Opposition Brief — Janklow v. Planned Parenthood

No. 95-856

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IN THE Url 28

Supreme Court of the United States.

OCTOBER TERM, 1995

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WILLIAM J. JANKLOW, GOVERNOR, AND MARK W. BARNETT,

ATTORNEY GENERAL, IN THEIR OFFICIAL CAPACITIES,

Petitioners,

—_v.—_

PLANNED PARENTHOOD, SIOUX FALLS CLINIC, BUCK J.

WILLIAMS, M.D. AND WOMEN’S MEDICAL SERVICES, P.C..,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

COLLEEN K. CONNELL

THE ROGER BALDWIN

FOUNDATION OF

ACLU, INC.

203 N. LaSalle, #1405

Chicago, Illinois 60603

(312) 201-9740

CATHERINE WEISS

LOUISE MELLING

STEVEN SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, New York 10036

(212) 944-9800

DARA KLASSEL

Counsel of Record

ROGER EVANS

EVE W. PAUL

LEGAL ACTION FOR

REPRODUCTIVE RIGHTS

PLANNED PARENTHOOD

FEDERATION OF AMERICA

810 Seventh Avenue

New York, New York 10019

(212) 541-7800

TABLE OF CONTENTS

STATEMENT OF THE CASE ..............-+200.:

REASONS FOR DENYING THE WRIT .............

L THE STANDARD FOR FACIAL

CHALLENGES TO ABORTION

STATUTES, INCLUDING THE

TYPE OF STATUTE AT ISSUE

IN THIS CASE, IS

IL. THE QUESTION OF WHETHER A

JUDICIAL BYPASS IS REQUIRED

FOR ONE-PARENT NOTICE STA-

TUTES IS NOT A QUESTION OF

NATIONAL IMPORTANCE, NOR IS

THERE ANY CONFLICT IN THE

LOWER FEDERAL COURTS ON

ps, eee

Ill. THE UNDUE BURDEN TEST IS

THE SETTLED STANDARD OF

REVIEW FOR ABORTION

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IV. THE COURT OF APPEALS’

DECISION FAITHFULLY

FOLLOWS THIS COURT'S

UNDUE BURDEN ANALYSIS ........

CRPPCRMEIES oc ccc cn dee eee UN ee Mb Oe ceteveceous

TABLE OF AUTHORITIES

CASES

Akron Center for Reproductive Health v.

Slaby (Akron II), 854 F.2d 852 (6th Cir.

OR occ cecncebtusues babeestseneeea 5

A Woman's Choice East Side Women’s Clinic v.

Newman, 1995 WL 678345

’ (S.D. Ind. Nov. 9, 1995) .....cccccccccces 4

Barnes v. Moore, 970 F.2d 12 (Sth Cir.

WOUND. 0 0000s cue Mikes eis bckbe Oe +

Bellotti v. Baird, 443 U.S. 622 (1979) .......... 3, 6, 9

Causeway Medical Suite v. leyoub, 1995 WL 626201

(B.D. La. Oct. 24, 199B) on ccc cc ccccces 4, 5

City of Akron v. Akron Center for

Reproductive Health (Akron I), 462 U.S.

GEG GIFU oc cccclvecueweudesbes tens +

Epp. v. Kerrey, 964 F.2d 754 (8th Cir.

es eee 5

Frisby v. Schultz, 487 U.S. 474 (1988) ...........- 11

Hodgson v. Minnesota, 497 U.S. 417 (1990) ..... passim

Indiana Planned Parenthood Affiliates

Association v. Pearson, 716 F.2d 1127

(Wa Cle. 29GB) wi dbbctecccdewcsees $, 9

Ohio v. Akron Center for Reproductive

Health (Akron Il), 497 U.S. 502 (1990) ..... eS

Orr v. Knowles, No. CV 81-0-301

(D. Ne. Feb 20, 1991) .. 2... 2. eee eee eee 5

Planned Parenthood Association of Kansas

City v. Ashcroft, 462 U.S. 476 (1983) .......... 3

Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52 (1976) ........--465- 3

Planned Parenthood of Southeastern

Pennsylvania v. Casey, 112 S. Ct. 2791

1 Pre ee er ere passim

Roe v. Wade, 410 U.S. 113 (1973) ... 2... eee eee eee 2

United States v. Salerno, 481 U.S. 739

ew co ccc es 1, 3

Utah Women’s Clinic v. Leaviit, 844 F.

Supp. 1462 @. Utah 1994) ................ 4

Wicklund v. Salvagni, No. 93-92-BU-JFB (D.

ESS SST TET 5

Wicklund v. Salvagni, No. 93-92-BU-JFB (D

EEE 5

Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir.

