LEAVITT, GOVERNOR OF UTAH, ET AL. v. JANE L. ET AL - 518 U.S. 137 (1996)
OCTOBER TERM, 1995
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.
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).
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;