On April 29, 1996, the Supreme Court rejected South Dakota's request to revive a law that would have required unmarried girls under 18 years old to notify a parent before having an abortion. The vote was 6-3 not to hear the case, with Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas dissenting.

SUPREME COURT OF THE UNITED STATES

WILLIAM J. JANKLOW, GOVERNOR OF SOUTH
DAKOTA ET AL. v. PLANNED PARENTHOOD,
SIOUX FALLS CLINIC ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT

No. 95-856.

Decided April 29, 1996

The motion of National Right to Life Committee, Inc.,
for leave to file a brief as amicus curiae is granted. The
petition for a writ of certiorari is denied. Memorandum
of  JUSTICE STEVENS, respecting the denial of the
petition for certiorari. The Court's opinion in United
States v. Salerno, 481 U. S. 739 (1987), correctly
summarized a long established principle of our
jurisprudence: "The fact that [a legislative] Act might
operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid."
Id., at 745. Unfortunately, the preceding sentence in the
Salerno opinion went well beyond that principle. That
sentence opens Part II of the opinion with a rhetorical
flourish, stating that a facial challenge must fail unless
there is "no set of circumstances" in which the statute
could be validly applied. Ibid.; post, at 3. That
statement was unsupported by citation or precedent. It
was also unnecessary to the holding in the case, for the
Court effectively held that the statute at issue would be
constitutional as applied in a large fraction of cases. See
481 U. S., at 749-750. While a facial challenge may be
more difficult to mount than an as-applied challenge, the
dicta in Salerno "does not accurately characterize the
standard for deciding facial challenges," and "neither
accurately reflects the Court's practice with respect to
facial challenges, nor is it consistent with a wide array of
legal principles." Dorf, Facial Challenges to State and
Federal Statutes, 46 Stan. L. Rev. 235, 236, 238 (1994).
For these reasons, Salerno's rigid and unwise dictum has
been properly ignored in subsequent cases even outside
the abortion context.1  Accordingly, there is no need for
this Court affirmatively to disavow that unfortunate
language, in the abortion context or otherwise, until it is
clear that a federal court has ignored the appropriate
principle and applied the draconian "no circumstance"
dictum to deny relief in a case in which a facial challenge
would otherwise be successful.2 I thus concur in the
denial of this petition. 1 See, e.g., Planned Parenthood of
Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992)
(statute facially invalid as "substantial obstacle" to
exercise of right in "large fraction" of cases); id., at 972-
973 (REHNQUIST, C. J., concurring in judgment in part
and dissenting in part) (arguing that "no circumstance"
dictum should have led to different result); Kraft Gen.
Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505
U. S. 71, 82 (1992) (REHNQUIST, C. J., dissenting)
(arguing that tax statute was facially valid because it
would be constitutional under certain facts); INS v.
National Center for Immigrants' Rights, 502 U. S. 183,
188 (1991) (applying appropriate rule: "That the
regulation may be invalid as applied in [some] cases, . .
Bowen v. Kendrick, 487 U. S. 589, 602 (1988) (statute
facially invalid under Establishment Clause only if, inter
alia, law's "primary effect" is advancement of religion,
or if it requires "excessive entanglement" between
church and state); id., at 627, n. 1 (Blackmun, J.,
dissenting) (pointing out and agreeing with majority's
failure to apply "no circumstance" dictum); Schaffer v.
Heitner, 433 U. S. 186 (1977) (examining facial validity
of state statute permitting exercise of personal
jurisdiction over defendant without reference to whether
statute was constitutional as applied to petitioner). These
cases, along with other decisions and the holding in
Salerno itself (that the challenged Act was constitutional
in most circumstances, not merely one), should have
braced the dissent against the minor risk of whiplash
from the "head-snapping" observation, post, at 5, that
our "doctrinal pattern is somewhat more complex" than
Salerno's "no circumstance" language suggests, Fallon,
Making Sense of Overbreadth, 100 Yale L. J. 853, 859,
n. 29 (1991) (citing cases). 2 In all likelihood, the
decision of the Fifth Circuit applying the "no
circumstance" test would have been decided the same
way even if that court had utilized the "large fraction"
test applied by the Eighth Circuit in this case. See Barnes
v. Moore, 970 F. 2d 12, 14 (CA5 1992) (noting that the
provisions at issue were "substantially identical" to
provisions upheld in Casey). Furthermore, it is not at all
clear to me, given intervening statements by Members of
this Court, see Fargo Women's Health Organization v.
Schafer, 507 U. S. 1013, 1014 (1993), that subsequent
Fifth Circuit panels would follow Barnes' application of
the "no circumstance" test, providing yet another reason
to deny the petition in this case.


