OCTOBER TERM, 1995
Per Curiam
LEAVITT, GOVERNOR OF UTAH, ET AL.
v.
JANE L. ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
No. 95-1242. Decided June 17, 1996
Utah law permits abortions under only five enumerated
circumstances with respect to pregnancies of 20 weeks or less, Utah
Code Ann. § 76-7302(2), and under only three of those circumstances
with respect to pregnancies of more than 20 weeks, § 76-7-302(3).
The law also provides that the legislature "would have passed
[every aspect of the law] irrespective of the fact that anyone or
more provision ... be declared unconstitutional." § 76-7-317. The
Federal District Court held § 302 (2) unconstitutional, but found §
302(3) to be both constitutional and severable. However, the Tenth
Circuit concluded that § 302(3) was not severable, reasoning that
the Utah Legislature would not have wanted to regulate later-term
abortions unless it could regulate earlier-term ones.
Held: The Tenth Circuit's severability decision is flatly
contradicted by § 76-7-317 and, thus, is unsustainable. Contrary to
that court's conclusion, Utah law does not require the
subordination of severability clauses to the legislature's
overarching substantive intentions. Utah cases support the
proposition that, where a statute's provisions are interrelated, a
court may not select the Act's valid portions and conjecture that
they should stand independently of the invalid portions. However,
such concerns are absent here. There is no need to resort to
conjecture, for § 317 could not be clearer in its message that the
legislature intended §§ 302(2) and (3) to be severable. In
addition, the two subsections are not "interrelated" in 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 statutory provisions.
Certiorari granted;
61 F.3d
1493, reversed and remanded.
PER CURIAM.
The State of Utah seeks review of a ruling by the Court of
Appeals for the Tenth Circuit which declared invalid a provision of
Utah law regulating abortions "[a]fter 20 weeks gestational age."
Utah Code Ann. § 76-7-302(3) (1995).
138
Per Curiam
The court made that declaration, not on the ground that the
provision violates federal law, but rather on the ground that the
provision was not severable from another provision of the same
statute, purporting to regulate abortions up to 20 weeks'
gestational age, which had been struck down as unconstitutional.
The court's severability ruling was based on its 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. 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. Because we regard the
Court of Appeals' determination as to the Utah Legislature's intent
to be irreconcilable with that body's own statement on the subject,
we grant the petition for certiorari as to this aspect of the
judgment of the Court of Appeals, and summarily reverse.
Utah law, as amended by legislation enacted in 1991, establishes
two regimes of regulation for abortion, based on the term of the
pregnancy. With respect to pregnancies 20 weeks old or less, §
302(2) permits abortions only under five enumerated circumstances,
Utah Code Ann. § 76-7-302(2) (1995). With respect to pregnancies of
more than 20 weeks, § 302(3) permits abortions under only three of
the five circumstances specified in § 302(2). § 76-7-302(3).1 In
the
1 The two subsections state:
"(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;
139
present suit for declaratory and injunctive relief, the District
Court for the District of Utah held § 302(2) to be
unconstitutional, but § 302(3) to be both constitutional and
severablei.
e., enforceable despite the invalidation of the
other provision.
Jane L. v.
Bangerter, 809 F. Supp.
865, 870 (1992). Upon appeal by the plaintiffs with regard to the
latter provision, the Court of Appeals for the Tenth Circuit held
that it could not be enforced, regardless of its constitutionality,
because it was not severable from the invalidated portion of the
law.
Jane L. v.
Bangerter, 61
F.3d 1493, 1499 (1995). The State argues that that conclusion
is simply unsustainable in light of the Utah Legislature's express
indication to the contrary, and we agree.
Severability is of course a matter of state law. In Utah, as the
Court of Appeals acknowledged, the matter "is determined first and
foremost by answering the following question: Would the legislature
have passed the statute without the unconstitutional section?"
Id., at 1497 (citing
Stewart v.
Utah Public
Service Comm'n, 885 P. 2d 759, 779 (Utah 1994)). A provision of
the abortion part of the Utah Code, to which these two sections
were added, answers that question. Section 317 provides:
"If anyone 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
"(d) in the professional judgment of the pregnant woman's
attending physician, to prevent 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 (1995).
140
Per Curiam
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 anyone or more provision, section,
subsection, sentence, clause, phrase, or word be declared
unconstitutional." Utah Code Ann. § 76-7-317 (1995) (emphasis
added).
In the face of this statement by the Utah Legislature of its own
intent in enacting regulations of abortion, the Court of Appeals
nonetheless concluded that §§ 302(2) and 302(3) were
not
severable because the Utah Legislature did not intend them to be
so. The Court of Appeals' opinion not only did not regard the
explicit language of § 317 as determinative-it did not even use it
as the point of departure for addressing the severability question.
