The Casey standard for evaluating facial attacks on abortion statutes

Michigan Law Review

Volumn 95, Issue 5, 1997, Pages 1443-1471

  Ford, John Christopher ^a  

^a NONE

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EID: 0041161427     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290012     Document Type: Review

References (166)

1. See Roe v. Wade, 410 U.S. 113 (1973). This Note takes the existence of the constitutional right to an abortion as a given. It takes no position on whether Roe and cases reaffirming the right to an abortion are sound constitutional decisions, nor does it take any position on the extent to which legislatures should attempt to restrict access to abortion, if any.
2. See Webster v. Reproductive Health Servs., 492 U.S. 490, 565-72 (1989) (Stevens, J., concurring in part and dissenting in part) (reviewing the stance of the Roman Catholic Church, particularly St. Thomas Aquinas, in finding the preamble to a Missouri abortion law a violation of the Establishment Clause).
3. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 887-94 (1992) (plurality opinion) (discussing spousal abuse statistics and sociological studies of women); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 541 (1990) (Akron II) (Blackmun, J., dissenting) (calling for protection of minor women who are "frightened and forlorn, lacking the comfort of loving parental guidance and mature advice." (citing Beal v. Doe, 432 U.S. 438, 463 (1977))).
4. See, e.g., Akron II, 497 U.S. at 520-21 (Scalia, J., concurring) ("Leaving this matter to the political process is not only legally correct, it is pragmatically so. . . . The court should end its disruptive intrusion into this field as soon as possible.").
5. 347 U.S. 483 (1954).
6. See, e.g., Casey, 505 U.S. at 867 (1992) (stating that Brown and the abortion cases are unique in that they called "the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution").
7. See, e.g., Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 236 (1994). Attacks on the facial constitutionality of a state statute wind their way to the Supreme Court by one of two avenues: on appeal from an anticipatory action in the lower federal courts seeking to prevent enforcement of the statute, or on appeal from a state case in which the statute was actually enforced. This Note deals almost exclusively with the first category of cases, which are the most common in the abortion context. See, e.g., Hodgson v. Minnesota, 497 U.S. 417 (1990).
8. See Dorf, supra note 7, at 236.
9. See Lawrence A. Alexander, Is There An Overbreadth Doctrine?, 22 SAN DIEGO L. REV. 541, 542-43 (1985); Dorf, supra note 7, at 236. "As applied" challenges generally require the court to determine whether or not a challenger's activity was constitutionally protected. If so, the court interprets the law in a way that exonerates the challenger and in doing so "trim[s] down" the law to its constitutional size.
10. See GERALD GUNTHER, CONSTITUTIONAL LAW 1192 (12th ed. 1991). This process is widely known as "severability."
11. See Dorf, supra note 7, at 236; Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 853 (1991).
12. This is a slight overstatement. Because the Supreme Court does not have the power to actually repeal state statutes, and because the meaning of state statutes is a matter of state law, see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992), state prosecutors theoretically can seek new, constitutionally permissible interpretations of a statute even after the Supreme Court has "struck down" a previous interpretation. See Dombrowski v. Pfister, 380 U.S. 479, 491 (1964) (finding Louisiana's Subversive Activities and Communist Control Law void on its face but stating that Louisiana could "assume the burden of obtaining a permissible narrow construction in a noncriminal proceeding"); Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 492-508 (1954). They rarely do this.
13. See Sandra Lynne Tholen & Lisa Baird, Con Law is as Con Law Does: A Survey of Planned Parenthood v. Casey in the State and Federal Courts, 28 LOY. L.A. L. REV. 971, 992 (1995) ("The practical effect of holding a statute unconstitutional 'on its face' is to render it completely inoperative."). When a federal court other than the Supreme Court finds a state law facially invalid, the state does not even have to wait for a narrowing construction. Because the lower federal courts stand parallel to and not above state courts, state prosecutors may continue to enforce a statute in state court even after a lower federal court has found it facially invalid. See, e.g., Women's Servs., P.C. v. Douglas, 653 F.2d 355, 358 (8th Cir. 1981) (stating that "a federal plaintiff's [successful] constitutional attack . . . would benefit only that plaintiff: 'the State is free to prosecute others who may violate the statute'" (quoting Doran v. Salem Inn, 422 U.S. 922, 931 (1975))). Even in these situations, however, states very rarely continue to prosecute violations of the statute. See Fallon, supra note 10, at 888 n.219.
14. See, e.g., Fargo Women's Health Org. v. Sinner, 819 F. Supp. 862 (D.N.D. 1993) (asserting a facial attack to a North Dakota statute restricting abortion).
15. 505 U.S. 833 (1992).
16. Casey held that a state can place a legislative ban on abortions after the point at which a fetus becomes viable. See Casey, 505 U.S. at 879. Before viability, the state can attempt to ensure that the woman's choice is informed, but it cannot place an undue burden on that choice. See 505 U.S. at 878. An undue burden is a provision with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. See 505 U.S. at 878.
17. See Planned Parenthood v. Miller, 63 F.3d 1452, 1454-57 (8th Cir. 1995) (noting that the choice between two facial standards "may well determine the outcome of this case").
18. 481 U.S. 739 (1987).
19. 481 U.S. at 745 (emphasis added). Interestingly, this no-set-of-circumstances test was not at all central to the holding of Salerno. See Dorf, supra note 7, at 240-41.
20. See, e.g., New York v. Ferber, 458 U.S. 747, 767-68 (1982).
21. See Salerno, 481 U.S. at 745 ("The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment.").
22. See Dorf, supra note 7, at 239-40.
23. This does not mean, of course, that the law would remain a valid restriction against all women. It could only be narrowed, however, through as-applied challenges.