TT EMIE chee debe cccccecceces 5, 9

STATUTES

Ark. Code Ann. § 20-16-801 ................... 6

24 Delaware Code 1781-1789 (1995) .............. 6

tcc cc ccc cee. 6

Kan. Stat. Ann. § 65-6705 (1993) ................ 6

Md. Health-Gen. Code Ann. § 20-103 (1994) ......... 6

Ne ccc cc cees 6

Nev. Rev. Stat. Ann. 442.255, 442.2555

EEE ES ee 6

Ohio Rev. Code Ann. 2929.12 (Baldwin 1994) ........ 6

EE EE ee 6

1

STATEMENT OF THE CASE

Respondents concur in Petitioners’ statement of the

procedural history of the case, but disagree with their description

of the ruling of the court of appeals.

The court of appeals first determined what standard of

review applies to facial challenges to abortion laws. It followed

this Court’s holding in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 112 $.Ct. 2791 (1992) that “[i}f the law

will operate as a substantial obstacle to a woman’s choice to

undergo an abortion ‘in a large fraction of the cases in which it

is relevant,...[iJt is an undue burden, and therefore invalid.’”

Appendix to Petition for Writ of Certiorari (App.) 12 (citing 112

S. Ct. at 2830). The court of appeals rejected Petitioners’

assertion that restrictions on abortion are valid on their face if they

have any conceivable constitutional application. App. 9-12 (citing

United States v. Salerno, 481 U.S. 739, 745 (1987)).

The court of appeals then applied the undue burden

analysis set out in Casey. It found that a requirement of parental

notification — whether to one or two parents — places a substantial

obstacle in the path of minors seeking abortions because it gives

parents an opportunity to obstruct their daughter’s choice. App.

16-18. Moreover, it held that the burden is not justified for

mature minors or for minors whose best interests would be served

by an abortion without parental involvement. It concluded that a

statute that fails to provide a bypass procedure enabling such

minors to avoid parental involvement is an undue burden and

unconstitutional. App. 18.

The court of appeals then considered whether the statute

provides an adequate “bypass” because it allows the physician to

dispense with notifying a parent if the minor declares herself to be

abused or neglected and the physician reports that abuse or neglect

to state authorities. The court found the exception insufficient

because it does not provide an opportunity for a minor to convince

a neutral decisionmaker that she is entitled to a bypass if she is

mature or if an abortion without parental notification would be in

2

her best interests. App. 21-24. The court of appeals cited record

evidence indicating that there are many “best interests" minors

who are neither abused nor neglected within the meaning of the

statute. App. 24.

The court of appeals also found that the statute fails to

provide an adequate alternative even for the abused and neglected

minors it purports to reach. It found, based on record evidence,

that minors are reluctant to report abuse and will turn to desperate

measures, including suicide, if pushed to a choice between

notifying an abusive parent and reporting that abuse. App. 25. It

also found that the statute fails to protect the confidentiality of

minors who report abuse because of numerous ways in which a

minor’s abortion may be revealed in the course of a juvenile court

child abuse proceeding. The court concluded that “Planned

Parenthood has shown that a large fraction of minors seeking pre-

viability abortions would be unduly burdened by South Dakota's

parental notice statute, despite its abuse exception." App. 25.

REASONS FOR DENYING THE WRIT

I. THE STANDARD FOR FACIAL CHALLENGES TO

ABORTION STATUTES, INCLUDING THE TYPE OF

STATUTE AT ISSUE IN THIS CASE, IS SETTLED.

For twenty-four years, this Court has consistently

adjudicated facial challenges to abortion restrictions, and declared

those restrictions unconstitutional, when they imposed an

impermissible burden “in a large fraction of the cases in which

(they were] relevant. . . .” Planned Parenthood v. Casey, 112 S.

Ct. at 2830. See, e.g., Roe v. Wade, 410 ns ol (1973)

striking law banning all abortions on its face it was

pers ee as to pre-viability abortions and abortions

necessary for the health of the woman); City of Akron v. Akron

Center for Reproductive Health (Akron I), 462 U.S. 416 (1983)

(striking hospitalization requirement as over-broad as applied to

most second-trimester abortions). This Court never has required

a showing that there are no circumstances in which the restriction

could be constitutionally applied. Of United States v. Salerno,

481 U.S. at 745.'

This approach and the consistency of its application are

particularly clear in cases such as the one at issue here, involving

requirements of parental involvement in a minor’s decision about

abortion. This Court has invalidated such statutes on faciai

challenges despite explicit recognition that the statutes could be

applied constitutionally to immature minors who would benefit

from their operation. Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52, 75 (1976). Bellotti v. Baird, 443 U.S.

622, 648 (1979) Akron I, 462 U.S. at 439-40. Hodgson v.

Minnesota, 497 U.S. 417, 461 (1990) (O’Connor, J. concurring).

This Court never has required the challenging party to demonstrate

that the statute could not be constitutionally applied to any minor.

The reasons for the rejection of the Salerno approach are

obvious. Forcing each minor to mount a constitutional challenge

to the law “as applied” to her would be a practical impossibility.

