AYOTTE, ATTORNEY GENERAL OF NEW HAMP- SHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND et al.

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320 OCTOBER TERM, 2005
Syllabus
AYOTTE, ATTORNEY GENERAL OF NEW HAMP-
SHIRE v. PLANNED PARENTHOOD OF
NORTHERN NEW ENGLAND et al.
certiorari to the united states court of appeals for
the first circuit
No. 04–1144. Argued November 30, 2005—Decided January 18, 2006
New Hampshire’s Parental Notification Prior to Abortion Act, in relevant
part, prohibits physicians from performing an abortion on a pregnant
minor until 48 hours after written notice of such abortion is delivered to
her parent or guardian. The Act does not require notice for an abortion
necessary to prevent the minor’s death if there is insufficient time to
provide notice, and permits a minor to petition a judge to authorize her
physician to perform an abortion without parental notification. The
Act does not explicitly permit a physician to perform an abortion in
a medical emergency without parental notification. Respondents, who
provide abortions for pregnant minors and expect to provide emergency
abortions for them in the future, filed suit under Rev. Stat. § 1979, 42
U. S. C. § 1983, claiming that the Act is unconstitutional because it lacks
a health exception and because of the inadequacy of the life exception
and the judicial bypass’ confidentiality provision. The District Court
declared the Act unconstitutional and permanently enjoined its enforce
ment, and the First Circuit affirmed.
Held: If enforcing a statute that regulates access to abortion would be
unconstitutional in medical emergencies, invalidating the statute en
tirely is not always necessary or justified, for lower courts may be able
to render narrower declaratory and injunctive relief. Pp. 326–332.
(a) As the case comes to this Court, three propositions are estab
lished. First, States have the right to require parental involvement
when a minor considers terminating her pregnancy. Second, a State
may not restrict access to abortions that are “ ‘necessary, in appropriate
medical judgment for preservation of the life or health of the mother.’ ”
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879
(plurality opinion). Third, New Hampshire has not taken issue with
the case’s factual basis: In a very small percentage of cases, pregnant
minors need immediate abortions to avert serious and often irreversible
damage to their health. New Hampshire has conceded that, under this
Court’s cases, it would be unconstitutional to apply the Act in a manner
that subjects minors to significant health risks. Pp. 326–328.

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Syllabus
(b) Generally speaking, when confronting a statute’s constitutional
flaw, this Court tries to limit the solution to the problem, preferring to
enjoin only the statute’s unconstitutional applications while leaving the
others in force, see United States v. Raines, 362 U. S. 17, 20–22, or to
sever its problematic portions while leaving the remainder intact,
United States v. Booker, 543 U. S. 220, 227–229. Three interrelated
principles inform the Court’s approach to remedies. First, the Court
tries not to nullify more of a legislature’s work than is necessary. Sec
ond, mindful that its constitutional mandate and institutional compe
tence are limited, the Court restrains itself from “rewrit[ing] state law
to conform it to constitutional requirements.” Virginia v. American
Booksellers Assn., Inc., 484 U. S. 383, 397. Third, the touchstone for
any decision about remedy is legislative intent. After finding an appli
cation or portion of a statute unconstitutional, the Court must ask:
Would the legislature have preferred what is left of its statute to no
statute at all? See generally, e. g., Booker, supra, at 227. Here, the
courts below chose the most blunt remedy—permanently enjoining the
Act’s enforcement and thereby invalidating it entirely. They need not
have done so. In Stenberg v. Carhart, 530 U. S. 914—where this Court
invalidated Nebraska’s “partial birth abortion” law in its entirety for
lacking a health exception—the parties did not ask for, and this Court
did not contemplate, relief more finely drawn, but here New Hampshire
asked for and respondents recognized the possibility of a more modest
remedy. Only a few applications of the Act would present a constitu
tional problem. So long as they are faithful to legislative intent, then,
in this case the lower courts can issue a declaratory judgment and
an injunction prohibiting the Act’s unconstitutional application. On
remand, they should determine in the first instance whether the leg
islature intended the statute to be susceptible to such a remedy.
Pp. 328–331.
(c) Because an injunction prohibiting unconstitutional applications or
a holding that consistency with legislative intent requires invalidating
the statute in toto should obviate any concern about the Act’s life excep
tion, this Court need not pass on the lower courts’ alternative holding.
If the Act survives in part on remand, the Court of Appeals should
address respondents’ separate objection to the judicial bypass’ con
fidentiality provision. P. 332.
390 F. 3d 53, vacated and remanded.
O’Connor, J., delivered the opinion for a unanimous Court.
Kelly A. Ayotte, Attorney General of New Hampshire,
petitioner, argued the cause pro se. With her on the briefs