24. For instance, Guam passed a law preventing abortions unless two doctors independently confirm that the pregnancy poses a serious health risk to the woman. See Guam Socy. of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366, 1368 n.1 (9th Cir.), cert. denied, 506 U.S. 1011 (1992). Justice Scalia, dissenting from the denial of certiorari, argued that the lower courts incorrectly upheld the facial challenge because the Guam law could be applied constitutionally to the "set of circumstances" in which a woman in the post-viability stage of her pregnancy sought an abortion. See Ada v. Guam Socy. of Obstetricians and Gynecologists, 506 U.S. 1011, 1011-13 (1992) (Scalia, J., dissenting from denial of cert.). Scalia's analysis under Salerno is unquestionably correct because neither Roe nor Casey prevent the state from prohibiting such late-term abortions. "If there is a flaw in [Scalia's] argument, it lies with Salerno itself." Dorf, supra note 7, at 238.
25. See infra notes 46-69 and accompanying text.
26. The husband-notification requirement required a physician performing an abortion on a married woman to obtain a signed statement from the woman declaring that she had informed her husband that she was going to have an abortion. Exceptions were provided in cases of medical emergency, or where the woman provided an alternative signed statement declaring that her husband did not impregnate her, that her husband could not be located, that the pregnancy resulted from spousal sexual assault which she reported, or that notifying the husband would cause him or someone else to inflict bodily harm on her. See Planned Parenthood v. Casey, 505 U.S. 833, 887 (1992) (citing the Pennsylvania Abortion Control Act of 1982, 18 PA. CONS. STAT. § 3209 (1990)).
27. Casey, 505 U.S. at 895.
28. Ironically, the break from Salerno came in an opinion which not only extolled the virtues of stare decisis but adhered to that doctrine. In an appropriately described "act of personal courage and constitutional principle," Casey, 505 U.S. at 923 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part), the members of the plurality rested their reaffirmation of Roe v. Wade on stare decisis despite a palpable distaste for that decision. See Casey, 505 U.S. at 857 ("Roe . . . may be seen . . . as a rule (whether or not mistaken) of personal autonomy and bodily integrity."), 864 ("[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided."), 869 ("A decision to overrule Roe[] . . . would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy.").
29. 410 U.S. 113 (1973).
30. Chief Justice Rehnquist noted the plurality's inconsistency with Salerno in a footnote. See Casey, 505 U.S. at 973 n.2 (Rehnquist, J., concurring in the judgment in part and dissenting in part). Justice Blackmun likewise recognized, but did not elaborate on, the fact that the plurality had used a novel test for facial attacks. See Casey, 505 U.S. at 924-25 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). Those were the only two comments on the rather striking development that seems to have occurred.
31. For an extended discussion of the confusion over the facial challenge standard, see Tholen & Baird, supra note 11, at 1004-17 (1995). See also, e.g., Planned Parenthood v. Miller, 63 F.3d 1452, 1457 (8th Cir. 1995).
32. 970 F.2d 12 (5th Cir. 1992).
33. See 970 F.2d at 14 n.2. The next two Fifth Circuit cases also followed Salerno. See Barnes v. Mississippi, 992 F.2d 1335 (5th Cir. 1993); Sojourner T. v. Edwards, 974 F.2d 27 (5th Cir. 1992). In Sojourner T., the court said only that "the plaintiffs challenged the facial validity of the Statute. Thus, we must determine whether the plaintiffs are correct that the Statute cannot be construed and applied without infringing upon constitutionally protected rights." Sojourner T., 974 F.2d at 30 (citing Rust v. Sullivan, 500 U.S. 173, 183 (1991)). The court, in striking the restrictive law, reached the wrong result under Salerno. The statute prohibited all abortions except those necessary to preserve the life or health of the unborn baby, to remove the dead unborn child, to save the life of the mother, or when conception occurred by rape or incest. The statute could be applied, however, with no constitutional infirmity to a healthy woman carrying a viable fetus that was not the product of rape or incest.
34. See Barnes, 970 F.2d at 14-15 ("[W]e conclude that the differences between the Mississippi and Pennsylvania Acts are not sufficient to render the former unconstitutional on its face.").
35. See Tholen & Baird, supra note 11, at 1011-12, 1021-22. For examples of this approach, see Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 530 (8th Cir. 1994); Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah 1992), affd. in part, reversed in part on other grounds, 61 F.3d 1493 (10th Cir. 1995).
36. See Casey v. Planned Parenthood, 14 F.3d 848, 863 n.21 (3d Cir. 1994).
37. Planned Parenthood v. Miller, 63 F.3d 1452, 1458 (8th Cir. 1995).
38. See Schafer, 507 U.S. 1013 (O'Connor, J., concurring in order denying application for stay and injunction pending appeal).
39. See Ada v. Guam Socy. of Obstetricians and Gynecologists, 506 U.S. 1011, 1011-13 (1992) (Scalia, J., dissenting from denial of cert.).
40. See Alexander, supra note 9, at 542 ("The most notable fact about the [overbreadth] doctrine . . . is that what it is and what justifies it remain the subjects of controversy and confusion.").
41. See id. at 541-42; see also, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985).
42. New York v. Ferber, 458 U.S. 747, 767-68 (1982) (citations omitted) ("What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle . . . ."); see also United States v. Raines, 362 U.S. 17, 21 (1960); Henry P. Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 278 n.8 (1984) (citing cases). This rule derives from the presumption that any invalid application of a law may be "severed" from its valid applications. It is also important to note that despite this prudential rule, the Article III-based standing requirement permits the Court to hear any case in which a litigant has a "personal stake" in the outcome.
43. See Marc Rohr, Fighting for the Rights of Others: The Troubled Law of Third-Party Standing and Mootness in the Federal Courts, 35 U. MIAMI L. REV. 393, 394 (1981) (citing Singleton v. Wulff, 428 U.S. 106, 112 ,123 (1976); Warth v. Seidin, 422 U.S. 490, 499-500 (1975)). Thus, while a criminal defendant has standing to challenge a law she is prosecuted under, the prudential rule may prohibit that defendant from raising the constitutional concerns of other parties not before the court.