The delays inherent in this approach would lead to evaporation of

the very right the minor sought to assert. This Court therefore

has ruled that state laws requiring the consent of or notice to a

parent must contain a procedure (bypass) whereby the

constitutional and unconstitutional applications of such laws are

sorted out before the minor’s opportunity to obtain an abortion is

lost. Bellotti v. Baird, 443 U.S. 622 (striking a parental consent

law that failed to make adequate exceptions for mature minors and

those for whom an abortion would be in their best interests);

Akron I, 462 U.S. at 440; Planned Parenthood Association of

Kansas City v. Ashcroft, 462 U.S. 476, 491-94 (1983); Hodgson

' Although this Court has cited Salerno in some reproductive

privacy cases, it was for the proposition that federal courts should

not strike down a statute merely because it may have some

unconstitutional applications, as for example a judicial bypass that

could, in a worst case scenario, take a long time to complete.

Ohio v. Akron Center for Reproductive Health (Akron Il), 497

U.S. 502, 514 (1990). This is a far cry, however, from upholding

a Statute merely because it has some constitutional applications.

4

v. Minnesota, 497 U.S. 417; Casey, 112 S. Ct. at 2832

(reaffirming that parental consent laws must contain a judicial

bypass).

This Court’s consistent rulings on abortion in general and

minors in particular reject Salerno. That case never has been and

should not be applied to reject facial challenges to laws requiring

parental involvement in minors’ abortions merely because such

laws may have some constitutional applications. The federal

courts are not confused about the appropriate standards and

Petitioners fail to demonstrate a reason to grant certiorari on this

issue.”

Il. THE QUESTION OF WHETHER A JUDICIAL BYPASS

IS REQUIRED FOR ONE-PARENT NOTICE

STATUTES IS NOT A QUESTION OF NATIONAL

IMPORTANCE, NOR IS THERE ANY CONFLICT IN

THE LOWER FEDERAL COURTS ON THIS

SUBJECT.

This Court consistently has required that parental notice or

consent laws provide a minor an opportunity to convince an

independent decisionmaker that she should be exempted from the

? The federal courts consistently have applied Casey's “large

fraction" test. A Woman's Choice East Side Women’s Clinic v.

Newman, 1995 WL 678345 (S.D. Ind. Nov. 9, 1995); Utah

Women’s Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994);

Planned Parenthood v. Miller, (App.); See also, Casey v. Planned

Parenthood, 14 F.3d 848, 863 n.21 (3d Cir. 1994) (on remand)

(dicta). Only the fifth circuit continues to cite Salerno as the

applicable standard. Barnes v. Moore, 970 F.2d 12, 14 & n.2

(Sth Cir. 1992), cert. denied, 113 S. Ct. 656 (1992). At least one

district court in that circuit, however, continues to recognize that,

despite the literal language of Salerno, a viable bypass is necessary

to sort out the constitutional and unconstitutional applications of

parental involvement statutes. Causeway Medical Suite v. leyoub,

1995 WL 626201 (E.D. La. Oct. 24, 1995).

5

law’s requirement if she is mature or if an abortion would be in

her best interests. This Court unambiguously reaffirmed these

holdings in Casey, upholding a parental consent law because it

contained such an alternative. 112 S. Ct. at 2832. See also

Hodgson 497 U.S. at 417-19 (striking a requirement of notification

to two parents because of the lack of a bypass).’

Every lower court to consider the issue has held that this

Court’s decisions on parental involvement mandate that a bypass

is a necessary adjunct to a parental notification law, whether it

requires notice to one or both parents. Planned Parenthood v.

Miller, App.; Zbaraz v. Hartigan, 763 F.2d 1532, 1539 (7th Cir.

1985) (holding requirement of a bypass applies to both notice and

consent laws), aff'd by an equally divided court, 484 U.S. 172

(1987); Indiana Planned Parenthood Affiliates Association v.

Pearson, 716 F.2d 1127 (7th Cir. 1983) (striking one-parent

notification law for lack of a sufficient judicial bypass); Akron

Center for Reproductive Health v. Slaby (Akron II), 854 F .2d 852,

860-61 (6th Cir. 1988), rev'd on other grounds, 497 U.S. 502

(1990); Orr v. Knowles, slip op. No. CV 81-0-301 (D. Ne. Feb.

20, 1991) (Court of Appeals Joint Appendix at 73), appeal

dismissed as moot sub nom. Epp. v. Kerrey, 964 F.2d 754 (8th

Cir. 1992) (refusing to vacate injunction against one-parent

notification law that lacked an adequate judicial bypass); Wicklund

v. Salvagni, No. 93-92-BU-JFB slip op. at 4-5 (D. Mt. Sept. 27,

1995) (striking as unconstitutional one-parent notification law that

lacked a sufficient judicial bypass) (Appendix to this Brief);

Wicklund v. Salvagni, No. 93-92-BU-JFB (D. Mt. Dec. 21, 1993)

(striking as unconstitutional parental notification law that locked

a judicial bypass) (Court of Appeals Joint Appendix at 516). See

also, Causeway Medical Suite v. leyoub, 1195 WL 626201 (E.D.

