Back in April, CNN’s law site ran a story titled What the “Partial-Birth” Abortion Case is Really About. It talks about the distiction between a “facial challenge” and an “as applied challenge”. Basically, a facial challenge tries to show that a law is invalid under all possible applications — for example, a law that mandates each public school day begin with a sectarian prayer. in 1987’s United States v. Salerno, the court ruled that a facial challenge can succeed only if a law cannot operate constitutionally under any set of circumstances. If a law has a single constitutional application, it will survive the challenge. An as applied challenge works in the other direction. Such a chalenge agrees that the law has a constitutional application, but it can’t be applied to him or her. For example, a law that mandates each public school day begin with the pledge of allegiance. The right to speak includes the right not to speak, so a student can’t be forced to recite the pledge. The law would stand, with the provision that people could opt out.
The CNN article, using the example above, says that the court has refrained from using the Salerno ruling in abortion cases. More important than whether the Nebraska law stood or fell was whether the court quoted Salerno and used it in its decision. It turns out that it was not mentioned once, and only Thomas used the concept of facial challenges, and then only at the end of his opinion.
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