Void for vagueness

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Void for vagueness is a legal argument often made to invalidate laws that disfavor abortion. "Void for vagueness" generally applies only to criminal statutes, but it is often used to declare unconstitutional non-criminal, civil laws against abortion.

The U.S. Supreme Court held in an abortion decision that "the void-for-vagueness doctrine" requires that laws prohibit something only "with sufficient definiteness that ordinary people can understand what conduct is prohibited" while providing enough sufficient standards that it "does not encourage arbitrary and discriminatory enforcement." Gonzales v. Carhart, 550 U.S. 124, 149 (2007). The Gonzales court rejected the argument that the Partial Birth Abortion Act was somehow "void for vagueness."

"The degree of vagueness that the Constitution tolerates ... depends in part on the nature of the enactment," with greater tolerance for statutes imposing civil penalties and those tempered by scienter requirements. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).

But our laws need not have "mathematical certainty from our language." Hill v. Colorado, 530 U.S. 703, 733 (2000) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). Moreover, "speculation about possible vagueness in hypothetical situations not before the [c]ourt will not support a facial attack on a statute when it is surely valid 'in the vast majority of its intended applications.'" Hill, 530 U.S. at 733 (internal citation omitted). See also Am. Commc'ns Ass'n, C.I.O. v. Douds, 339 U.S. 382, 412 (1950).

If there is any reasonable interpretation to the statute, then it is constitutional. The Gonzales court held that "the elementary rule that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." Gonzales, 550 U.S. at 153.

In Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. Tex. 2012), the Fifth Circuit reversed a district court holding that a statutory phrase "the physician who is to perform the abortion" was somehow "unconstitutionally vague under some circumstances" concerning mandatory disclosures prior to performing an abortion. The Firth Circuit observed that:

Moreover, other cases have addressed identical appellations of the doctor, seemingly without legal challenge. See, e.g., Casey: "the physician who is to perform the abortion." Casey, 505 U.S. at 902. In Rounds, the South Dakota statute also imposed duties upon "the physician who is to perform the abortion," again without incurring a distinct legal challenge. Rounds, 530 F.3d at 726-27. See Brief of Appellants, 2005 WL 4902899; Brief of Appellees, 2005 WL 4902901.

Lakey, 667 F.3d at 581.