Let’s finish up our (non-exhaustive) examination of flaws in Dorothy Samuels’s essay:
6. Samuels falsely contends that O’Connor, in the Casey case, applied to the spousal-notification provision the same approach to a facial challenge that Ginsburg applied in last week’s case. As I explain in this essay and as Kennedy explains in his majority opinion, the facial-challenge approach (novel and unjustified, to be sure) that O’Connor, Kennedy, and Souter applied in their joint opinion in Casey is dramatically different from Ginsburg’s approach.
7. Samuels asserts that the Court acted inconsistently with its decision last term (in Ayotte v. Planned Parenthood) in which it “voted unanimously to allow a facial challenge to a New Hampshire abortion restriction” thereby allowing the challenge to “go forward.” That’s another falsehood: The case had already reached its conclusion, and the Court, expressly limiting itself to the issue of remedy, ruled that the court below had improperly invalidated the statute in its entirety. Last week’s majority ruling and last year’s ruling in Ayotte are close cousins: The partial-birth ruling stands for the proposition that the possibility of some unconstitutional applications does not justify a facial challenge to an entire law, and Ayotte stands for the proposition that a law need not be invalidated in its entirety merely because it has some unconstitutional applications.
8. Samuels claims that the majority opinion uses “junk science” and improperly dismisses overwhelming medical evidence. (She even cites Linda Greenhouse as authority!) But what Kennedy’s majority opinion establishes is merely that there is “documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.” Rather than adopting either side, it says that the proper means to consider whether the health evidence requires exceptions to the law’s coverage is by as-applied challenge. In other words, those who claim that the law imperils a mother’s health in certain circumstances are free to pursue their claims and present their evidence. If their claims are sound, exceptions to the law’s coverage will be carved out. But the possibility of such exceptions provides no basis for invalidating the entire law.
Altogether, quite a performance by Samuels. But par for the course for the New York Times editorial page, especially on issues involving abortion.