Leavitt v. Jane L. (1996)

In Depth

Background

A Utah statute passed after the Supreme Court decided Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and before the Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), prohibited abortion throughout pregnancy, subject to certain exceptions.  During the first twenty weeks of pregnancy, an abortion could be performed (1) to save the pregnant woman's life; (2) where the pregnancy resulted from statutory or forcible rape and the rape was reported to a law enforcement agency prior to the performance of the abortion; (3) where the pregnancy resulted from an act of incest and the incest was reported to a law enforcement agency prior to the performance of the abortion; (4) to prevent grave damage to the pregnant's woman's medical health; and (5) to prevent the birth of a child that would be born with grave defects.  After the first twenty weeks of abortion, an abortion could be performed only for the first, fourth and fifth reasons.

Plaintiffs, including a pregnant woman and several physicians who perform abortions, brought a class action lawsuit in federal district court against defendants, the Governor and Attorney General, challenging the abortion prohibition.  The district court struck down the prohibition of abortions performed during or before the twentieth week of pregnancy, but upheld the prohibition of abortions performed after the twentieth week of pregnancy.  Plaintiffs appealed.  On appeal, the court of appeals held that the provision of the statute prohibiting abortions after twenty weeks could not be severed from the provision prohibiting abortions during or before twenty weeks.  The statute had to stand or fall as a unit.  Because the prohibition of abortions performed during or before the twentieth week of pregnancy was unconstitutional, the court invalidated the entire statute.  The Supreme Court granted defendants' petition for review.

The Statutes Under Review

The challenged statute provided, in relevant part:

(2) An abortion may be performed in this state only under the following circumstances:

(a) in the professional judgment of the pregnant woman's attending physician, the abortion is necessary to save the pregnant woman's life;

(b) the pregnancy is the result of rape or rape of a child . . . that was reported to a law enforcement agency prior to the abortion.

(c) the pregnancy is the result of incest . . . , and the incident was reported to a law enforcement agency prior to the abortion.

(d) in the professional judgment of the pregnant woman's attending physician, to prevent the grave damage to the pregnant woman's medical health; or

(e) in the professional judgment of the pregnant woman's attending physician, to prevent the birth of a child that would be born with grave defects.

(3) After 20 weeks gestational age, measured from the date of conception, an abortion may be performed only for those purposes and circumstances described in Subsections 2(a), (d), and (e).

Utah Code Ann. § 76-7-302.

Another section of the abortion statute dealt with the issue of severability:

If any one or more provision, section, subsection, sentence, clause, phrase or word of this part or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this part shall remain effective notwithstanding such unconstitutionality.  The legislature hereby declares that it would have passed this part, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, clause, phrase, or word be declared unconstitutional.

Utah Code Ann. § 76-7-317.

The Court's Holding

By a vote of five-to-four, the Court granted the defendants' petition for review with respect to the issue of severability, summarily reversed the judgment of the court of appeals and remanded the case to that court for further proceedings consistent with the Court's per curiam opinion.

The Court's Reasoning

The per curiam opinion noted that the court of appeals had declared § 76-7-302(3) invalid, not on constitutional grounds, but rather on the ground that it was not severable from § 76-7-302(2), which had been declared unconstitutional because it attempted to prohibit abortions up to and through the twentieth week of pregnancy.  Leavitt, 518 U.S. at 138.  The severability ruling was based upon the court of appeals' view that "the Utah Legislature would not have wanted to regulate the later-term abortions unless it could regulate the earlier-term abortions as well."  Id. The Court, however, repudiated this reasoning:  "Whatever the validity of such speculation as a general matter, in the present case it is flatly contradicted by a provision in the very part of the Utah Code at issue, explicitly stating that each statutory provision was to be regarded as having been enacted independently of the others."  Id.  Because the court of appeals' determination as to the Utah Legislature's intent was "irreconcilable with that body's own statement on the subject," the Court granted the defendants' petition for review and summarily reversed.  Id.

Severability is a matter of state law which, in Utah, as elsewhere, is determined primarily by answering the following question:  Would the legislature have passed the statute without the unconstitutional section? Leavitt, 518 U.S. at 139.  Section 317 answers that question in the affirmative.  The court of appeals erred in holding that § 76-7-302(3) was not severable.  First, the legislature included "not merely the standard 'saving' clause, but a provision that could not be clearer in its message that the legislature 'would have passed [every aspect of the law] irrespective of the fact that any one or more provisions . .  be declared unconstitutional.'" Id at 141 (quoting statute).  Second, the two sections at issue--§§ 76-7-302 and 76-7-303-were "not 'interrelated' any relevant sense-i.e., in the sense of being so interdependent that the remainder of the statute cannot function effectively without the invalidated provision, or in the sense that the invalidated provision could be regarded as part of a legislative compromise, extracted in exchange for the inclusion of other provisions of the statute."  Id. (emphasis in original).

Apart from the particularly strong language of severability embodied in § 76-7-317, the court of appeals posed the wrong question.  The relevant question "is not whether the legislature would prefer (A+B) to B, because, by reason of the invalidation of A that choice is no longer available," but "whether the legislature would prefer not to have B if it could not have A as well." Leavitt, 518 U.S. at 143.  The court of appeals, in effect, said yes.  "It determined that a legislature bent on banning almost all abortions would prefer, if it could not have that desire, to ban no abortions at all rather than merely some." Id. at 143-44.  "This notion," the Court commented, "is, at the very least, questionable when considered in isolation.  But when it is put forward in the face of a statutory text that explicitly states the opposite, it is plainly error."  Id. at 144.  Finally, the per curiam opinion briefly responded to Justice Stevens' dissent from the order granting review.  The Court said that it should not overlook "blatant federal-court nullification of state law," and a "court of appeals' state-law ruling [that] is plainly wrong."   Leavitt, 518 U.S. at 144.

The Dissenting Opinion

Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, dissented from the Court's order granting the petition for review.  His dissent was based on the usual practice of the Court not to grant review "for the sole purpose of deciding a state-law question ruled upon by a federal court of appeal," and on the courts of appeals' supposed greater familiarity with questions of state law.  Leavitt, 518 U.S. at 146 (Stevens, J., dissenting).   Justice Stevens did not take issue with the majority's resolution of the merits of the severability issue.

Note

On remand, the court of appeals declared § 76-7-302(3) unconstitutional.  See Jane L. v. Bangerter, 102 F.3d 1112 (10th  Cir. 1996), and the Supreme Court denied review.