JUSTICE SCALIA, with whom THE CHIEF JUSTICE
and JUSTICE THOMAS join, dissenting. In this case, the
United States Court of Appeals for the Eighth Circuit
declared unconstitutional a South Dakota law which
requires a physician to notify a pregnant minor's parent
of an impending abortion 48 hours before the abortion is
to be performed.1.

The court's basis for the invalidation was that "a large
fraction of minors seeking pre-viability abortions would
be unduly burdened by [the] statute, despite its abuse
exception,"2  Planned Parenthood, Sioux Falls Clinic v.
Miller, 63 F. 3d 1452, 1463 (1995) (emphasis added).
This decision is questionable enough that we should,
since the invalidation of state law is at issue, accord
review. Among other things, it rested upon the court's
belief that "it seems, South Dakota's abuse exception will
sometimes result in parental notification, even if after-
the-fact."  Id., at 1461. That reasoning is inconsistent
with our holding in Ohio v. Akron Center for
Reproductive Health, 497 U. S. 502, 514 (1990), another
case involving a parental notification provision, that
"[t]he Court of Appeals should not have invalidated the
Ohio statute on a facial challenge based upon a worst-
case analysis that may never occur."  The Eighth
Circuit's holding is also dependent on the questionable
conclusions (1) that "parental-notice provisions, like
parental-consent provisions, are unconstitutional without
a Bellotti-type bypass," 63 F. 3d, at 1460, see Bellotti v.
Baird, 443 U. S. 622 (1979), and (2) that the South
Dakota law's exception for abused and neglected minors
did not satisfy the need for a bypass procedure, 63 F. 3d,
at 1460-1463. Beyond these issues, however (or, more
accurately, preceding them), is another question that
virtually cries out for our review. In United States v.
Salerno, 481 U. S. 739 (1987), summarizing a long
established principle of our jurisprudence, we observed:
"A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances
exists under which the Act would be valid. The fact that
[a legislative 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."  Id., at 745.

