Stranger in a strange land: the use of overbreadth in abortion jurisprudence

Plaintiffs seeking to avoid prosecution under an allegedly unconstitutional statute can ask a court to do one of two things: award facial relief, in which case any enforcement of the offending statutory provision is enjoined, or award as-applied relief, in which case enforcement of the provision against the plaintiff is enjoined, but officials may attempt to apply the statute to others. As-applied relief might also take the form of partial facial invalidation: The provision may not be applied to others similarly situated to the plaintiff. In United States v. Salerno, the Court ruled that judges should only provide total facial invalidation if there is "no set of circumstances" under which the statute could be applied consistent with the Constitution. This general rule, however, has had a historical exception for First Amendment jurisprudence, known as the overbreadth doctrine, and more recently Planned Parenthood v. Casey extended a similar exception to abortion jurisprudence. Most literature has been supportive of this extension, and some have suggested replacing the Salerno rule with the Casey rule as a general matter. This Note argues that the reasons given for the Casey exception are unpersuasive, that Salerno as a matter of history and doctrine is the correct rule to apply to facial challenges, and for that reason that Salerno should remain the general rule and Casey's "large fraction" test should be eliminated.