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322 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN
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Counsel
were Michael A. Delaney, Deputy Attorney General, Daniel
J. Mullen, Associate Attorney General, and Laura E. B.
Lombardi and Anthony I. Blenkinsop, Assistant Attorneys
General.
Solicitor General Clement argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Assistant Attorney General Keisler, Kan
non K. Shanmugam, and Marleigh D. Dover.
Jennifer Dalven argued the cause for respondents. With
her on the briefs were Steven R. Shapiro, Louise Melling,
Talcott Camp, Corinne Schiff, Brigitte Amiri, Diana Kas
dan, Lawrence A. Vogelman, and Dara Klassel.*
*Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First
Assistant Attorney General, Edward D. Burbach, Deputy Attorney Gen
eral, R. Ted Cruz, Solicitor General, and Joel L. Thollander, Assistant
Solicitor General, and by the Attorneys General for their respective States
as follows: Troy King of Alabama, Mike Beebe of Arkansas, John W. Suth
ers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Flor
ida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Michael A. Cox
of Michigan, Jim Hood of Mississippi, Wayne Stenehjem of North Dakota,
Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E.
Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff
of Utah, Judith Williams Jagdmann of Virginia, and Patrick J. Crank
of Wyoming; for the American Association of Pro Life Obstetricians and
Gynecologists et al. by Steven H. Aden; for the American Center for Law
and Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth,
and Walter M. Weber; for the Association of American Physicians & Sur
geons et al. by Dorinda C. Bordlee, Nikolas T. Nikas, and James L.
Hirsen; for the Eagle Forum Education & Legal Defense Fund by Andrew
L. Schlafly; for the Family Research Council, Inc., et al. by Robert P.
George; for the National Legal Foundation by Barry C. Hodge; for New
Hampshire Legislators by Teresa Stanton Collett; for the Rutherford In
stitute by John W. Whitehead and James J. Knicely; for the Thomas More
Society by Paul Benjamin Linton and Thomas Brejcha; for the United
States Conference of Catholic Bishops et al. by Mark E. Chopko and Mi
chael F. Moses; for University Faculty for Life by Richard G. Wilkins; for
Alaska Lieutenant Governor Loren Leman et al. by Kevin Gilbert Clark
son; for Minnesota Governor Tim Pawlenty et al. by Ms. Collett; for Har
lon Reeves by Kelly Shackelford; for Margie Riley et al. by James Joseph

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Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
We do not revisit our abortion precedents today, but rather
address a question of remedy: If enforcing a statute that reg
ulates access to abortion would be unconstitutional in medi
cal emergencies, what is the appropriate judicial response?
We hold that invalidating the statute entirely is not always
necessary or justified, for lower courts may be able to render
narrower declaratory and injunctive relief.
I
A
In 2003, New Hampshire enacted the Parental Notifica
tion Prior to Abortion Act. N. H. Rev. Stat. Ann. §§ 132:24–
132:28 (2005). The Act prohibits physicians from perform
ing an abortion on a pregnant minor (or a woman for whom
a guardian or conservator has been appointed) until 48 hours
after written notice of the pending abortion is delivered
Lynch, Jr.; for New Hampshire State Representative Kathleen Souza
et al. by Clarke D. Forsythe and Denise M. Burke; and for James P. Weiers
et al. by Len L. Munsil.
Briefs of amici curiae urging affirmance were filed for the American
College of Obstetricians and Gynecologists et al. by A. Stephen Hut, Jr.,
and Kimberly A. Parker; for the Center for Adolescent Health & the Law
et al. by Elizabeth B. McCallum, Susan Frietsche, and David S. Cohen;
for the Center for Reproductive Rights et al. by Sanford M. Cohen, Simon
Heller, and Priscilla Smith; for the National Coalition Against Domestic
Violence et al. by Maria T. Vullo and Julie Goldscheid; for Organizations
Committed to Women’s Equality by Jennifer K. Brown; for the Religious
Coalition for Reproductive Choice et al. by Caroline M. Brown; for New
Hampshire Governor John H. Lynch by Katherine M. Hanna; and for New
Hampshire State Representative Terie Norelli et al. by Kenneth J. Barnes.
Briefs of amici curiae were filed for the Horatio R. Storer Foundation,
Inc., by James Bopp, Jr., and Thomas J. Marzen; for the Legal Defense
for Unborn Children by Alan Ernest; for Liberty Counsel by Mathew D.
Staver, Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister;
for NARAL Pro-Choice America Foundation et al. by Elizabeth A. Caven
dish, James P. Joseph, and Leslie M. Hill; and for Maureen L. Curley
et al. by Philip D. Moran.

