Janklow v. Planned Parenthood, Sioux Falls Clinic

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In Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174 (1996), the U.S. Supreme Court denied certiorari with three Justices (one short of the minimum required to grant cert.) dissenting. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, wrote about the double standard used by courts in considering abortion cases, where the Salerno standard was being ignored in order to invalidate abortion laws:

The [Eighth Circuit below] 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, 121 L. Ed. 2d 582, 113 S. Ct. 656 (1992), the Fifth Circuit rejected a facial challenge to the Mississippi Informed Consent to Abortion Act. In the process, it said that "because 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 [in order to grant cert.] The Court of Appeals explained that "the 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.
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