La. Oct. 24, 1995) (striking parental consent law because judge

hearing bypass petition could notify a minor’s parent).

> Hodgson makes clear that petitioners are incorrect in stating

that this Court has never decided that a notice statute requires a

bypass. Petition at 8 and 12.

6

Moreover, with the solitary exception of the State of South

Dakota, every state that has enacted a one-parent notification law

in the past fifteen years has included a judicial or other waiver

option.‘ Petitioners’ desire to make a test case out of this issue

does not bootstrap it into one of national importance warranting

this Court’s review.

Equally unpersuasive is Petitioners’ claim that this case

is of national importance because it involves the “legal nature of

the parent-child relationship” and the state’s ability to enhance

that relationship. Petition at 11. This Court has always been

cognizant of parental interests in deciding the validity of parental

involvement laws. Bellotti, 443 U.S. at 637-38; Hodgson, 497

U.S. at 446-47. Nonetheless, the Court has consistently struck

down laws that fail to provide an alternative to parental

involvement for mature or best-interest minors because the

“justification for any rule requiring parental involvement in the

abortion decision rests entirely on the best interest of the child.”

Hodgson, 497 U.S. at 454, (citing Bellotti, 443 U.S. at 651).

In summary, Petitioners fail to justify their request that

this Court grant certiorari to decide what weight should be

afforded parents’ interests in their daughters’ abortion decisions.

This issue was resolved long ago.

Ill. THE UNDUE BURDEN TEST IS THE SETTLED

STANDARD OF REVIEW FOR ABORTION

LEGISLATION.

In Planned Parenthood v. Casey, 112 S. Ct. 2791, this

* Ark. Code Ann. § 20-16-801 to 808 (1994); 24 Delaware

Code 1781-1789 (1995); Ga. Code Ann. § 15-11-110 to 118

(1994); 1995 Ill. ALS 18 (1995); Kan. Stat. Ann. § 65-6705

(1993); Md. Health-Gen. Code Ann. § 20-103 (1994); Neb. Rev.

Stat. § 71-6901 to 6909 (1994); Nev. Rev. Stat. Ann 442.255,

442.2555 (Michie 1993); Ohio Rev. Code Ann. 2929.12 (Baldwin

1994); W. Va. Code 16-2F-1 to 9 (1995).

7

Court announced that henceforth abortion laws would be judged

by the “undue burden” standard. The Casey Court made clear that

its decision was intended as definitive, clarifying and setting aside

any prior inconsistent views on the "standard of review" question.

Id. at 2820. Moreover, Casey specifically applied the “undue

burden” standard to parental involvement laws. Jd. at 2821, 2832.

Contrary to Petitioners’ argument, the majority of the

Court in Hodgson v. Minnesota did not state that the rational basis

standard should be used to test the constitutionality of laws

requiring parental notice of a minor’s abortion decision. Petition

at 11. Rather, the Court ruled that a Minnesota iaw that lacked a

judicial bypass did not even pass the rational basis test, making it

unnecessary for the Court to apply any higher standard of review.

497 U.S. at 450.

Petitioners have not identified a single court that has

adopted the “rational relationship" test for abortion laws affecting

minors or even considered doing so. There is no lack of clarity

on this subject, no conflict between the decision of the court below

and prior decisions of this Court, and therefore no reason to grant

certiorari on this issue.

IV. THE COURT OF APPEALS’ DECISION FAITH-

FULLY FOLLOWS THIS COURT’S UNDUE

BURDEN ANALYSIS.

Petitioners argue that the court of appeals misapplied the

undue burden standard to the facts of this case. However, “a writ

of certiorari is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a properly

stated rule of law." Supreme Court Rule 10. Petitioners’ claims

amount to no more than that and, therefore, even if correct, do not

merit review by this Court. Nevertheless, as shown below, the

court of appeals correctly applied the undue burden analysis laid

out in Casey and Petitioners’ claims of error are incorrect.

According to Casey a court must analyze an abortion

Statute to determine whether, as a practical matter, it poses a

substantial obstacle to effectuation of the abortion decision for a

large fraction of the women it affects. For example, in Casey,

this Court struck down a husband notification requirement

because, although it did not give husbands a legal veto power over

their wives’ abortions, as a practical matter it would deter a

significant number of women from seeking abortions out of fear

for their own safety as well as that of their children. 112 S. Ct.

at 2829-30.

The court of appeals applied exactly this analysis, finding

that the South Dakota one-parent notice statute, as a practical

matter, gave parents an opportunity to obstruct their daughters’

access. to abortion. App. at 17. Moreover, it cited record

evidence that a requirement of parental notification could work

substantial harm in already disturbed families, lead to abuse of

minors, deter some minors from seeking abortions, and even lead

some to suicide. App. 23-25. It concluded that in a large fraction

of cases minors would be unduly burdened by a one-parent notice

requirement without a bypass. /d.