It has become questionable whether, for some reason,
this clear principle does not apply in abortion cases. As I
observed three Terms ago in a case very similar to this
one, we have sent mixed signals on the question --
seemingly employing an overbreadth approach in Roe v.
Wade, 410 U. S. 113 (1973), but explicitly rejecting that
approach in such later abortion cases as Ohio v. Akron
Center for Reproductive Health, 497 U. S. 502, 514
(1990), and Rust v. Sullivan, 500 U. S. 173, 183
(1991).3   In dissenting from denial of certiorari in Ada
v. Guam Soc. of Obstetricians & Gynecologists, 506 U.
S. 1011, 1013 (1992) I expressed my view that "[t]he
Court did not purport to change this well-established rule
. . . in Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833 (1992)."  Since then, two Members of the
Casey majority have expressed their view that Salerno is
"inconsistent with Casey."  See Fargo Women's Health
Organization v. Schafer, 507 U. S. 1013, 1014 (1993)
(O'CONNOR, J., joined by SOUTER, J., concurring). In
this case, after reviewing the incompatible
pronouncements of the Court's opinions on this subject,
and remarking that "even the Justices of the Supreme
Court dispute Casey's effect," 63 F. 3d, at 1457, the
Court of Appeals concluded, in effect, that Salerno had
been chewed up by the "ad hoc nullification machine"
which is our abortion jurisprudence, Madsen v. Women's
Health Center, Inc., 512 U. S. ___, ___ (1994) (slip op.,
at 2) (SCALIA, J., dissenting). The court decided that
Casey, without so much as alluding to the facial-
challenge rule, "effectively overruled Salerno for facial
challenges to abortion statutes," 63 F. 3d, at 1458. This
holding conflicts head-on with a post-Casey decision of
the Fifth Circuit. In Barnes v. Moore, 970 F. 2d 12, cert.
denied, 506 U. S. 1021 (1992), the Fifth Circuit rejected
a facial challenge to the Mississippi Informed Consent to
Abortion Act. In the process, it said that "[b]ecause the
plaintiffs are challenging the facial validity of the
Mississippi Act, they must establish that no set of
circumstances exists under which the Act would be
valid,'" 970 F. 2d, at 14, adding that "we do not interpret
Casey as having overruled, sub silentio, longstanding
Supreme Court precedent governing challenges to the
facial constitutionality of statutes," id., at 14, n. 2. The
split between the Fifth and Eighth Circuits is
unmistakably clear. The Third Circuit has also weighed
in on this question (albeit in dictum), siding with the
Eighth Circuit. See Casey v. Planned Parenthood of
Southeastern Pa., 14 F. 3d 848, 863, n. 21 (1994). The
Salerno question could not be more squarely presented.
The Court of Appeals explained that "[t]he critical issue
in this case is . . . what is the standard for a challenge to
the facial constitutionality of an abortion law?"  63 F. 3d,
at 1456 (emphasis added). It specifically acknowledged
that "Planned Parenthood cannot meet the Salerno test."
Id., at 1457. Had the Court of Appeals not concluded
that the Salerno rule has been selectively (and sub
silentio) nullified in abortion cases, respondents' facial
challenge quite simply would have failed. JUSTICE
STEVENS' memorandum in support of the denial of this
petition provides even stronger reasons than I have why
it should be granted. JUSTICE STEVENS asserts that
Casey could not possibly have been contrary to the "no
set of circumstances" rule because, contrary to the
repeated statement of our cases, that rule never existed.
For that head-snapping proposition, he relies upon no
less weighty authority than a law-review article by
Michael C. Dorf. According to that author, THE CHIEF
JUSTICE'S statement on behalf of the Court in Salerno
was not only "wrong" but "draconian."  Dorf, Facial
Challenges to State and Federal Statutes, 46 Stan. L. Rev.
235, 238, 239 (1994); see ante, at 2. But if that is so, if
Salerno is a dead letter even outside of the abortion
context, all the more reason to grant certiorari and make
that clear.4   For the courts of appeals regularly enforce
that supposed dead letter, often in cases in which its
"draconian" character prevents the facial challenge from
succeeding. See, e.g., Chemical Waste Management, Inc.
v. United States Environmental Protecton Agency, 56 F.
3d 1434, 1437 (CADC 1995) ("We discern at least one
scenario where the off-site rule would be procedurally
valid. . . . While this hypothetical scenario may not be
common, it is sufficient to establish that petitioners'
facial challenge must fail"); United States v. Mena, 863
F. 2d 1522, 1527 (CA11 1989) ("[T]he defendants have
simply failed even to suggest `that no set of
circumstances exists under which the Act would be
valid.'  Such is the defendant's burden in a case
challenging the facial validity of a congressional
enactment on other than first-amendment grounds");
Roulette v. Seattle, ___ F. 3d ___, ___ (CA9 1996)
("Plaintiffs have conceded that `the city may prevent
individuals or groups of people from sitting or lying
across a sidewalk in such a way as to prevent others from
passing.'  The Seattle ordinance plainly may be applied to
such cases, and plaintiffs' facial substantive due process
challenge therefore fails") (citation omitted);
Government Suppliers Consolidating Servs., Inc. v.
Bayh, 975 F. 2d 1267, 1283 (CA7 1992); Dean v.
McWherter, 70 F. 3d 43, 45 (CA6 1995); National
Treasury Employees Union v. Bush, 891 F. 2d 99, 101
(CA5 1989) ("[B]ecause not every application of the
Order would be invalid, the Order is facially valid");
Jordan v. Jackson, 15 F. 3d 333, 343-344 (CA4 1994);
Giusto v. INS, 9 F. 3d 8, 10 (CA2 1993). Finally, I
cannot let pass without comment JUSTICE STEVENS'
suggestion that Fifth Circuit panels might, in future
abortion cases, ignore the clear language of Salerno, and
the Fifth Circuit's own decision in Barnes, "given
intervening statements by Members of this Court"_by
which he means the memorandum of JUSTICE
O'CONNOR, joined by JUSTICE SOUTER, concurring
in the Court's Order of April 2, 1993, denying (without
opinion) the application for stay and injunction pending
appeal in Fargo Women's Health Organization v. Shafer,
507 U. S. 1013 (1993). See ante, at 2, n. 2. That the
Fifth Circuit might give such authoritative effect to this
two-Justice concurrence is certainly true; courts of
appeals, no less than practitioners, sometimes count votes
instead of following cases. But I am surprised to find
that practice endorsed by JUSTICE STEVENS, who has
hitherto taken a dim view of separate writings appended
to discretionary (and unexplained) denials, calling "all
opinions dissenting from the denial of certiorari" "totally
unnecessary" and "examples of the purest form of dicta."
Singleton v. Commissioner, 439 U. S. 940, 944-945
(1978) (STEVENS, J., respecting the denial of
certiorari). More fundamentally, I find it hard to
understand why one who believes that Salerno's "no set
of circumstances" rule is nothing more than unwise,
rigid and inaccurate dictum, ante, at 1-2, would not seize
upon this opportunity "affirmatively to disavow" it, ante,
at 2, instead of hoping that the courts of appeals will be
induced to abandon it by reading the tea leaves of
concurring opinions. Today's denial serves only one
rational purpose: it makes our abortion ad hoc
nullification machine as stealthful as possible.