44. See generally Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423 (1974). This Note does not address the possible "personal stake," or constitutional-level standing problems, which arise when a group such as Planned Parenthood challenges a law. See H.L. v. Matheson, 450 U.S. 398 (1981); Singleton, 428 U.S. at 112, 123;
45. PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 123-25 (1988);
46. Gene R. Nichol, Jr., Injury and the Disintegration of Article III, 74 CAL. L. REV. 1915 (1986).
47. Houston v. Hill, 482 U.S. 451, 455 (1987) (citing HOUSTON, TEX., CODE § 34-11(a) (1984)).
48. See Hill, 482 U.S. at 453.
49. See Hill, 482 U.S. at 458-67.
50. Although this section will refer to overbreadth as if it were one well-defined doctrine, in actuality there are many possible formulations. In Part II, this Note will argue that the formulation voiced in Casey is preferable to the current First Amendment overbreadth standard. See infra notes 110-43.
51. See, e.g., Osborne v. Ohio, 495 U.S. 103, 112 (1990) (stating that overbreadth is exclusively a First Amendment concept).
52. See Roe v. Wade, 410 U.S. 113, 120 (1973). Roe held (i) that during approximately the first trimester of pregnancy, the abortion decision must be left to the pregnant woman and her physician, (ii) that after the first trimester, the state may regulate abortion procedures in ways reasonably related to its interest in the health of the mother, and (iii) that after the point of viability, approximately simultaneous with the start of the third trimester, the state may regulate and even proscribe abortion, except where necessary to preserve the life or health of the woman. See Roe, 410 U.S. at 164-65.
53. See Roe, 410 U.S. at 164.
54. 410 U.S. at 164 (emphasis added); see also Ada v. Guam Socy. of Obstetricians and Gynecologists, 505 U.S. 1011, 1012 (1992) (Scalia, J., dissenting from denial of cert.) ("The Court's first opinion in the abortion area, Roe v. Wade, seemingly employed an 'overbreadth' approach - though without mentioning the term and without analysis." (citation omitted)). Lower court decisions on the same issue that pre-dated Roe also employed overbreadth analysis. See Roe, 410 U.S. at 154-55 (citing Abele v. Markle, 342 F. Supp. 800 (D. Conn. 1972); Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972); Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), modified and affd., 410 U.S. 179 (1973); Doe v. Scott, 321 F. Supp. 1385 (N.D. Ill. 1971); Poe v. Menghini, 339 F. Supp. 986 (D. Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (D.N.J. 1972); Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970); People v. Belous, 458 P.2d 194 (Cal. 1969); State v. Barquet, 262 So. 2d 431 (Fla. 1972)).
55. 462 U.S. 416 (1983).
56. See infra notes 72-82 and accompanying text.
57. Akron, 462 U.S. at 438 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 79 (1976)).
58. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 763, 769 (1986) (noting effect of state-distributed literature on rape victims without stating that any plaintiff was impregnated through rape and finding the statute that called for the distribution facially invalid); Bellotti v. Baird, 443 U.S. 622, 632 (1979) (quoting lower court's characterization of the case as an overbreadth issue); Collauti v. Franklin, 439 U.S. 379, 385, 390 (1979) (not reaching the "overbreadth" claim); Danforth, 428 U.S. at 71 (following Roe and using the chilling-effect rationale); Doe v. Bolton, 410 U.S. 179, 194 (1973) (explicitly using overbreadth analysis); cf. Singleton v. Wulff, 428 U.S. 106, 113-18 (1976) (noting that chilling effect justifies granting physicians jus tertii to assert the rights of patients). But see H.L. v. Matheson, 450 U.S. 398, 405-07 (1981) (considering only the as-applied challenge of an immature minor and refusing to rule on the statute's impact on mature minors). Justice Marshall, joined by Justices Blackmun and Brennan, dissented in Matheson, declaring that the Court should have ruled the law overbroad. See Matheson, 450 U.S. at 427 (Marshall, J., dissenting).
59. See Ada v. Guam Socy. of Obstetricians and Gynecologists, 506 U.S. 1011, 1011-12 (1992) (Scalia, J., dissenting from denial of cert.).
60. See Barnes v. Mississippi, 992 F.2d 1335, 1347 n.10 (5th Cir. 1993) (Johnson, J., dissenting); Fallon, supra note 10, at 859.
61. See, e.g., Ada, 506 U.S. at 1011-13 (Scalia, J., dissenting from denial of cert.).
62. See Webster v. Reproductive Health Servs., 492 U.S. 490, 539-41 (1989) (Blackmun, J., dissenting) (arguing that Missouri statute establishing beginning of life at conception will have chilling effect on those seeking abortion).
63. See Webster, 492 U.S. at 560 (Stevens, J., dissenting) ("[T]he record identifies a sufficient number of unconstitutional applications to support the Court of Appeals' judgment invalidating those provisions.").
64. Justice O'Connor is the only member of the court to have done this. In Webster, she noted the possibility that the statute in question could conceivably limit the use of certain forms of contraception in a manner unconstitutional under Griswold. O'Connor believed, however, that "all of these intimations of unconstitutionality are simply too hypothetical to support the use of declaratory judgement procedures and injunctive remedies in this case." Webster, 492 U.S. at 523 (O'Connor, J., concurring in part and concurring in the judgment). "Maher, Poelker, and McRae stand for the proposition that some quite straightforward applications of the Missouri ban . . . would be constitutional and that is enough to defeat appellees' assertion that the ban is facially unconstitutional." Webster, 492 U.S. at 524 (O'Connor, J., concurring in part and concurring in the judgment). The cases O'Connor cites all uphold government restrictions on abortion funding. In none of them, however, does the Court note even one possible unconstitutional application of the statutes. Thus, in those cases, the Court never had to decide whether to use overbreadth or a Salerno-type standard. See Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519 (1977).