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Opinion of the Court
to her parent or guardian. § 132:25(I). Notice may be de
livered personally or by certified mail. §§ 132:25(II), (III).
Violations of the Act are subject to criminal and civil penal
ties. § 132:27.
The Act allows for three circumstances in which a physi
cian may perform an abortion without notifying the minor’s
parent. First, notice is not required if “[t]he attending
abortion provider certifies in the pregnant minor’s record
that the abortion is necessary to prevent the minor’s death
and there is insufficient time to provide the required notice.”
§ 132:26(I)(a). Second, a person entitled to receive notice
may certify that he or she has already been notified.
§ 132:26(I)(b). Finally, a minor may petition a judge to au
thorize her physician to perform an abortion without paren
tal notification. The judge must so authorize if he or she
finds that the minor is mature and capable of giving informed
consent, or that an abortion without notification is in the mi
nor’s best interests. § 132:26(II). These judicial bypass
proceedings “shall be confidential and shall be given prece
dence over other pending matters so that the court may
reach a decision promptly and without delay,” and access to
the courts “shall be afforded [to the] pregnant minor 24 hours
a day, 7 days a week.” §§ 132:26(II)(b), (c). The trial and
appellate courts must each rule on bypass petitions within
seven days. Ibid.
The Act does not explicitly permit a physician to per
form an abortion in a medical emergency without parental
notification.
B
Respondents are Dr. Wayne Goldner, an obstetrician and
gynecologist who has a private practice in Manchester, and
three clinics that offer reproductive health services. All
provide abortions for pregnant minors, and each anticipates
having to provide emergency abortions for minors in the fu
ture. Before the Act took effect, respondents brought suit
under 42 U. S. C. § 1983, alleging that the Act is unconstitu

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tional because it fails “to allow a physician to provide a
prompt abortion to a minor whose health would be endan
gered” by delays inherent in the Act. App. 10 (Complaint,
¶ 24). Respondents also challenged the adequacy of the
Act’s life exception and of the judicial bypass’ confidential
ity provision.
The District Court declared the Act unconstitutional, see
28 U. S. C. § 2201(a), and permanently enjoined its enforce
ment. It held, first, that the Act was invalid for failure “on
its face [to] comply with the constitutional requirement that
laws restricting a woman’s access to abortion must provide
a health exception.” Planned Parenthood of Northern New
Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH 2003). It also found
that the Act’s judicial bypass would not operate expedi
tiously enough in medical emergencies. In the alternative,
the District Court held the Act’s life exception unconstitu
tional because it requires physicians to certify with impossi
ble precision that an abortion is “necessary” to avoid death,
and fails to protect their good faith medical judgment.
The Court of Appeals for the First Circuit affirmed. Cit
ing our decisions in Stenberg v. Carhart, 530 U. S. 914, 929–
930 (2000), Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and Roe
v. Wade, 410 U. S. 113, 164–165 (1973), it observed: “Comple
menting the general undue burden standard [for reviewing
abortion regulations], the Supreme Court has also identified
a specific and independent constitutional requirement that
an abortion regulation must contain an exception for the
preservation of the pregnant woman’s health.” Planned
Parenthood of Northern New Eng. v. Heed, 390 F. 3d 53, 58
(2004). It went on to conclude that the Act is unconstitu
tional because it does not contain an explicit health excep
tion, and its judicial bypass, along with other provisions of
state law, is no substitute. The Court of Appeals further
found the Act unconstitutional because, in its view, the life
exception forces physicians to gamble with their patients’