For the foregoing reasons, I dissent from the Court's
denial of the petition for certiorari.

END NOTES

1 South Dakota Codified Laws 34-23A-7 (1994 rev.)
provides, in relevant part: "No abortion may be
performed upon an unemancipated minor or upon a
female for whom a guardian has been appointed because
of a finding of incompetency, until at least forty-eight
hours after written notice of the pending operation has
been delivered in the manner specified in this section.
The notice shall be addressed to the parent at the usual
place of abode of the parent and shall be delivered
personally to the parent by the physician or an agent. In
lieu of such delivery, notice may be made by certified
mail addressed to the parent at the usual place of abode
of the parent with return receipt requested and restricted
delivery to the addressee, which means a postal employee
can only deliver the mail to the authorized addressee. If
notice is made by certified mail, the time of delivery
shall be deemed to occur at twelve o'clock noon on the
next day on which regular mail delivery takes place,
subsequent to mailing."

2 South Dakota Codified Laws 34-23A-7 (1994 rev.)
sets forth the following exceptions to its notice
requirement: "No notice is required under this section if:
"(1) The attending physician certifies in the pregnant
minor's medical record that, on the basis of the
physician's good faith clinical judgment, a medical
emergency exists that so complicates the medical
condition of a pregnant female as to necessitate the
immediate abortion of her pregnancy to avert her death
or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily
function and there is insufficient time to provide the
required notice; or "(2) The person who is entitled to
notice certifies in writing that he has been notified; or
"(3) The pregnant minor declares, or provides
information that indicates, that she is an abused or
neglected child as defined in 26-8A-2 and the attending
physician has reported the alleged or suspected abuse or
neglect as required in accordance with [state law]. In
such circumstances, the department of social services, the
state's attorney and law enforcement officers to whom
the report is made or referred for investigation or
litigation shall maintain the confidentiality of the fact that
she has sought or obtained an abortion and shall take all
necessary steps to ensure that this information is not
revealed to her parents."

3 See also Webster v. Reproductive Health Services, 492
U. S. 490, 524 (1989) (O'CONNOR, J., concurring in
part and concurring in judgment) ("[S]ome quite
straightforward applications of the Missouri ban on the
use of public facilities for performing abortions would
be constitutional and that is enough to defeat appellees'
assertion that the ban is facially unconstitutional").
JUSTICE STEVENS' memorandum in support of the
denial of certiorari says that the Salerno rule "has been
properly ignored in subsequent cases even outside the
abortion context."  Ante, at 2. If he means by this that
the rule has consistently been ignored, the statement is
proved false by the cases cited here in text, where the
rule was both recited and followed. (And there are other
post-Salerno cases reciting and applying the rule outside
the abortion context, see, e.g., Anderson v. Edwards,
514 U. S. ___, ___, n. 6 (1995) (slip op., at 11, n.6), and
Reno v. Flores, 507 U. S. 292, 301, 309 (1993).) If, on
the other hand, JUSTICE STEVENS merely means that
the Salerno rule has sometimes "been ignored," though it
has other times been applied, then he makes a good case
for granting rather than denying certiorari.

4 While we are in the process of adopting Prof. Dorf's
revisionist view of Salerno, we could also embrace his
modest proposal for what ought to replace the rule
described in that case. His proposal is not, curiously
enough, the regime that JUSTICE STEVENS suggests,
but rather total elimination of the distinction between
facial and as-applied challenges. Dorf, supra, at 294.

6    JANKLOW v. PLANNED PARENTHOOD

7 JANKLOW v. PLANNED PARENTHOOD