 U. S. 186 (1977)
These cases, along with other decisions and the holding in Salerno itself (that the- challenged Act was constitutional in most circumstances, not merely one), should have braced the dissent against the minor risk of whiplash from the “head-snapping” observation, post, at 1180, that our “doctrinal pattern is somewhat more complex” than Salerno’s “no circumstance” language suggests, Fallon, Making Sense of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991) (citing cases).
In all likelihood, the decision of the Fifth Circuit applying the “no circumstance” test would have been decided the same way even if that court had utilized the “large fraction” test applied by the Eighth Circuit in this case. See Barnes v. Moore, 970 F. 2d 12, 14 (CA5 1992) (noting that the provisions at issue were “substantially identical” to provisions upheld in Casey).
Furthermore, it is not at all clear to me, given intervening statements by Members of this Court, see Fargo Women’s Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993), that subsequent Fifth Circuit panels would follow Barnes’ application of the “no circumstance” test, providing yet another reason to deny the petition in this case.