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lives by prohibiting them from performing an abortion with
out notification until they are certain that death is imminent,
and is intolerably vague. Because the district and appellate
courts permanently enjoined the Act’s enforcement on the
basis of the above infirmities, neither reached respondents’
objection to the judicial bypass’ confidentiality provision.
We granted certiorari, 544 U. S. 1048 (2005), to decide
whether the courts below erred in invalidating the Act in its
entirety because it lacks an exception for the preservation of
pregnant minors’ health. We now vacate and remand for
the Court of Appeals to reconsider its choice of remedy.
II
As the case comes to us, three propositions—two legal and
one factual—are established. First, States unquestionably
have the right to require parental involvement when a mi
nor considers terminating her pregnancy, because of their
“strong and legitimate interest in the welfare of [their] young
citizens, whose immaturity, inexperience, and lack of judg
ment may sometimes impair their ability to exercise their
rights wisely.” Hodgson v. Minnesota, 497 U. S. 417, 444–
445 (1990) (opinion of Stevens, J.).1 Accordingly, we have
1 Forty-four States, including New Hampshire, have parental involve
ment (that is, consent or notification) laws. Thirty-eight of those laws
have explicit exceptions for health or medical emergencies. Ala. Code
§ 26–21–5 (1992); Alaska Stat. § 18.16.060 (2004); Ariz. Rev. Stat. Ann. § 36–
2152(G)(2) (West 2003); Ark. Code Ann. §§ 20–16–802(2), 20–16–805(1)
(2005 Supp.); Cal. Health & Safety Code Ann. § 123450 (West 1996); Colo.
Rev. Stat. § 12–37.5–103(5) (2004); Del. Code Ann., Tit. 24, §§ 1782(d), 1787
(1997); Fla. Stat. Ann. §§ 390.01114(2)(d), (3)(b) (West Supp. 2006); Ga. Code
Ann. § 15–11–116 (2005); Idaho Code § 18–609A(1)(a)(v) (Lexis Cum. Supp.
2005); Ill. Comp. Stat., ch. 750, § 70/10 (West 2004); Ind. Code § 16–34–2–4
(West 2004); Iowa Code § 135L.3 (2005); Kan. Stat. Ann. § 65–6705( j)(1)(B)
(2002); Ky. Rev. Stat. Ann. §§ 311.720, 311.732 (West Supp. 2005); La. Stat.
Ann. § 40:1299.35.12 (West Supp. 2005); Mass. Gen. Laws, ch. 112, § 12S
(West 2004); Mich. Comp. Laws Ann. §§ 722.902(b), 722.905 (West 2002);
Miss. Code Ann. § 41–41–57 (2005); Mont. Code Ann. §§ 50–20–203(5),
50–20–208 (2005); Neb. Rev. Stat. § 71–6906(1) (2003); Nev. Rev. Stat.

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long upheld state parental involvement statutes like the Act
before us, and we cast no doubt on those holdings today.
See, e. g., Lambert v. Wicklund, 520 U. S. 292 (1997) (per cu
riam); Casey, supra, at 899 ( joint opinion); Ohio v. Akron
Center for Reproductive Health, 497 U. S. 502, 510–519
(1990); Hodgson, 497 U. S., at 461 (O’Connor, J., concurring
in part and concurring in judgment in part); id., at 497–501
(Kennedy, J., concurring in judgment in part and dissenting
in part).2
Second, New Hampshire does not dispute, and our prece
dents hold, that a State may not restrict access to abortions
that are “ ‘necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother.’ ” Casey,
§ 442.255(1) (2003); N. J. Stat. Ann. §§ 9:17A–1.3, 9:17A–1.6 (West 2002);
N. M. Stat. Ann. § 30–5–1 (2004); N. C. Gen. Stat. Ann. § 90–21.9 (Lexis
2003); N. D. Cent. Code Ann. §§ 14–02.1–03(1), 14–02.1–03.1(2) (Lexis
2004); Ohio Rev. Code Ann. § 2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63,
§ 1–740.2(B) (West Cum. Supp. 2006); 18 Pa. Cons. Stat. §§ 3203, 3206
(2002); R. I. Gen. Laws § 23–4.7–4 (1996); S. C. Code Ann. § 44–41–30(C)(1)
(2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. § 37–10–305 (2005); Tex.
Occ. Code Ann. § 164.052(a)(19) (West Cum. Supp. 2005), Tex. S. B. 419,
§ 1.42(a)(19) (2005) (enrolled); Utah Code Ann. §§ 76–7–301(2), 76–7–305
(Lexis Supp. 2005); Va. Code Ann. § 18.2–76 (2004); W. Va. Code § 16–2F–5
(Lexis 2001); Wis. Stat. § 48.375 (2003–2004). Two States give physicians
sufficient discretion to perform an abortion to protect minors’ health. Me.
Rev. Stat. Ann., Tit. 22, § 1597–A (2004); Md. Health Code Ann. § 20–103
(2005). Four, including New Hampshire, make no exception for minors’
health in an emergency. N. H. Stat. § 132:26 (2005); Minn. Stat. § 144.343
(2004); Mo. Rev. Stat. § 188.028 (2000); Wyo. Stat. Ann. § 35–6–118 (2003).
2 It is the sad reality, however, that young women sometimes lack a
loving and supportive parent capable of aiding them “to exercise their
rights wisely.” Hodgson, 497 U. S., at 444 (opinion of Stevens, J.); see
id., at 450–451, and n. 36 (opinion of the Court) (holding unconstitutional
a statute requiring notification of both parents, and observing that “the
most common reason” young women did not notify a second parent was
that the second parent “was a child- or spouse-batterer, and notification
would have provoked further abuse” (citation omitted)). See also Depart
ment of Health and Human Services, Administration on Children, Youth
and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the
perpetrators in 79.7% of cases of reported abuse or neglect).