65. See Webster, 492 U.S. at 524 (O'Connor, J., concurring in part and concurring in the judgment).
66. The neglect of the Salerno rule is particularly troubling in Webster, an abortion case unique in its lengthy argument over whether the Court should have reached the abortion issue at all. See Webster, 492 U.S. at 520-21 (plurality), 523-26 (O'Connor, J., concurring in part and concurring in the judgment), 532-37 (Scalia, J., concurring in part and concurring in the judgment), 542, 554 (Blackmun, J., concurring in part and dissenting in part), 560-61 (Stevens, J., concurring in part and dissenting in part).
67. Webster, 492 U.S. at 539 n.1 (Blackmun, J., concurring in part and dissenting in part).
68. 497 U.S. 502, 514 (1990) ("In addition, because appellees are making a facial challenge to a statute, they must show that 'no set of circumstances exists under which the Act would be valid.'" (quoting Webster, 492 U.S. at 524 (O'Connor, J., concurring in part and dissenting in part))).
69. See Akron II, 497 U.S. at 514.
70. 500 U.S. 173 (1991).
71. Interestingly, Rust contains at least one sign that the Court may have been ready to temper the Salerno test, perhaps in order to be able to apply it more regularly without making a radical change in the Court's approach to abortion cases. Rust declares that the regulations survive the facial challenge because they can be applied to "a set of individuals without infringing upon constitutionally protected rights." Rust, 500 U.S. at 183. It may have been in the mind of the Court that the "set of individuals" test - a phrase susceptible to later refinement - could be crafted to less "draconian" effect than the no-set-of-circumstances test, which upholds a law capable of being applied to only one person constitutionally.
72. See Belloti v. Baird, 443 U.S. at 627 n.5 (stating that "[i]t is apparent from the District Court's opinions, however, that it considered the constitutionality of [the abortion statute] as applied to all pregnant minors who might be affected by it," and accepting that "the rights of this entire category of minors properly were subject to adjudication" even though no immature minors were before the court). In Hodgson v. Minnesota, 497 U.S. 417 (1990), the Court found no legitimate state interest served by a two-parent notification provision as applied to families in which one notified parent would not notify the other. See Hodgson, 497 U.S. at 450. It also found legitimate state interests disserved in the case of dysfunctional families. See Hodgson, 497 U.S. at 450-51. The Court, however, as well as the district court below, did not establish that any of the plaintiffs came from dysfunctional families or families in which a notified parent would not notify the other. See Hodgson, 497 U.S. 417; Hodgson v. Minnesota, 648 F. Supp. 756, 759 (D. Minn. 1986). Rather, the Court based its conclusion of unconstitutionality on the effect the law was having on the general population, and made no attempt to relate those findings back to the plaintiff class. See Hodgson, 497 U.S. at 437-39. The district court likewise failed to do so. See Hodgson, 648 F. Supp. at 768.
73. See Dorf, supra note 7, at 276 ("The Casey plurality thus applied 'substantial overbreadth' analysis."). In some cases, courts will allow a party to assert the rights of one particular person not before the court, such as his medical patient, without entertaining an overbreadth argument in which the party can point to the effect that a statute will have on virtually anyone. See Singleton v. Wulff, 428 U.S. 106, 113-18 (1976) (allowing a physician to assert the rights of his patient); Barrows v. Jackson, 346 U.S. 249 (1953) (allowing a white seller of land to assert the constitutional rights of a prospective African-American buyer). This is called standing to assert jus tertii. See BATOR ET AL., supra note 40, at 169-70. Though this conceivably may have occurred in Casey, none of the adjudicating courts required the clinics or their physicians to prove that the husband-notification provision would operate as a restriction on any of their patients. See Planned Parenthood v. Casey, 505 U.S. 833 (1992) (plurality opinion); Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991); Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990).
74. See Casey, 505 U.S. at 894 (accepting respondents' argument that ninety-five percent of married women notify their husbands voluntarily).
75. See Ada v. Guam Socy. of Obstetricians and Gynecologists, 506 U.S. 1011 (1992) (Scalia, J., dissenting from denial of cert.); Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992); Jane L. v. Bangerter, 809 F. Supp. 865 (D. Utah 1992), affd. in part, reversed in part on other grounds, 61 F.3d 1493 (10th Cir. 1995).
76. Cf. Allen v. Wright, 468 U.S. 737, 782 (1984) (Brennan, J., dissenting) ("More than one commentator has noted that the causation component of the Court's standing inquiry is not more than a poor disguise for the Court's view of the merits of the underlying claim."). At least in one instance, a Justice's position on the Salerno-Casey debate seems to be self-contradictory. Justice Scalia, who now believes Salerno calls for a restrained approach to adjudication of abortion laws, see Ada, 506 U.S. at 1011-13 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)), once declared in the same context that the court should not "be run into a corner before . . . grudgingly yield[ing] up our judgment." Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., concurring). In that case, Justice Scalia argued - at a time when the overturning of Roe seemed eminently possible - for a reconsideration of abortion law in light of the fact that Missouri's abortion statute would "sometimes" act as an unconstitutional restraint on physicians. Webster, 492 U.S. at 536-37. After Casey, however, which has somewhat solidified Roe, Justice Scalia has stated that the fact that a law will sometimes operate unconstitutionally is not a reason to entertain a facial challenge. See Ada, 506 U.S. at 1011-13 (Scalia, J., dissenting from denial of cert.).
77. See, e.g., Alexander, supra note 9, at 542 ("The most notable fact about the [overbreadth] doctrine, however, is that what it is and what justifies it remain the subjects of controversy and confusion."); Fallon, supra note 10, at 853 ("More than fifty years after its inception, First Amendment overbreadth doctrine remains little understood." (citation omitted)).
78. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1023 (2nd ed. 1988);
79. David S. Bogen, First Amendment Ancillary Doctrines, 37 MD. L. REV. 679, 705 (1978); Fallon, supra note 10 at 867-70;
80. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the "Chilling Effect," 58 B.U. L. REV. 685, 692 (1978). This type of third-party standing can be distinguished from jus tertii, standing to assert the rights of identifiable third parties.