It understood Utah law as instructing courts to "subordinate
severability clauses, which evince the legislature's intent
regarding the
structure of the statute, to the legislature's
overarching
substantive intentions." 61 F. 3d, at 1499
(emphasis added). The court divined in the 1991 amendments a
"substantive intent" to prohibit virtually all abortions, see
id., at 1497-1498, and went on to conclude that since, in
its view, severing § 302(2) from § 302(3) would frustrate this
overarching purpose, both provisions had to stand or fall together,
see
id., at 1499. We believe that the Court of Appeals erred
at both steps of this progression.
The dichotomy between "structural" and "substantive" intents is
nowhere to be found in the Utah cases cited as authority by the
Court of Appeals. Indeed, none of those cases even speaks in terms
of "conflicts among legislative intentions,"
id., at 1498.
The cases
do support the proposition that, "even where a
savings clause exist[s], where the provisions of the statute are
interrelated, it is not within the scope of thee] court's function
to select the valid portions of
141
the act and conjecture that they should stand independently of
the portions which are invalid."
State v.
Salt Lake
City, 445 P. 2d 691, 696 (Utah 1968). See also
Salt Lake
City v.
International Assn. of Firefighters, 563 P. 2d
786, 791 (Utah
1977); Carter v.
Beaver County Service
Area No. One, 399 P. 2d 440, 441 (Utah 1965). But those
concerns are absent from this case, for two reasons. First, because
there is no need to resort to "conjecture": The legislature's
abortion laws include 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 anyone or more provision ... be
declared unconstitutional." § 76-7-317.2 And second, because the
two sections at issue here are
not "interrelated" in 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.3 Nothing like that appears here.
The Court of Appeals described § 302(3) as
2 In none of the Utah cases relied upon by the Court of Appeals
was there a legislative statement of this sort. In both
Salt
Lake City v.
International Assn. of Firefighters, 563 P.
2d 786 (1977), and
Carter v.
Beaver County Service Area
No. One, 399 P. 2d 440 (1965), the saving clauses at issue
simply declared: "If any provision of this act, or the application
of any provision to any person or circumstance, is held invalid,
the remainder of this act shall not be affected thereby." See 1975
Utah Laws, ch. 102, § 10; 1961 Utah Laws, ch. 34, § 3. And in
State v.
Salt Lake City, 445 P. 2d 691, 696 (1968),
the court treated the saving clause in the municipal ordinance
under review as no different from the one discussed in
Carter, upon which the court relied.
3 Compare
International Assn. of Firefighters, supra, at
791 ("The [invalidated] provisions ... are
an integral part
of the act .... The concept of binding arbitration is
wholly
interdependent with the other provisions of the act");
Carter, supra, at 441-442 ("[T]he separability clause ... is
ineffective, because of the
dependency of the remaining
sections upon the provisions declared inoperative") (emphases
added).
142
Per Curiam
"modif[ying]" § 302(2), and concluded that, "[w]ith the
nullification of the abortion ban in section 302(2), the statute
was gutted, and section 302(3) was left purposeless without an
abortion ban to modify." 61 F. 3d, at 1498. But as examination of
the provisions makes apparent, see n. 1,
supra, § 302(3)
cannot possibly be said to "modify" § 302(2) in the sense of being
an adjunct to it, as an adjective "modifies" a noun. Rather, it can
be said to "modify" § 302(2) only in the sense of altering its
disposition-permitting, for post-20week abortions, some but not all
of the justifications allowed (for earlier-term abortions) by §
302(2). It is impossible to see how this could lead to the
conclusion that § 302(3) is left "purposeless" when § 302(2) is
declared inoperative. Of course § 302(3) does incorporate by
reference permissible justifications for abortion set forth in §
302(2), instead of repeating them verbatim, but this drafting
device can hardly be thought to establish such "interdependence"
that § 302(3) becomes "purposeless" when § 302(2) is unenforceable.
To the contrary, § 302(3) sets out in straightforward and
selfoperative fashion the circumstances under which an abortion may
be performed "[a]fter 20 weeks gestational age."