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505 U. S., at 879 (plurality opinion) (quoting Roe, 410 U. S.,
at 164–165); see also Thornburgh v. American College of Ob
stetricians and Gynecologists, 476 U. S. 747, 768–769 (1986);
Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ash
croft, 462 U. S. 476, 482–486 (1983) (opinion of Powell, J.);
Planned Parenthood of Central Mo. v. Danforth, 428 U. S.
52, 79 (1976).
Third, New Hampshire has not taken real issue with the
factual basis of this litigation: In some very small percentage
of cases, pregnant minors, like adult women, need immediate
abortions to avert serious and often irreversible damage to
their health. See 296 F. Supp. 2d, at 65, n. 4.
New Hampshire has maintained that in most if not all
cases, the Act’s judicial bypass and the State’s “competing
harms” statutes should protect both physician and patient
when a minor needs an immediate abortion. See N. H. Rev.
Stat. Ann. § 627:3(I) (1996) (for criminal liability, “[c]onduct
which the actor believes to be necessary to avoid harm to . . .
another is justifiable if the desirability and urgency of avoid
ing such harm outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the stat
ute defining the offense charged”); § 627:1 (similar for civil
liability). But the District Court and Court of Appeals
found neither of these provisions to protect minors’ health
reliably in all emergencies. 296 F. Supp. 2d, at 65–66; 390
F. 3d, at 61–62. And New Hampshire has conceded that,
under our cases, it would be unconstitutional to apply the
Act in a manner that subjects minors to significant health
risks. See Reply Brief for Petitioner 2, 8, 11; Tr. of Oral
Arg. 6, 14.
III
We turn to the question of remedy: When a statute re
stricting access to abortion may be applied in a manner that
harms women’s health, what is the appropriate relief? Gen
erally speaking, when confronting a constitutional flaw in a
statute, we try to limit the solution to the problem. We pre

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fer, for example, to enjoin only the unconstitutional applica
tions of a statute while leaving other applications in force,
see United States v. Raines, 362 U. S. 17, 20–22 (1960), or to
sever its problematic portions while leaving the remainder
intact, United States v. Booker, 543 U. S. 220, 227–229 (2005).
Three interrelated principles inform our approach to reme
dies. First, we try not to nullify more of a legislature’s
work than is necessary, for we know that “[a] ruling of uncon
stitutionality frustrates the intent of the elected representa
tives of the people.” Regan v. Time, Inc., 468 U. S. 641, 652
(1984) (plurality opinion). It is axiomatic that a “statute
may be invalid as applied to one state of facts and yet valid
as applied to another.” Dahnke-Walker Milling Co. v.
Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the “nor
mal rule” is that “partial, rather than facial, invalidation is
the required course,” such that a “statute may . . . be de
clared invalid to the extent that it reaches too far, but other
wise left intact.” Brockett v. Spokane Arcades, Inc., 472
U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S.
1 (1985); United States v. Grace, 461 U. S. 171, 180–183 (1983).
Second, mindful that our constitutional mandate and insti
tutional competence are limited, we restrain ourselves from
“rewrit[ing] state law to conform it to constitutional require
ments” even as we strive to salvage it. Virginia v. Ameri
can Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). Our
ability to devise a judicial remedy that does not entail quint
essentially legislative work often depends on how clearly we
have already articulated the background constitutional rules
at issue and how easily we can articulate the remedy. In
United States v. Grace, supra, at 180–183, for example, we
crafted a narrow remedy much like the one we contemplate
today, striking down a statute banning expressive displays
only as it applied to public sidewalks near the Supreme
Court but not as it applied to the Supreme Court Building
itself. We later explained that the remedy in Grace was a
“relatively simple matter” because we had previously dis

