Publications
Ayotte v. Planned Parenthood of Northern New England (04-1144), Will v. Hallock (04-1332) and Rice v. Collins (No. 04-52)
Greetings, Court Fans!
After Tuesday’s decision in Gonzalez v. Oregon, where the Court managed to turn a controversial case on physician-assisted suicide into a lengthy treatise on agency deference, it is perhaps not surprising that yesterday the Court managed to issue a unanimous opinion in the parental notification abortion case, Ayotte v. Planned Parenthood of Northern New England (04-1144), that begins: “We do not revisit our abortion precedents today, but rather address a question of remedy. . . .” So, sit back, enjoy the procedure, and don’t expect that the outcome will be too sexy (both pro-life and pro-choice proponents are proclaiming the case a victory, largely because it does not substantively alter the status quo).
In 2003, New Hampshire joined numerous other states (44 in total) requiring either parental consent or notification before a minor can obtain an abortion. The New Hampshire law prohibits health providers from performing an abortion on a minor until 48 hours after written notice has been provided to the minor’s parent or guardian. There are three exceptions: (1) the provider certifies that the abortion is necessary to prevent the patient’s death; (2) the parent/guardian certifies that he or she already has been notified; or (3) the minor petitions a court to authorize the abortion without parental notification (the court must grant the petition if it finds that the minor is mature and capable of giving informed consent). There is no exception for medical emergency. Physicians challenged the law, arguing that it was unconstitutional because it did not include an exception for situations where the health of the minor was endangered, that the judicial bypass mechanism was not speedy enough for medical emergencies, and, alternatively, that the “life” exception was inadequate because it required physicians to make nearly impossible judgments about whether an abortion is necessary to prevent death and thus fails to protect good faith medical judgment. The district court invalidated the entire law and the First Circuit affirmed. Yesterday, the Court vacated and remanded for the First Circuit to reconsider its choice of remedy.
Justice O’Connor, writing for a unified Court (in what may be her last opinion), did in fact “revisit” the Court’s prior abortion jurisprudence. She explained that two issues are now considered settled law. First, states may require parental notice or consent before a minor obtains an abortion. Second, states may not restrict access to an abortion that is “necessary, in appropriate medical judgment, for preservation of the life or health of the mother.” The question for the Court was what should be done when a parental notification statute does not contain a health exception – should it be invalidated altogether (as the lower courts did here) or should the courts enjoin only unconstitutional applications of the statute (as New Hampshire asked the Court to do here) or sever the problematic portion(s) of the statute. While a court normally should avoid invalidating the statute as a whole if possible, a court should look to legislative intent as a guide and ask whether the legislature would prefer to have what is left of the statute after the unconstitutional aspect is removed, or no statute at all. The Court remanded to allow the lower courts to take the first stab at answering this question (though the decision would appear to put a brick on the scale favoring an approach of only partial invalidation).
Next, in Will v. Hallock (04-1332), the Court held that a district court’s refusal to apply the “judgment bar” of the Federal Tort Claims Act is not subject to appeal under the “collateral order” doctrine – that is, it is not “sufficiently important and collateral to the merits” that it should be open to appeal just like a final order disposing of the case. Many of you now justifiably may skip to the next summary, but appellate jurisdiction junkies can read on with relish. Hallock operated a software business from her house, but U.S. Customs seized all her computer equipment after her husband’s credit information was stolen and used to buy online child pornography. The government dropped the investigation, but returned the equipment having destroyed all of Hallock’s trade secrets and account files, forcing her out of business. Hallock sued the government for negligence under the Federal Tort Claims Act and brought a separate action against individual Customs agents for violating her due process rights. The first court dismissed the Tort Claims case because it fell under a statutory exception preserving sovereign immunity from suit. The agents then moved for judgment in their case, citing the “judgment bar” providing that an unsuccessful Tort Claims Act plaintiff cannot bring any other action against government employees arising out of the same matter. The district court denied the motion, holding that the first court’s ruling was only procedural and thus did not trigger the judgment bar. The agents appealed under the collateral order doctrine; the Second Circuit found that it had jurisdiction to hear the appeal, but then affirmed.
The Court granted the agents’ petition for cert on the judgment bar question, but it directed the parties also to brief the jurisdictional issue. In today’s opinion by Justice Souter, the Court ruled that the Second Circuit did not have jurisdiction to hear the appeal and vacated that court’s ruling (leaving intact the district court’s ruling in Hallock’s favor). The Court noted that the collateral order doctrine is narrow, allowing appeals only from interlocutory orders that are (1) conclusive rulings (2) on important questions completely separate from the merits of the case (3) that effectively would be unreviewable on appeal after the case is over. The Court has called this a “small class” of orders, and “we have meant what we said,” for fear of swallowing the general rule that a party gets a single appeal after a final judgment and allowing interlocutory appeals willy-nilly. While the Court in the past has allowed appeals from orders denying claims of immunity from suit, it has done so only when a “substantial public interest” is at stake, such as a presidential claim of absolute immunity (the Nixon case) or qualified immunity claims that need to be resolved quickly to preserve the “reasonable initiative” of government officials. There is no such interest at stake with the Tort Claims Act judgment bar – if Hallock had only sued the agents, they obviously could not have invoked the bar in the first place – and so the bar serves only to avoid litigation for its own sake, much like a standard claim preclusion argument. So the Second Circuit simply should have dismissed the government’s appeal, and never reached the issue of whether a procedural ruling can trigger the judgment bar.
Finally, in Rice v. Collins (No. 04-52), the Court reversed the Ninth Circuit’s grant of habeas relief predicated on a Batson violation. Justice Kennedy wrote for the unanimous Court, holding that while the state prosecutor’s reasons for using a peremptory challenge on a young, black, juror (her youth and lack of community involvement, alleged eye-rolling in response to a question from the court, and her gender – a factor the state court refused to consider as impermissible) were open to question, the state court did not unreasonably determine that the strike was not motivated by race and the Ninth Circuit acted improperly by substituting its factual determination for that of the state court. Justice Breyer, joined by Souter, concurred separately to say that, in their view, the Batson framework no longer works and the peremptory system should be abolished. Because peremptories may be exercised based on instinct (which may be colored by impermissible factors, such as race, of which even the prosecutor may be unaware), it will be difficult to unearth the true reason a prosecutor makes a given challenge – and this will only be compounded by deference to state court decisions. In the end, it is obvious that a defendant will be unlikely to prevail on a Batson challenge under the current system. If forced to choose, Breyer and Souter would opt for no peremptories to ensure that criminal defendants have a jury chosen in conformity with the Fourteenth Amendment.
That’s likely all for this week. Until the next, thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400.