81. See, e.g., Alexander v. United States, 509 U.S. 544, 555 (1993) ("The 'overbreadth' doctrine . . . is a departure from traditional rules of standing."); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) ("[T]he court has altered its traditional rules of standing to permit - in the First Amendment area - 'attacks on overly broad statutes . . . .'").
82. See generally Schauer, supra note 72.
83. The chilling effect has most poetically been analogized to the sword which Dionysus hung by a single hair over legendary courtier Damocles' head to demonstrate the precarious nature of happiness. See JUDY PEARSALL & BILL TRUMBLE EDS., THE OXFORD ENCYCLOPEDIC DICTIONARY (2d ed. 1995). Like the chilling effect, "the value of a Sword of Damocles is that it hangs - not that it drops." Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).
84. This line of reasoning can be found in several cases. See, e.g., Gooding v. Wilson, 405 U.S. 518, 521 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 619-20 (1971) (White, J., dissenting); Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); United States v. Robel, 389 U.S. 258 (1967); see also Schauer, supra note 72, at 685 ("[T]he concept of the chilling effect has grown from an emotive argument into a major substantive component of First Amendment adjudication. . . . [T]he potential deterrent effect of a vague, or more commonly, an overbroad statute, was seen as reason enough to bend traditional rules of standing." (citation omitted)).
85. See BATOR ET AL., supra note 40, at 188 (questioning the limitation of the chilling effect rationale to the First Amendment area).
86. See THE NEW OUR BODIES, OURSELVES 299 (Jane Pineus & Wendy Sanford eds., 2d ed. 1984) (noting that most first-trimester abortions are performed in clinics with a focus on abortion).
87. See, e.g., H.L. v. Matheson, 450 U.S. 398 (1981) (suit brought after doctor insisted that minor woman comply with parental-notification law).
88. See Dorf, supra note 7, at 271 (noting that the introduction of third parties increases the susceptibility of a woman to the chilling effect). A woman who forgoes a visit to the doctor out of fear that her constitutionally permissible abortion is illegal has already felt the chill. The preceding discussion vindicates one scholar's prophecy that "it is not far-fetched to imagine that there are many cases in which those whose conduct is most subject to chill will number among those who are most knowledgeable about decisional as well as statutory law." Fallon, supra note 10, at 887. This assertion derived from the logical thought that the extent of public awareness of any given state statute depends on the nature of the statute. Id. at 885.
89. See Roe v. Wade, 410 U.S. 113, 125 (1973).
90. The fact that chilling-effect theory applies outside of the First Amendment context has been contemplated by other authorities. See Fallon, supra note 10, at 884 n.192 ("Much of my argument concerning the proper contours of first Amendment overbreadth doctrine would support a doctrine of equal sweep in cases involving alleged infringements of other fundamental rights.").
91. See id. at 885; Martin H. Redish, The Warren Court, The Burger Court and the First Amendment Overbreadth Doctrine, 78 NW. U. L. REV. 1031, at 1040-41 (1984);
92. Note, Overbreadth Review and the Burger Court, 49 N.Y.U. L. REV. 532, 546 (1974). This argument, very persuasive in this form, holds even more weight in the case of a statute that has been saved from an overbreadth challenge by a limiting construction placed on it by state courts because citizens are not at all likely to possess any knowledge of state judicial decisions. See Fallon, supra note 10, at 885.
93. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). This therapeutic metaphor has captured the imagination of courts and commentators alike. See, e.g., Osborne v. Ohio, 495 U.S. 103, 122 (1990) (quoting Broadrick, 413 U.S. at 613); New York v. Ferber, 458 U.S. 747, 769 (1982) (quoting Broadrick, 413 U.S. at 613); Redish, supra note 83, at 1040 (quoting Broadrick, 413 U.S. at 613). Efforts to deviate from it have not succeeded. See Goguen v. Smith, 471 F.2d 88, 97 (1st Cir. 1972) ("[O]verbreadth technique is a powerful weapon which . . . should be applied gingerly.").
94. A similar argument, which suffers identical problems, is that the overbreadth doctrine causes federal courts to exceed their proper authority. See Younger v. Harris, 401 U.S. 37, 52 (1971) ("Procedures for testing the constitutionality of a statute 'on its face' . . . are fundamentally at odds with the function of the federal courts in our constitutional plan.").
95. See Ferber, 458 U.S. at 769 ("[W]e have recognized that the overbreadth doctrine is 'strong medicine' and have employed it with hesitation, and then 'only as a last resort.' We have, in consequence, insisted that the overbreadth be 'substantial' before the statute involved will be invalidated on its face." (citation omitted) (emphasis added)).
96. One could, of course, suggest the First Amendment be our stopping point out of simple fear of the slippery slope. It is true that the argument made here with regard to abortion rights could be extended to any other fundamental right embodied in the Fourteenth Amendment - for example, the right to use contraception. This Note does not address those cases. It should alleviate the fears of the wary to note that, in this context, the slope, while perhaps steep, is very short. See Dorf, supra note 7, at 269 (arguing that overbreadth, at its extreme, would extend only to First Amendment rights and privacy rights). Admittedly, this issue has already come up in "right to die" cases, see People v. Kevorkian, 447 Mich. 436, 467-68 n.33 (1995) (noting that the choice between Salerno and Casey must be made if the right to die is recognized); Compassion in Dying v. Washington, 49 F.3d 586, 591 (9th Cir. 1995) (refusing to apply Salerno), as well as Establishment Clause cases, see Ingebretsen v. Jackson Public School District, 864 F. Supp. 1473, 1483 (S.D. Miss. 1994) (holding that "the rigid dictates of Salerno do not apply in Establishment Clause cases," which are covered by the three-part Lemon test); Walker v. San Francisco Unified Sch. Dist., 741 F. Supp. 1386, 1398 (N.D. Cal. 1990) (choosing to apply the Lemon test rather than Salerno). Under the Lemon test, a statute violates the Establishment Clause if it (i) does not have a secular purpose, (ii) if its principal or primary effect is to inhibit religion, or (iii) if it fosters an " 'excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (quoting Walz v. Tax Commn., 397 U.S. 664, 674 (1974)).