Petitioners’ various claims as to error must fail in light of

the foregoing.

> Petitioners are wrong in asserting that the finding of an

undue burden, and the consequent need for a judicial bypass, is

somehow dependent on whether a statute creates a legally binding

"veto power” over a minor’s abortion. Petition at 12-13. In

Hodgson, this Court struck down a two-parent notification statute,

which did not provide for such a veto, because it failed to provide

for a judicial bypass. 497 U.S. at 450 and 459-60 (O’Connor, J.,

concurring). See also Bellotti (striking a parental consent law

because it failed to allow a minor to seek a judicial bypass without

notifying her parent).

> A finding of an undue burden also does not depend on

whether a statute requires notice to one or both parents. Petition

at 13-15. Applying Casey’s functional test, the court of appeals

found that both one- and two-parent notice laws create obstacles

in the path of a minor by giving her parents an opportunity to

9

block her access to abortion services; both create the opportunity

for retaliation, abuse, and disruption of the family. App. 14, 18

and 24. These obstacles amount to an undue burden, regardless

of whether one or both parents are to be notified. App. 18. °

> Petitioners incorrectly fault the court of appeals for

holding that mature minors have a right to avoid parental

notification. Petition at 15-17. The court of appeals’ ruling on

this subject comports with every ruling of this Court and of

numerous lower federal courts that mature minors are entitled

completely to avoid parental involvement. Bellotti v. Baird, 443

U.S. at 643, Akron II, 497 U.S. at 522 (Stevens, J., concurring in

part and concurring in the judgment), Hodgson v. Minnesota, 497

U.S. at 461 (O’Connor J., concurring). See, e.g. Zbaraz v.

Hartigan, 763 F.2d at 1539; Indiana Planned Parenthood

Affiliates v. Pearson, 716 F.2d at 1134; Orr v. Knowles, slip op.

(Court of Appeals Joint Appendix at 73).

» Contrary to Petitioners’ assertion, Petition at 17-18, the

court of appeals was correct in holding that the South Dakota

statute fails to provide a sound alternative for abused minors. In

* Moreover, the court of appeals made the specific finding that

“roughly eighteen percent of minors live in single parent homes;

many of them, as a practical matter have only one parent to

notify." App. 24 n.10. The court cited these data to show the

harms minors face under a one-parent notice statute when the

custodial parent is abusive or nonsupportive and the minor has no

other parent to whom she can turn. In criticizing the court of

appeals’ reliance on these data, Petitioners cite Hodgson for the

proposition that evidence of harm to minors living in single-parent

homes is relevant only when the statute at issue requires notice to

two parents. Petition at 14. Hodgson does not support this

proposition. Nothing in Hodgson forecloses a finding that a one-

parent notice statute harms minors from single-parent homes. In

fact, Justice O’Connor held in Hodgson that the judicial bypass

was necessary to provide an option for the minor who could not

notify either parent. 497 U.S. at 461 (O’Connor, J., concurring).

10

Casey this Court recognized that:

Secrecy typically shrouds abusive families.

Family members are instructed not to tell anyone,

especially police or doctors, about the abuse and

violence. Battering husbands often threaten their

wives or her children with further abuse if she

tells an outsider of the violence and tells her that

nobody will believe her.

112 S. Ct. 2827. These conclusions as to the constitutional

inadequacy of husband notice echoed the conclusions in Hodgson

about the harms of a parental notification requirement without a

judicial bypass. In Hodgson v. Minnesota, Justice O'Connor

specifically ruled that the statute’s exception for reported abuse

was not a viable alternative, in part, because of the reluctance of

minors to report abuse. 497 U.S. at 460 (O’Connor J.,

concurring, citing Casey at 440 n.26).

The South Dakota exception is no more viable because, as

found by the court below, South Dakota minors will undertake

drastic measures to avoid revealing abuse. App. 25. Petitioners’

dispute with these factual findings does not warrant a grant of

certiorari. Supreme Court Rule 10. °

® Petitioners argue that this Court’s approval of a bypass for

best-interests minors means the minor will have to reveal the abuse

anyway in order to obtain a waiver. Petition at 18. So, according

to the Petitioners, they are providing minors with a less oppressive

option by letting them reveal abuse to the physician. This Court

however, never has approved a bypass statute that requires a

minor to reveal abuse in order to obtain a waiver of a parental

consent or notice requirement. A minor unwilling to reveal abuse

could demonstrate that she is mature or that an abortion without

parental involvement is in her best interests for some other reason.

