Janklow v. Planned Parenthood

Background

A South Dakota law required a physician to notify a pregnant minor’s parent at least forty-eight hours before performing an abortion, with limited exceptions for emergencies, certified notice, and reported abuse. The Eighth Circuit held the law facially invalid because it would unduly burden a large fraction of minors seeking pre-viability abortions despite the abuse exception, and asked the Supreme Court to review that decision.

Reasoning

The Supreme Court denied review, so the appeals court ruling remains in effect for now. Justice Stevens wrote a memorandum agreeing to deny review and criticizing a rigid earlier statement from United States v. Salerno that a law can be struck down only if “no set of circumstances” exists in which it could be valid; he said that strict wording has been treated as dicta and need not be affirmatively disavowed here. Justice Scalia, joined by the Chief Justice and Justice Thomas, dissented from the denial and argued the Court should grant review to resolve a clear split among appeals courts about how broadly to judge a law’s wording in abortion cases.

Real world impact

Because the Supreme Court declined to hear the case, the appeals court’s invalidation of the South Dakota notification requirement stands for now, affecting how that state may enforce notification rules for minors. The decision leaves unsettled the national standard for judging similar abortion laws and preserves a circuit split that could affect other states and future cases.

Dissents or concurrances

The concurrence (Stevens) emphasized doctrinal caution about Salerno’s dictum; the dissent (Scalia) emphasized circuit conflict and urged full review.