But even if the Court of Appeals were correct in treating § 317
like an ordinary saving clause; even if it were right in believing
that there existed the "interrelationship" between §§ 302(2) and
302(3) that would permit an ordinary saving clause to be
disregarded; and even if it had not invented the notion of
"structural-substantive" dichotomy; the reasoning by which it
concluded that the "substantive" intent of the Utah Legislature was
to forgo all regulation of abortion unless it could obtain total
regulation is flawed. The court reasoned that, because the intent
of the 1991 amendments was "to prohibit all abortions, regardless
of when they occur during the pregnancy, except in the few
specified circumstances," 61 F. 3d, at 1497, and because §§ 302(2)
and 302(3) "operated as a unified expression of [that] intent,"
ibid., for
143
the court to separate § 302(2) from § 302(3) based on the
unconstitutionality of the former would "clearly undermin[e] the
legislative purpose to ban most abortions,"
id., at
1498.4
This mode of analysis, if carried out in every case, would
operate to defeat every claim of severability. Every legislature
that adopts, in a single enactment, provision A plus provision B
intends (A+B); and that enactment, which reads (A+B), is invariably
a "unified expression of that intent," so that taking away A from
(A+B), leaving only B, will invariably "clearly undermine the
legislative purpose" to enact (A+B). But the fallacy in applying
this reasoning to the severability question is that it is not the
severing that will take away A from (A+B) and thus foil the
legislature's intent; it is the
invalidation of A (in this
case, because of its unconstitutionality) which does so-an
invalidation that occurs
whether or not the two provisions
are severed. The relevant question, in other words, 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. The relevant
question is whether the legislature would prefer not to have B if
it could not have A as well. Here, the Court of Appeals in effect
said yes. It determined that a legislature bent
4The Court of Appeals also adverted to Utah Code Ann.
§76-7-317.2 (1995), which it interpreted as "making an exception to
the general severability clause specifically for section 302."
Jane L. v.
Bangerter, 61 F. 3d, at 1499. Section
317.2 does nothing of the sort. It provides, simply, that "[i]f
Section 76-7-302 as amended by Senate Bill 23, 1991 Annual General
Session, is ever held to be unconstitutional by the United States
Supreme Court, Section 76-7-302, as enacted by Chapter 33, Laws of
Utah 1974, is reenacted and immediately effective." This provision
does not speak to severability, but to the consequence of
invalidation, presumably total invalidation. (For if the
invalidation of § 302(2) alone triggered § 317.2, then
all
of §302 would be replaced by the pre-existing, 1974 version. But
the Court of Appeals did not decree § 302(1) as inoperative, nor
did respondents seek that result.) Respondents make no effort to
defend the ruling below on the basis of §317.2.
144
Per Curiam
on banning almost all abortions would prefer, if it could not
have that desire, to ban no abortions at all rather than merely
some. This notion 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.
***
We have summarily set aside unsupportable judgments in cases
involving only individual claims, see,
e. g., Board of Ed. of
Rogers v.
McCluskey, 458 U. S. 966, 969-971
(1982);
National Bank of North America v.
Associates of
Obstetrics & Female Surgery, Inc., 425 U. S. 460, 460-461
(1976). Much more is that appropriate when what is at issue is the
total invalidation of a statewide law, see,
e. g., Idaho Dept.
of Employment v.
Smith, 434 U. S. 100, 100-102
(1977). To be sure, we do not normally grant petitions for
certiorari solely to review what purports to be an application of
state law; but we have done so, see
Steele v.
General
Mills, Inc., 329 U. S. 433, 438, 440-441 (1947);
Wichita
Royalty Co. v.
City Nat. Bank of Wichita Falls, 306 U. S. 103, 107
(1939),5 and undoubtedly should do so where the alternative is
allowing
5 The dissent says that our review in
Wichita Royalty Co.
"was plainly motivated by a concern to give effect to [the] new
mandate" of
Erie R. Co. v.
Tompkins, 304 U. S. 64 (1938), that
federal courts apply state substantive law in diversity cases.
Post, at 147. It remains the case, however, that "the
only question for our decision" was whether the Court of
Appeals was correct in its interpretation of state law. 306 U. S.,
at 107 (emphasis added). As for
Steele v.
General Mills,
Inc., 329 U. S.
433 (1947), there our review was prompted by concern that the
judgment below "undermine[d] the transportation policy of Texas,"
id., at 438. But unless we were wrong in
Steele to
regard this as "a question of such importance" as to justify
review,
ibid., the Tenth Circuit's "undermin[ing] [of] the
[abortion] policy of [Utah]" presents an issue equally worth our
attention. If the dissent is correct that
Steele was our
last case of this sort, it indicates only that we have not since
been faced with a federal court's equivalently clear
misinterpretation of a state law of equivalent significance.
145
blatant federal-court nullification of state law. The dissent
argues that "[t]he doctrine of judicial restraint" weighs against
review,
post, at 146, but it is an odd notion of judicial
restraint that would compel us to cast a blind eye on overreaching
by lower federal courts. The fact observed by the dissent, that the
"underlying substantive issue in this case" is a controversial one,
generating "a kind of 'hydraulic pressure' that motivates ad hoc
decisionmaking,"
ibid., provides a greater, not a lesser,
justification for reversing state-law determinations that seem
plainly wrong. In our view, these considerations combine to make
this an "extraordinary cas[e]" worth our effort of summary review,
post, at 147.