In contrast, an abused minor in South Dakota seeking an abortion

must choose between revealing the abuse and informing an abusive

parent of her intention to have an abortion. This is the very

11

» Contrary to Petitioners’ argument, Petition at 19-20, the

court of appeals correctly found that the ""bypass’ for abused and

neglected minors falls short in protecting the confidentiality of the

minor’s decision to have an abortion.” App. 20. Although the

South Dakota statute instructs agencies that investigate and

prosecute child abuse cases not to reveal to parents that their

daughter sought an abortion, the statute fails to extend this

exhortation to juvenile courts that hear child abuse cases. The

South Dakota discovery statutes governing abuse and neglect

proceedings in juvenile court provide numerous opportunities for

information about the minors’ abortion to be revealed in the course

of those proceedings. App. 21 and statutes cited therein.

Petitioners are mistaken in asserting that juvenile courts

would have to disregard the discovery mandates of these statutes

in favor of the later-enacted abortion law. The abortion law does

not apply to juvenile court proceedings; thus, it does not supersede

the discovery statutes. The court of appeals’ judgment on this

issue of state law is entitled to deference by this Court, Frisby v.

Schultz, 487 U.S. 474, 482 (1988), and does not merit certiorari.

choice this Court has disapproved. Hodgson, 497 U.S. at 439 and

n.26.

12

CONCLUSION

The standard to be applied to facial challenges to abortion

laws is well settled. Petitioners raise no federal questions of

national importance to resolve in this case and all aspects of the

court of appeals’ decision are fully consistent with the decisions of

this Court. The petition for certiorari should be denied.

Respectfully submitted,

Dara Klassel

(Counsel of Record)

Roger Evans

Eve W. Paul

Legal Action for Reproductive

Rights

Planned Parenthood Federation of

America

810 Seventh Avenue

New York, New York 10019

(212) 541-7800

Colleen K. Connell

The Roger Baldwin Foundation of

ACLU, Inc.

203 N. LaSalle, #1405

Chicago, Illinois 60601

(312) 201-9740

Catherine Weiss

Louise Melling

Steven Shapiro

American Civil Liberties Union

Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

December 28, 1995

ee le ratte Nelly A ca

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

SUSAN WICKLUND, M.D.., et al.,

Plaintiffs, No. CV 93-92-BU-JFB

MEMORANDUM AND

ORDER

MICHAEL SALVAGNI, in his

individual capacity and

in his official capacity

as Gallatin County Attorney

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Defendant.

Pending before the Court are cross-motions for Summary

Judgment by Plaintiffs and Defendant. To expedite the decision,

and with the parties’ concurrence, the matters raised are deemed

submitted without the need for oral argument. After considering

the briefs and supporting documents submitted, the Court rules as

follows.

This action was originally filed on November 23, 1993.

The Plaintiffs sought an order enjoining Defendant from enforcing

from enforcing Mont. Code Ann. § 50-20-107(1)(b), which

required parental notification before an abortion could be

performed on a minor. This Court entered a Temporary

Restraining Order on November 30, 1993 enjoining Defendant

from enforcing Mont. Code Ann. § 50-20-107(1)(b). The

temporary Restraining Order remained in effect until the Court

entered a final judgment on December 21, 1993. The Judgment

based on the parties’ stipulation, permanently enjoined

enforcement of Mont. Code Ann. § 50-20-107(1)(b) because it was

unconstitutional. On July 17, 1995, this Court granted Plaintiffs’

parental notification provision that was signed

Montana Governor Marc Racicot on April 15, 1995.’ The law is

scheduled to go into effect on October 1, 1995.

The Plaintiffs and Defendant agree that it is a matter of

law to be decided by the Court as to whether HB 482 is

constitutional. The law at issue requires parental notice for

minors and incompetent persons seeking abortions.

HB 482, § 4.2, An “emancipated minor” is defined as “a person

under 18 years of age who is or has been married or who has been

granted an order of limited emancipation by a court as provided

in 41-3-406.” HB 482 § 3(3). Section 9 provides for judicial

waiver of the notice requirement and is at the heart of the motions

presently pending. Section 9 provides that a minor “may petition

the youth court for a waiver of the notice requirement and may

participate in the proceedings on the person’s own behalf.” The

petition may be granted by the youth court and the notice

requirement waived pursuant to four different alternatives. These

include:

(1) “If the court fails to rule within 48 hours and time is

' The law is entitled “AN ACT REQUIRING PARENTAL

NOTIFICATION PRIOR TO AN ABORTION FOR A MINOR

OR INCOMPETENT PERSON; PROVIDING A JUDICIAL

WAIVER OF NOTIFICATION; PROVIDING PENALTIES;

AMENDING SECTION 41-1-405, MONT. CODE ANN.; AND

REPEALING SECTION 50-20-107, MONT. CODE. ANN.” A

copy of the law is attached as an Appendix to this ruling.

? Section 4 provides: Notice of parent required. A physician may

not perform an abortion upon a minor or an incompetent person

unless the physician has given at least 48 hours actual notice to

one parent or to the legal guardian of the pregnant minor or

incompetent person of the physicians’s intention to perform the

abortion.

not extended.” § 9(3).