97. See Marsh v. Alabama, 326 U.S. 501, 509 (1946) ("When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position."); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943) (mentioning the preferred position of freedoms of press, speech, and religion); Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844, 852 (1970) ("[P]referred status is the ultimate rationale of the overbreadth doctrine . . . .").
98. See, e.g., Fallon, supra note 10, at 884 n.192. But see a discussion of this issue in the very informative article, Edmond Cahn, The Firstness of the First Amendment, 65 YALE L.J. 464 (1956).
99. See Note, Inseparability in Application of Statutes Impairing Civil Liberties, 61 HARV. L. REV. 1208, 1209 (1948).
100. See Stanley v. Georgia, 394 U.S. 557 (1969) (holding that the First Amendment protects the private possession of obscene material).
101. See GUNTHER, supra note 9, at lxvi-lxvii.
102. See Cahn, supra note 89, at 479 (arguing against the practice of balancing free speech rights against the interest of the community). If the community benefit of an individual's speech ranks as highly as this argument suggests, it is unclear why a state could not compel speech of certain individuals that is of particular benefit to the community. We know, however, that the recognized right not to speak, see Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), inter alia, would render the compulsion invalid. But see Schauer, supra note 72, at 691 (arguing that speech is unique in that the courts actually think of it as an affirmative good); LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST SPEECH IN AMERICA 9-10, 107 (1986) (stating that free speech theory has traditionally focused on the value of the speech, not its importance to an individual).
103. See Dorf, supra note 7, at 265 (citing Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992)).
104. Note, supra note 90, at 1209.
105. Jews for Jesus, Inc. v. Board of Airport Commrs., 661 F. Supp. 1223 (C.D. Cal. 1985), affd., 785 F.2d 791 (9th Cir. 1986), affd., 482 U.S. 569 (1987).
106. Webster v. Reproductive Health Servs., 492 U.S. 490, 555 (1989) (Blackmun, J., concurring in part and dissenting in part).
107. See Webster, 492 U.S. at 504-07.
108. See Webster, 492 U.S. at 509.
109. See generally GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 1063-65 (2d ed. 1991) (reviewing the balancing approach to the First Amendment);
110. see also Jerold H. Israel, Elfbrandt v. Russell: The Demise of the Oath?, 1966 SUP. CT. REV. 193, 217-19 (stating that the overbreadth doctrine applies when the governmental interest sought to be implemented is too insubstantial, or at least insufficient in relation to the inhibitory effect on First Amendment freedom).
111. See, e.g., Marsh v. Alabama, 326 U.S. 501, 509 (1946) (holding that free speech rights have preeminence over property rights); Tucker v. Texas, 326 U.S. 517 (1946) (same).
112. See Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1, 39 ("In sum, overbreadth analysis is concerned with the substance of constitutional review; it does not rely on any distinctive standing component."); Monaghan, supra note 40, at 283.
113. For a modified version of Monaghan's approach, see Robert Allen Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 CAL. L. REV. 1308 (1982).
114. But see Robert Allen Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 YALE L.J. 599 (1962) (arguing that in overbreadth doctrine cases, the Supreme Court allows parties to assert the rights of others). Monaghan's approach has been labeled an "attempt to discredit" overbreadth analysis. See Alexander, supra note 9, at 542.
115. See Monaghan, Overbreadth, supra note 102, at 3.
116. See id.
117. "Judicial conclusions of overbreadth or of the availability of less restrictive alternatives are equivalents. They are simply different statements that other, more finely tuned means exist to vindicate any presumably valid state policies." Id. at 38 n.157 (citations omitted). But see National Treasury Employees v. United States, 990 F.2d 1271, 1274-75 (D.C. Cir. 1993) (arguing that the number of invalid applications required by overbreadth analysis is probably greater than the number of invalid applications required under the least-restrictive-means test, thus suggesting a difference between the two).
118. See, e.g., United States v. Raines, 362 U.S. 17, 22 (1960); Yazoo & Mississippi Valley R.R. v. Jackson Vinegar Co., 226 U.S. 217 (1912); Monaghan, supra note 102, at 4.
119. Monaghan, supra note 102, at 4; see also Redish, supra note 83, at 1034 (arguing that it is surely correct that the overbreadth doctrine applies outside the First Amendment context).
120. Justice Scalia noted that the deferential undue-burden standard tolerates direct regulation of protected activity to a greater degree than the strict scrutiny test. See Planned Parenthood v. Casey, 505 U.S. 833, 988 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part). Possibly anticipating its expansion to other contexts, Justice Scalia called the undue-burden standard "quite dangerous." Casey, 505 U.S. at 988 (Scalia, J., concurring in the judgment in part and dissenting in part). Justice Blackmun also asserted that application of strict scrutiny would have required the Court to strike down provisions which were upheld. See Casey, 505 U.S. at 932-35 (Blackmun, J., dissenting); cf. City of Akron v. Akron Ctr. for Reproductive Health, Inc., 426 U.S. 416, 463 (1983) (O'Connor, J., dissenting) (arguing that the undue-burden analysis does indeed use strict scrutiny, but only after a threshold determination that the statute in question constitutes an undue burden).
121. But see Casey, 505 U.S. at 988-90 (Scalia, J., dissenting) (noting the difficulty in defining a "due" burden).
122. Cf. Fallon, supra note 10, at 868 n.94 ("I do think it implausible, or at least misleading, to claim that the Constitution requires exactly the overbreadth doctrine that we have now, or indeed an overbreadth doctrine defined by any specific set of doctrinal rules.").
