In comments to my Ayotte liveblogging below, Aspazia asks for further clarification about Roberts’ argument that doctors could challenge unconstitutional applications of the New Hampshire statute before a medical emergency, but not as a facial challenge. The reason for her confusion couldn’t be simpler: Roberts’ position doesn’t make the slightest lick of sense. Dahlia Lithwick explains the issue well:
Justice Ruth Bader Ginsburg adds that for a doctor whose license is on the line, the prospect of a possible “defense” is pretty cold comfort. The doctor doesn’t want an opinion from the attorney general. He needs to know in advance that he’s not violating the law. Justice Antonin Scalia needs to change the subject fast and he does, advising Ayotte to make her other argumentÂthe one about why courts shouldn’t find entire statutes invalid based on a few unconstitutional applications. This leads Roberts to ask, for the first of many times this morning, whether Ayotte would accept a “pre-enforcement as-applied challenge” to the statute, brought by doctors facing prosecution.
I am sure that “pre-enforcement as-applied challenge” means something. Perhaps that the doctors facing potential prosecution could come forward to challenge the statute as applied to all of them before the cops actually knock on their doors. What I can’t quite figure out is how Roberts’ characterization truly differs from the position of the plaintiffs here. Ginsburg makes this point better than I can (she is talking to Ayotte because she can’t just ask Roberts, at least not until they get behind closed doors): “You characterize this as an ‘as applied’ challenge. But how is it ‘as applied’ if the doctor doesn’t have to wait for an emergency?” Justice John Paul Stevens adds, “Do you have to wait until the doctor has an actual patient in his office?” The nice thing about finding a whole statute unconstitutional up front, as the district court and the 1st Circuit Court of Appeals did in this case, is that doctors needn’t wait for some woman to be bleeding on a gurney before finding out what they are and aren’t allowed to do.
Ginsburg and Stevens are, of course, right. If a doctor doesn’t have to wait for an emergency to bring a lawsuit–and you can understand why Roberts doesn’t want to publicly embrace this position, although that would be the logical conclusion of following the Salerno rule–then this case is as good as any. There’s no logical reason why a subsequent lawsuit would be “as applied” if it happens before the statute is actually applied against a doctor who performs an abortion without parental consent; the only difference would be the name of the party bringing the suit. At least as he explained it at oral argument, Roberts’ attempt to split the difference between the two competing lines of doctrine is simply incoherent and unworkable.