(2) If the court finds that petitioner is “sufficiently mature

to decide whether to have an abortion.” § 9(4).

(3) If the court finds that “there is evidence of a pattern

of physical, sexual, or emotional abuse of the petitioner by one or

both parents, a guardian, or a custodian.” § 9(5)(a).

(4) If the Court finds that “the notification of a parent or

(ae pena mtg whatnene cme

).

Plaintiffs claim that Section 9 of HB 482 is

unconstitutional for four reasons.’ First, because a minor must

petition the youth court for a waiver of notice, the Plaintiffs argue

that Mont. Code. Ann. § 41-5-500(1), which requires service of

a summons on a petitioner’s parents after a petition is filed in

youth court, effectively notifies the minor’s parents of the judicial

waiver procedure.‘ Second, Plaintiffs argue that the provision

* The Plaintiffs assert in a footnote that HB 482 is also invalid

because section 7, which provides that “public assistance benefits

may not be used [by an emancipated minor] to obtain an

abortion,” violates Title XIX and the Hyde Amendment. See, Ps’

Br. In Supp. of Pls. Mot. for Summ. J., p.6 n.3 (citing Planned

Parenthood of Missoula Inc. v. Blouke, 858 F.Supp. 137 (D.

Mont. 1994)). The Court will not address this issue because it

was not properly raised and briefed. Plaintiff also initially

challenged the lack of an expedited appeals procedure for the

judicial bypass proceedings. However, in the interim the Montana

Supreme Court has adopted such a procedure and Plaintiffs’

challenge to the adequacy of the bypass provision on that basis is

therefore moot.

* Mont. Code Ann. § 41-5-502. Summons. (1) After a petition

has been filed, summons must be served directly to: (a) the youth;

(b) his parent or parents having actual custody of the youth or his

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allowing for waiver if notification of the parents would not be in

the best interests of the petitioner, improperly narrows the

consideration of what is in the minor’s overall “best interests."

Glick v. McKay, 937 F.2d 434, 438 (9th Cir. 1991). Third,

Plaintiffs argue that if the minor seeks a waiver of notification

based on abuse, constructive notice to the minor’s parents will

occur because the youth court will initiate an investigation of the

home pursuant to Mont. Code Ann. § 41-3-202. Finally,

Plaintiffs argue that the statute violates the Equal Protection Clause

of the U.S. Constitution. Defendant has moved for summary

judgment on the first, third and fourth claims. Plaintiffs have filed

a cross-motion for summary judgment on the first, second and

third grounds. Because the Court decides the motions in favor of

Plaintiffs on the basis of the second ground, concerning the scope

of the “best interests" inquiry, it will not address the remaining

grounds for summary judgement asserted by either party.

A. Best Interests Inquiry

One ground for summary judgment raised by Plaintiffs

concerns the scope of the "best interests" inquiry to be conducted

by the youth court, in determining whether judicial bypass of the

notice requirement is appropriate. The United States Supreme

Court has stated that in judicial bypass proceedings in the context

of a parental consent statute,

A pregnant minor is entitled to show the court

either: (1) that she is mature enough and well

enough informed to make her abortion decision, in

consultation with her physician, independently of

her parents’ wishes; or (2) that even if she is not

able to make this decision independently, the

desired abortion would be in her best interests.

Bellotti v. Baird, 443 U.S. 622, 640-642 (1979); see also Ohio v.

guardian or custodian, as the case may be; and (c) other person as

the court may direct.

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Akron Center for Reproductive Health ("Akron Two"), 497 U.S.

502, 511 (1990). It is also well established that because of the

greater intrusiveness of parental consent requirements, a notice-

bypass provision that meets the requirements of a consent-bypass

provision passes constitutional muster. Akron II, 497 U.S. at 511.

Plaintiffs do not contend that the Montana parental notification

Statute does not meet the first requirement, and the Court

specifically finds that it does. However, the “best interests"

inquiry under Bellotti requires that in judicial bypass proceedings,

a minor be given a chance to show that the abortion would be in

her best interests. This is noticeably different than the inquiry

under the Montana statute, which waives notification only if the

Court first finds that notification would not be in the minor’s best

interests. The Eleventh Circuit Court of Appeals has noted the

connection between these two standards, but did not believe that

the difference was “constitutionally significant." See Planned

Parenthood Ass'n of Atlanta v. Miller, 934 F.2d 1462, 1477 n.21

(11th Cir. 1991). However, the Ninth Circuit Court of Appeals,

which controls this Court’s decisionmaking, has a different view.