123. See, e.g., United States v. Raines, 362 U.S. 17, 21 (1960).
124. See Broadrick v. Oklahoma, 413 U.S. 601 (1972).
125. There is more than one possible formulation of the overbreadth doctrine. See supra note 44 and accompanying text; cf. Ferber, 458 U.S. at 768 n.21 ("Overbreadth challenges are only one type of facial attack.").
126. New York v. Ferber, 458 U.S. 747, 770 (1982); see also Broadrick, 413 U.S. at 615; Haig v. Agee, 453 U.S. 280, 309 n.61 (1981) (arguing that overbreadth challenges may not be made by those whose conduct falls into the "hard core" of the protected area). For a history of the overbreadth doctrine, see Fallon, supra note 10, at 863-64; Redish, supra note 83, at 1031.
127. See Planned Parenthood v. Casey, 505 U.S. 833, 895 (1992) (plurality opinion).
128. See Casey, 505 U.S. at 887-92. The Supreme Court was actually reviewing the District Court's 387 findings of fact. See Planned Parenthood v. Casey, 744 F. Supp. 1323, 1329-72 (E.D. Pa. 1990).
129. They are not incorrect to do so; the undue-burden test does in fact require courts to entertain the elusive, fact-based question of whether a law places a "substantial obstacle" in front of a woman who has chosen to undergo an abortion procedure. See Tholen & Baird, supra note 11, at 980.
130. The Court noted that it was a "close[ ] question" whether the 24-hour waiting period placed an undue burden on those women who must travel far to obtain an abortion, those who face increased exposure to harassment by anti-abortion protestors, those with the fewest financial resources, and those who have difficulty explaining their whereabouts to husbands, employers, or others. See Casey, 505 U.S. at 885-86. A more developed factual record may yet persuade the Court that a 24-hour waiting period acts as an undue burden towards some women. See Casey, 505 U.S. at 887 ("[O]n the record before us . . . we are not convinced that the 24-hour waiting period constitutes an undue burden." (emphasis added)). But see Dorf, supra note 7, at 276 (incorrectly stating that the Court found the 24-hour waiting provision to be an undue burden towards rural and poor women, but not a large enough number of women to justify facial invalidation).
131. See Fargo Women's Health Org. v. Schafer, 113 S. Ct. 1668, 1669 (1993); Casey, 505 U.S. at 895. Of course, in the case of an as-applied challenge, a Utah court would only need ask whether the woman before it is poor.
132. To understand why abortion-seeking women who would not otherwise wait 24 hours are the denominator of the Casey fraction, see infra notes 135-39 and accompanying text.
133. See Schafer, 113 S. Ct. at 1669 (O'Connor, J., concurring in denial of stay and injunction pending appeal) (noting that the Casey large-fraction standard requires a review of the facts). The reliability of statistics, of course, will be hotly litigated in a court using the Casey standard.
134. The small number of abortion clinics in a given state might, for example, make a statutory 24-hour waiting period burdensome to a greater number of women in that state than in Pennsylvania. Therefore, lower courts have been misguided in analogizing to the provisions upheld in Casey without looking at the realities of life in the forum state.
135. A ban on political activity by government employees may be particularly "chilling" if, for instance, the supervisors of those employees informally enforce the ban. In such a situation, see, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 617-18 (1972), the state employees are likely to be deterred from "speaking," and unlikely ever to raise First Amendment concerns in a defense to a state prosecution.
136. See supra note 80. The fact that a woman must consult an informed doctor and medical staff before obtaining an abortion suggests that restrictive statutes will "chill" the exercise of her right.
137. For a discussion of the disparity of abortion availability across states and counties, see Donald P. Judges, Taking Care Seriously: Relational Feminism, Sexual Difference, and Abortion, 73 N.C. L. REV. 1323, 1470-75 (1995).
138. See Judges, supra note 125, at 1454 n.447; Tholen & Baird, supra note 11, at 1003; Valerie J. Pacer, Note, Salvaging the Undue Burden Standard - Is It a Lost Cause? The Undue Burden Standard and Fundamental Rights Analysis, 73 WASH. U. L.Q. 295, 309 n.94 (1994). Plaintiffs in a case challenging a restrictive Mississippi abortion statute apparently recognized that the Casey overbreadth standard required a state-specific factual inquiry. The plaintiffs unwisely chose to use some down-home language in making their correct argument: In their ppst-Casey supplemental brief, plaintiffs reduce their argument to the amorphism "Mississippi ain't Pennsylvania[,]"[ ] stating, "The record in this case proves what all know empirically: Mississippi ain't Pennsylvania." This speaks volumes about the invalidity of their challenge to the Mississippi Act on its face; in fact, no more really need be said. Barnes v. Moore, 970 F.2d 12, 15 n.5 (5th Cir. 1992). The court here was perhaps too angry to get the law right.
139. Of course, even the notion that the extent of a specific person's constitutional protection depends on where she lives is not foreign to the Constitution. See Miller v. California, 413 U.S. 15 (1973) (making obscenity exception to the First Amendment dependent, inter alia, on community standards).
140. See Planned Parenthood v. Casey, 505 U.S. 833, 893-95 (1992) (plurality opinion).
141. See City of Houston v. Hill, 482 U.S. 451, 458 n.6 (1987) (noting that although evidence regarding the actual application and enforcement of the law is not necessary for facial invalidation, such evidence has been found to be probative of the law's potential for unconstitutional application, that is, probative of its overbreadth) (cited in Rachel N. Pine, The Role of Facts in Judicial Protection of Fundamental Rights, 136 U. PA. L. REV. 655, 699 n.192 (1988)); Hodell v. Irving, 481 U.S. 704, 723-25 (1987) (Stevens, J., concurring) (rejecting the use of hypotheticals); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1983) (stating that plaintiffs must demonstrate a realistic danger that the challenged ordinance would compromise First Amendment freedoms).
142. See Osborne v. Ohio, 495 U.S. 103, 108-11 (1993).
143. Cf. Craig v. Boren, 429 U.S. 190, 224 (1976) (Rehnquist, J., dissenting) ("[T]he legislature is not required to prove before a court that its statistics are perfect.").