Finally, the dissent's appeal to the supposed greater expertise
of courts of appeals regarding state law is particularly weak (if
not indeed counterindicative) where a Court of Appeals panel
consisting of judges from Oklahoma, Colorado, and Kansas has
reversed the District Court of Utah on a point of Utah law. If, as
we have said, the courts of appeals owe no deference to district
court adjudications of state law, see
Salve Regina College
v.
Russell, 499 U. S. 225, 239-240
(1991), surely there is no basis for regarding panels of circuit
judges as "better qualified" than we to pass on such questions, see
post, at 146. Our general presumption that courts of appeals
correctly decide questions of state law reflects a judgment as to
the utility of reviewing them in most cases, see
Salve Regina
College, supra, at 235, n. 3, not a belief that the courts of
appeals have some natural advantage in this domain, cf.
Brockett v.
Spokane Arcades, Inc., 472 U. S. 491, 500 (1985)
("[WJe surely have the authority to differ with the lower federal
courts as to the meaning of a state statute");
Cole v.
Richardson, 405 U. S. 676, 683-685
(1972). That general presumption is obviously inapplicable where
the court of appeals' state-law ruling is plainly wrong, a
conclusion that the dissent does not even contest in this case.
146
The opinion of the Tenth Circuit in this case is not
sustainable. Accordingly, we grant the petition as to the
severability question, summarily reverse the judgment, and remand
the case to the Court of Appeals for further proceedings.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
The severability issue discussed in the Court's
per
curiam opinion is purely a question of Utah law. It is contrary
to our settled practice to grant a petition for certiorari for the
sole purpose of deciding a state-law question ruled upon by a
federal court of appeals. The justifications for that practice are
well established: The courts of appeals are more familiar with and
thus better qualified than we to interpret the laws of the States
within their Circuits; the decision of a federal court (even this
Court) on a question of state law is not binding on state
tribunals; and a decision of a state-law issue by a court of
appeals, whether right or wrong, does not have the kind of national
significance that is the typical predicate for the exercise of our
certiorari jurisdiction. *
The underlying substantive issue in this case generates what
Justice Holmes once described as a kind of "hydraulic pressure"
that motivates ad hoc decisionmaking.
Northern Securities
Co. v.
United States, 193 U. S. 197, 401 (1904)
(dissenting opinion). Even if the court of appeals has rendered an
incorrect decision, that is no reason for us to jettison the
traditional guides to our practice of certiorari review. The
doctrine of judicial restraint counsels the opposite course.
*The majority finds deference to the Court of Appeals
"counterindicative" because it reversed the District Court for the
District of Utah on a point of Utah law.
Ante, at 145. But
courts of appeals owe district courts no deference on state-law
questions; they review such matters
de novo. See
Salve
Regina College v.
Russell, 499 U. S. 225, 235-240
(1991) (rejecting reliance on the "local expertise" of the District
Court). The geography of the Circuit, see
ante, at 145, is
utterly irrelevant.
147
The majority counters with a pair of cases that supposedly show
the absence of a settled practice regarding review of state-law
questions. One of
those-Wichita Royalty Co. v.
City Nat.
Bank of Wichita Falls, 306 U. S. 103 (1939)-was
a diversity case decided in the wake of
Erie R. Co. v.
Tompkins, 304
U. S. 64 (1938). Just four weeks before we handed down
Erie, the Court of Appeals had disclaimed its obligation to
follow a controlling decision by the Texas Supreme Court (indeed,
one rendered in an earlier stage of the same proceedings) on a
matter of Texas commercial law. 306 U. S., at 106. The Court of
Appeals then denied rehearing on the theory that the Texas court
had changed its mind and now agreed with the former's view of the
law.
Ibid. Our decision to hear that case, which resulted in
our rejection of the lower court's conclusion, was plainly
motivated by a concern to give effect to
Erie's new
mandate.
That leaves the single example of
Steele v.
General
Mills, Inc., 329
U. S. 433 (1947), in which this Court granted certiorari
because the lower court's judgment "undermine[d] the transportation
policy of Texas."
Id., at 438. Decided nearly 50 years ago
and without successor,
Steele is the exception that proves
the rule.
However irregular such grants were in the past, they are now
virtually unheard of. Indeed, in 1980 we codified our already
longstanding practice by eliminating as a consideration for
deciding whether to review a case the fact that "a court of appeals
has ... decided an important state or territorial question in a way
in conflict with applicable state or territorial law." Compare this
Court's Rule 19(1)(b) (1970) with this Court's Rule 17.1 (1980).
That deletion-the
only deletion of an entire category of
cases-was intended to communicate our view that errors in the
application of state law are not a sound reason for granting
certiorari, except in the most extraordinary cases. Tellingly, the
majority does not cite a single example during the past 16 years in
which we
148
have departed from this reemphasized practice. This case should
not be the first.
Accordingly, I respectfully dissent from the decision to grant
the petition.
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