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- SUPREME COURT OF THE UNITED STATES
- JOSEPH F. ADA, GOVERNOR OF GUAM v. GUAM
- SOCIETY OF OBSTETRICIANS &
- GYNECOLOGISTS et al.
- on petition for writ of certiorari to the united
- states court of appeals for the ninth circuit
- No. 92-104. Decided November 30, 1992
-
- The petition for a writ of certiorari is denied.
- Justice Scalia, with whom The Chief Justice and
- Justice White join, dissenting.
- I dissent from the denial of the petition for writ of
- certiorari. The Ninth Circuit held in this case that Guam
- Pub. L. 20-134, outlawing all abortions except in cases of
- medical emergency, is unconstitutional on its face. That
- seems to me wrong, since there are apparently some
- applications of the statute that are perfectly constitutional.
- Statutes are ordinarily challenged, and their con-
- stitutionality evaluated, -as applied--that is, the plain-
- tiff contends that application of the statute in the par-
- ticular context in which he has acted, or in which he pro-
- poses to act, would be unconstitutional. The practical
- effect of holding a statute unconstitutional -as applied- is
- to prevent its future application in a similar context, but
- not to render it utterly inoperative. To achieve the latter
- result, the plaintiff must succeed in challenging the
- statute -on its face.- Our traditional rule has been,
- however, that a facial challenge must be rejected unless
- there exists no set of circumstances in which the statute
- can constitutionally be applied. See, e.g., United States
- v. Salerno, 481 U. S. 739, 745 (1987) (Bail Reform Act of
- 1984 not facially unconstitutional). -[C]ourts are not,- we
- have said, -roving commissions assigned to pass judgment
- on the validity of the Nation's laws.- Broadrick v.
- Oklahoma, 413 U. S. 601, 610-611 (1973). The only
- exception to this rule recognized in our jurisprudence is
- the facial challenge based upon First Amendment free-
- speech grounds. We have applied to statutes restricting
- speech a so-called -overbreadth- doctrine, rendering such
- a statute invalid in all its applications (i.e., facially
- invalid) if it is invalid in any of them. See, e.g., Gooding
- v. Wilson, 405 U. S. 518, 520-523 (1972).
- The Court's first opinion in the abortion area, Roe v.
- Wade, 410 U. S. 113 (1973), seemingly employed an
- -overbreadth- approach-though without mentioning the
- term and without analysis. See id., at 164. Later
- abortion decisions, however, have explicitly rejected
- application of an -overbreadth- doctrine. See Ohio v.
- Akron Center for Reproductive Health, 497 U. S. 502, 514
- (1990) (citing Webster v. Reproductive Health Services, 492
- U. S. 490, 524 (1989) (O'Connor, J., concurring in part
- and concurring in judgment)). As Justice O'Connor
- explained in Webster, this Court's previous decisions
- concerning state and federal funding of abortions -stand
- for the proposition that some quite straightforward
- applications of the Missouri ban on the use of public
- facilities for performing abortions would be constitutional
- and that is enough to defeat appellees' assertion that the
- ban is facially unconstitutional.- Id., at 524. See also
- Rust v. Sullivan, 500 U. S. ___, ___ (1991) (facial
- challenge to federal regulations limiting the ability of
- recipients of federal funds to engage in abortion-related
- activities -is, of course, the most difficult challenge to
- mount successfully, since the challenger must establish
- that no set of circumstances exists under which the Act
- would be valid- (quotation marks omitted; citation
- omitted)). The Court did not purport to change this well-
- established rule last Term, in Planned Parenthood of
- Southeastern Pennsylvania v. Casey, 505 U. S. ___ (1992).
- Facial invalidation based on overbreadth impermissibly
- interferes with the state process of refining and
- limiting-through judicial decision or enforcement
- discretion-statutes that cannot be constitutionally applied
- in all cases covered by their language. And it prevents
- the State (or territory) from punishing people who violate
- a prohibition that is, in the context in which it is applied,
- entirely constitutional. Under this Court's current
- abortion caselaw, including Casey, I see no reason why the
- Guam law would not be constitutional at least in its
- application to abortions conducted after the point at which
- the child may live outside the womb. If that is so, the
- Ninth Circuit should have dismissed the present, across-
- the-board challenge. It is important for this Court to call
- attention to the point, since the course taken by the Ninth
- Circuit here was also followed by the Fifth Circuit in
- affirming the facial invalidation of Louisiana's abortion
- statute, see Sojourner T. v. Edwards, 974 F. 2d 27
- (1992)-though it is possible that there, unlike here, the
- facial challenge point was not asserted by the State.
- I would grant certiorari, vacate the decision of the Court
- of Appeals, and remand the case for the Ninth Circuit to
- consider, as the prevailing legal standard for facial
- challenges requires, whether Guam Pub. L. 20-134 has
- any constitutional applications.
-