144. See Fallon, supra note 10, at 861. Despite this fear, Professor Fallon accepts overbreadth analysis in First Amendment cases. He does not explain, or even argue, how overbreadth is any less abstract in the First Amendment context than others. Instead, he makes a judgment, not thoroughly explained, that abstractness is sufferable when First Amendment rights are involved because those are the most important. See id. at 884 n.192.
145. See Planned Parenthood v. Casey, 744 F. Supp. 1323, 1329-72 (E.D. Pa. 1990). Moreover, the Court has been more concerned with tying its findings to the facts of the world in other areas of the law. When deciding whether a "rational basis" supports a statute, the Justices often speculate on the hypothetical rational basis a legislature might have had for passing certain legislation rather than consider its actual purpose. The Court very nearly accepted the argument that when conducting this inquiry, which it does quite often, it should look to find the actual basis rather than a posited one. See GUNTHER, supra note 9, at 621 n.9. The argument for a focus on the legislature's articulated purpose was posed in Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972). Some members of the Court accepted the "real world" focus outright, see GUNTHER, supra note 9, at 621 n.9, and others balked, presumably only out of the fear of imposing requirements on the legislative body, see id. In the overbreadth area, by contrast, a concern with facts does not saddle state legislatures with additional responsibilities, and thereby result in an unwise intrusion into the legislative realm. See United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) ("It is, of course, 'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision,' because this Court has never insisted that a legislative body articulate its reasons for enacting a statute." (citation omitted)).
146. See Planned Parenthood v. Casey, 505 U.S. 833, 925 (1992) (Blackmun, J., concurring).
147. See 505 U.S. at 894-95.
148. See, e.g., Utah Women's Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1489 (D. Utah 1994).
149. Casey, 505 U.S. at 894 (emphasis added) (citation omitted).
150. It may be, for instance, that those with enough money to do so tend to see a doctor more than once before having an abortion, thus independently creating a 24-hour waiting period.
151. See Casey, 505 U.S. at 894.
152. Casey, 505 U.S. at 973-74 n.2 (Rehnquist, J., concurring in the judgment in part and dissenting in part). Justice Rehnquist called for the continued vitality of Salerno. See Casey, 505 U.S. at 972-73.
153. See BATOR ET AL., supra note 40, at 193 (noting the speculative nature of the overbreadth inquiry); Fallon, supra note 10, at 893 ("The hard question, normatively as well as doctrinally, is how the substantiality of a statute's overbreadth ought to be gauged."); see also C. Douglas Floyd, The Justiciability Decisions of the Burger Court, 60 NOTRE DAME L. REV. 862, 907 (1985) (noting the empirical nature of the overbreadth inquiry and the Burger Court's failure to determine to what extent a judgment on overbreadth should be qualitative or quantitative). On the question of what number of unconstitutional applications is "substantial," see National Treasury Employees Union v. United States, 990 F.2d 1271, 1274-75 (D.C. Cir. 1993) (arguing that the number of invalid applications required is probably greater than the number of invalid applications required under the least-restrictive-means test); Redish, supra note 83, at 1064 (stating that the substantiality requirement is satisfied if a majority of applications are unconstitutional), see also Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1563-66 (7th Cir. 1986) (Coffey, J., dissenting) (discussing the relation between the two standards).
154. Another commentator has perhaps said it best: [W]hile it is true that there are behavioral assumptions that provide the basis for chilling effect analysis, the lack of any ability to quantify or test these assumptions does not dimmish the significance of the chilling effect as a substantive doctrine. The doctrine flows from the relationship between our recognition of the inevitability of error and our preference for a particular type of error; and it is the existence of this relationship, rather than the scientific accuracy of the predictions of human behavior, which justifies the formulation of substantive rules in this area. Schauer, supra note 72, at 688-89.
155. See Casey, 505 U.S. at 891-93 (citing AMA COUNCIL ON SCIENTIFIC AFFAIRS, VIOLENCE AGAINST WOMEN (1991);
156. Nancy M. Shields & Christine R. Hanneke, Battered Wives Reactions to Marital Rape, in THE DARK SIDE OF FAMILIES: CURRENT FAMILY VIOLENCE RESEARCH 131, 144 (David Finkelhor et al. eds., 1983);
157. LENORE E. WALKER, THE BATTERED WOMAN SYNDROME 27-28 (1984);
158. Tracy Bennet Herbert et al., Coping with an Abusive Relationship: I. How and Why do Women Stay?, 53 J. MARRIAGE & FAM. 311 (1991);
159. B.E. Aguirre, Why Do They Return? Abused Wives in Shelters, 30 J. NATL. ASSN. SOC. WORKERS 350, 352 (1985));
160. James A. Mercy & Linda E. Saltzman, Fatal Violence Among Spouses in the United States, 1976-85, 79 AM. J. PUB. HEALTH 595 (1989);
161. Domestic Violence: Terrorism in the Home: Hearing Before the Subcomm. on Children, Family, Drugs and Alcoholism of the Senate Comm. on Labor and Human Resources, 101st Cong. 3 (1990);
162. Barbara Ryan & Eric Plutzer, When Married Women Have Abortions: Spousal Notification and Marital Interaction, 51 J. MARRIAGE & FAM. 41, 44 (1989).
163. See Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1988) (Scalia, J., concurring). Roe in fact generated, more than it built upon, the national abortion controversy. See Earl M. Maltz, Abortion, Precedent, and the Constitution, 68 NOTRE DAME L. REV. 11, 27 (1992).
164. See Walter Dellinger & Gene Sperline, Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 U. PA. L. REV. 83 (1989) (noting the imperilled status of the right to an abortion).
165. See M. Chester Nolte, Invalid for Vagueness or Overbreadth: Challenging Prohibitions of Protected Speech, 30 WEST'S EDUC. LAW REP. 1017-18 (suggesting that the overbreadth standard is a question of judicial activism).
166. Casey, 505 U.S. at 850.