Ada v. Guam Society of Obstetricians & Gynecologists

Background

A challenge targeted Guam Pub. L. 20-134, a territorial law that outlaws all abortions except in medical emergencies. The Ninth Circuit held the statute unconstitutional on its face, meaning it invalidated the law in every application. The Supreme Court denied review of that judgment, and Justice Scalia, joined by the Chief Justice and Justice White, wrote a dissent from the denial.

Reasoning

The dissent explains that courts normally reject broad, “facial” attacks on laws unless no set of circumstances exists in which the law could be applied constitutionally. Justice Scalia cites earlier decisions saying courts should not strike down entire laws when some applications may be lawful, and he notes that only First Amendment overbreadth claims have traditionally been treated differently. He points out that earlier abortion decisions sometimes used broader reasoning but that later cases explicitly rejected treating abortion rules as automatically overbroad. Scalia argues Guam’s law could be constitutional at least when applied after the fetus can live outside the womb, so the Ninth Circuit should have asked whether any constitutional applications exist instead of invalidating the statute across the board.

Real world impact

Because the Supreme Court refused to take the case, the Ninth Circuit’s facial invalidation remains in effect for now and prevents Guam from enforcing the statute as written. The dissent warns that a facial ruling can stop enforcement even in contexts where the law might be constitutional and that a remand for as-applied analysis could preserve lawful applications. The opinion and dissent also highlight a wider debate about when courts should erase whole laws versus limit enforcement case-by-case.

Dissents or concurrances

Justice Scalia (joined by two colleagues) would have granted review, vacated the Ninth Circuit’s decision, and sent the case back for consideration of whether the law has any constitutional applications.