Solicitor General's brief in Ayotte

Steven Shiffrin shs6 at
Tue Aug 9 11:40:51 PDT 2005

It strikes me that an honest argument (whatever its merits) from the SG 
would ask the Court to recognize that Casey was a contested and dubious 
decision that should be confined to its holding. To claim that Casey is 
otherwise fairly read to be confined to spousal notification 
(particularly when the undue burden standard was applied to other areas, 
but not satisfied) is inventive, but cynical.

 Trevor Morrison wrote:

> 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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