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tinguished between sidewalks and buildings in our First
Amendment jurisprudence. United States v. Treasury Em
ployees, 513 U. S. 454, 479, n. 26 (1995). But making distinc
tions in a murky constitutional context, or where line
drawing is inherently complex, may call for a “far more
serious invasion of the legislative domain” than we ought to
undertake. Ibid.
Third, the touchstone for any decision about remedy is leg
islative intent, for a court cannot “use its remedial powers to
circumvent the intent of the legislature.” Califano v. West
cott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and
dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286,
289–290 (1924) (opinion for the Court by Brandeis, J.). After
finding an application or portion of a statute unconstitu
tional, we must next ask: Would the legislature have pre
ferred what is left of its statute to no statute at all? See
generally Booker, supra, at 227; Minnesota v. Mille Lacs
Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska
Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin
Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210,
234 (1932); The Employers’ Liability Cases, 207 U. S. 463,
501 (1908); Allen v. Louisiana, 103 U. S. 80, 83–84 (1881);
Trade-Mark Cases, 100 U. S. 82, 97–98 (1879). All the while,
we are wary of legislatures who would rely on our interven
tion, for “[i]t would certainly be dangerous if the legislature
could set a net large enough to catch all possible offenders,
and leave it to the courts to step inside” to announce to whom
the statute may be applied. United States v. Reese, 92 U. S.
214, 221 (1876). “This would, to some extent, substitute the
judicial for the legislative department of the government.”
Ibid.
In this case, the courts below chose the most blunt rem
edy—permanently enjoining the enforcement of New Hamp
shire’s parental notification law and thereby invalidating it
entirely. That is understandable, for we, too, have previ

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ously invalidated an abortion statute in its entirety because
of the same constitutional flaw. In Stenberg, we addressed
a Nebraska law banning so-called “partial birth abortion” un
less the procedure was necessary to save the pregnant wom
an’s life. We held Nebraska’s law unconstitutional because
it lacked a health exception. 530 U. S., at 930 (lack of a
health exception was an “independent reaso[n]” for finding
the ban unconstitutional). But the parties in Stenberg did
not ask for, and we did not contemplate, relief more finely
drawn.
In the case that is before us, however, we agree with New
Hampshire that the lower courts need not have invalidated
the law wholesale. Respondents, too, recognize the possibil
ity of a modest remedy: They pleaded for any relief “just and
proper,” App. 13 (Complaint), and conceded at oral argument
that carefully crafted injunctive relief may resolve this case,
Tr. of Oral Arg. 38, 40. Only a few applications of New
Hampshire’s parental notification statute would present a
constitutional problem. So long as they are faithful to legis
lative intent, then, in this case the lower courts can issue a
declaratory judgment and an injunction prohibiting the stat
ute’s unconstitutional application.
There is some dispute as to whether New Hampshire’s leg
islature intended the statute to be susceptible to such a
remedy. New Hampshire notes that the Act contains a
severability clause providing that “[i]f any provision of this
subdivision or the application thereof to any person or cir
cumstance is held invalid, such invalidity shall not affect the
provisions or applications of this subdivision which can be
given effect without the invalid provisions or applications.”
§ 132:28. Respondents, on the other hand, contend that New
Hampshire legislators preferred no statute at all to a statute
enjoined in the way we have described. Because this is an
open question, we remand for the lower courts to determine
legislative intent in the first instance.

546US2 Unit: $U20 [08-25-08 08:57:04] PAGES PGT: OPIN
332 AYOTTE v. PLANNED PARENTHOOD OF NORTHERN
NEW ENG.
Opinion of the Court
IV
Either an injunction prohibiting unconstitutional applica
tions or a holding that consistency with legislative intent re
quires invalidating the statute in toto should obviate any
concern about the Act’s life exception. We therefore need
not pass on the lower courts’ alternative holding. Finally, if
the Act does survive in part on remand, the Court of Appeals
should address respondents’ separate objection to the judi
cial bypass’ confidentiality provision. The judgment of the
Court of Appeals is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.