Solicitor General's brief in Ayotte

[Trevor Morrison]

The Solicitor General has filed his brief in Ayotte v. Planned 
Parenthood, the abortion case scheduled for the Court's upcoming 
Term.  (SCOTUSblog has a link to the brief.)  As members of this list 
know, one of the two issues in the case concerns the proper standard 
for assessing facial challenges to abortion-related laws -- is it 
Salerno's "no set of circumstances" test, or does the Casey "undue 
burden" standard displace Salerno in this area?  The Solicitor 
General says Salerno applies in Ayotte.  He does so by reading Casey 
very narrowly.  On page 17 of his brief, he says:  "The joint opinion 
in Casey did not purport to alter the standard for facial challenges 
to all statutes regulating abortion.  At most, the joint opinion 
applied a distinct standard for facial challenges to 
spousal-notification provisions. . . .  Accordingly, outside the 
context of spousal-notification provisions, Casey left the law of 
facial challenges unaffected, and thus the default standard of 
Salerno applies [in this case, which involves a facial challenge to a 
parental-notification provision]."

Here's my question:  Before Ayotte arose, did anyone on this list 
think Casey's "undue burden" test applied only to 
spousal-notification provisions and nothing else?  Obviously, Casey 
itself invalidated only a spousal--notification provision, but did 
anyone think the "undue burden" approach was meant to apply only to 
those kinds of provisions?  Did anyone teach Casey that way?

I ask these questions seriously.  If this has been a common reading 
of Casey, I'd like to know.


Trevor Morrison

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