Washington, D.C. – Today Liberty Counsel filed an amicus brief in the United States Supreme Court abortion case known as Ayotte v. Planned Parenthood of Northern New England. This case could make it much more difficult to challenge pro-life parental involvement laws or other laws that seek to restrict or regulate abortion. The case arose out of a New Hampshire law that requires that the parents receive notice of their minor child’s request to have an abortion. The parental involvement statute seeks to protect immature children from the consequences of abortion by ensuring that the parents are notified.

The legal significance of the case involves an “as applied” versus a “facial” challenge to government legislation. An “as applied” challenge contests the application of a law to a specific situation, and if found unconstitutional, it is unconstitutional in that specific application. If the law can be constitutionally applied to another set of facts, it remains constitutional to those set of facts. A “facial” challenge can be mounted only in rare circumstances where a law has not necessarily been applied to any set of facts. To find a law “facially” unconstitutional, the plaintiff bringing the case bears the burden of proving that the law is unconstitutional in every conceivable application. This is a heavy burden to prove.

In the partial birth abortion case decided by the Supreme Court in 2000, the 5-4 decision in Carhart v. Nebraska allowed the partial birth abortion statute to be “facially” challenged before it was ever applied. Some courts have made an exception to general rule of disfavoring “facial” challenges when it comes to abortion laws. Thus most abortion laws are challenged before they ever go into effect. Courts have struck down abortion laws based on one hypothetical unconstitutional application. Facial challenges have made statutes regulating abortion vulnerable and have allowed preemptory suits based on hypothetical and unproven circumstances. Liberty Counsel’s brief argues that the Court ought to bring abortion litigation within the mainstream of constitutional jurisprudence and therefore not allow facial challenges unless the law can be proven unconstitutional in every conceivable circumstance. Thus, like most constitutional challenges, even if there is one unconstitutional application of the law, the statute will survive if the law can be constitutionally applied in other circumstances. If the Court rules that “facial” challenges to an abortion law must prove that the statute is unconstitutional in every conceivable application, the result will be that most challenges to abortion laws will fail.

Mathew D. Staver, President and General Counsel of Liberty Counsel, commented: “The Supreme Court has created exceptions to general rules of law when it comes to abortion. The mangled mess is often referred to as the ‘abortion distortion.’ It is time the Supreme Court articulates a clear rule of law, one that is guided by principal and supported by the Constitution. We have always presumed that parents act in the best interest of their children. If parental consent is required before a doctor can treat a child for a minor cold, then certainly parental involvement is necessary when their minor daughter considers abortion.”