In Glick v. McKay, 937 F.2d 434 (9th Cir. 1991), the

Ninth Circuit Court of Appeals applied the Bellotti standards for

a parental consent judicial bypass statute to a notification statute,

and found that it did not pass constitutional muster because the

statute required an inquiry into whether notification, not abortion,

was in the minor’s best interests. Id. at 439. The Glick court

"[ilf, all things considered, the court determines

that an abortion is in the minor’s best interests,

she is entitled to court authorization without any

parental involvement." Bellotti, 443 U.S. at 648,

99 S. Ct. at 3050 (emphasis added). Therefore,

the Nevada statute impermissibly narrows the

Bellotti “best interests" criterion, and is

Id. However, the Glick Court did not expressly hold that parental

consent bypass standards apply in a notice context; instead, the

A

Statute was found unconstitutional on other grounds and the

Bellotti problem "only [added] to the infirmity." Id. at 442.

In the context of a parental consent statute, the Court

would have no problem applying Glick to determine that a judicial

bypass provision focusing the “best interests" inquiry upon the

narrow issue of notification, rather than the broader issue of

whether an abortion is in the minor’s best interests, is

unconstitutional. However, the present case involves a parental

notification statute, not a parental consent statute. Neither the

U.S. Supreme Court nor the Ninth Circuit Court of Appeals have

expressly decided what, if any, are the requirements of a judicial

bypass procedure in a parental notice, as opposed to a parental

consent, statute. This Court looks to other circuits for guidance

on the issue.

The Eighth Circuit Court of Appeals has addressed the

same issue, and is the only one to have done so in a fairly

thorough manner. See Planned Parenthood, Sioux Falls Clinic, v.

Miller F.3d __, 1995 WL 513959 (8th Cir. (S.D. 1995)).

In Miller, t the court began by noting that "the Supreme Court has

established that the State may require parental notice for immature

minors who cannot show that an abortion would be in their best

interests." Id., 1995 WL 513959 at *5 (citing H.L. v. Matheson,

450 U.S. 398, 409 (1981)). However, “the Supreme Court has

yet to decide whether a mature or "best interests" minor is unduly

burdened when a State requires her physician to notify one of her

parents before performing the abortion." Id. To resolve that

issue, the Eighth Circuit considered the reasons why “requiring

parental notice—or, for that matter parental consent-— is not an

undue burden upon immature minors who cannot show that an

abortion would be in their best interests." Id. The answer, in the

view of the Eighth Circuit, “is that they are minors, and States

may impose requirements on immature minors that it may not

impose on adults." Id. at *6 (citations omitted).

When dealing with a mature minor, the state’s attempt to

give parents power over the abortion decision is on a collision

course with the Constitution. Id. (citing Bellotti, 443 U.S. at 643-

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44 & n.23). “By showing that they are capable of mature,

informed consideration, such minors establish that the State has no

legitimate reason for imposing a restriction on their liberty

interests that it could not impose on adult women." Id.

In the case of an immature minor whose best interests

would be served by having an abortion, “the justification for any

rule requiring parental involvement in the abortion decision rests

entirely on the best interests of the child." Id. (quoting Hodgson

v. Minnesota, 497 U.S. 417, 454 (1990)). “But if the minor can

show that an abortion without notification would be in her best

interest, then the State has no further reason for requiring such

notice.” Miller, 1995 WL at *5.

For both mature and “best interest" minors, then,

the State has no legitimate interest in imposing a

parental notice requirement with the purpose or

effect of placing a substantial obstacle in their

paths when they seek pre-viability abortions. For

this reason, we hold that the State may not impose

a parental-notice requirement without also

providing a confidential, expeditious mechanism

by which mature and “best interest" minors can

avoid it. In short, parental notice provisions, like

parental-consent provisions, are unconstitutional

without a "Bellotti-type bypass."

Id. (emphasis added).

This Court agrees with the thoughtful reasoning of the

Eighth Circuit, and further believes that the Ninth Circuit, having

held in Glick that a notice-bypass provision must meet

constitutional scrutiny, see Glick, 937 F.2d at 442, would also

apply the Bellotti standards to determine the scope of the "best

interests" inquiry required. See also Zbaraz v. Hartigan, 763 F.2d

1532, 1539 (7th Cir. 1985), aff'd, 484 U.S. 171 (1988), (parental

notice statute could only withstand constitutional scrutiny if it

provided a a ee en ane Soe

Indiana Planned Parenthood Affiliates Ass’n. v. Pearson,

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1127 (7th Cir. 1983)). After all, the failure of the Nevada statute

to meet the Bellotti standards was one of the two reasons given for

holding the parental notice statute unconstitutional. Glick, 937

F.2d at 442. Under Bellotti, and Glick,’ a minor must have an

Opportunity to show not just that notification is not in her best

interests, but that having an abortion is in her best interests. The

standards, impermissibly narrows the scope of the “best interests"

inquiry, and places an undue burden upon the right of a minor

who is able to show that abortion is in her best interests, to obtain

an abortion without parental involvement. It is therefore

B. Arnott’s Renewed Motion to Intervene

Finally, there is a “Renewed Motion to Intervene as

Defendant by Representative Arnott." This Motion was filed on

September 14, 1995, three days after the Court denied

Representative Arnott’s original Motion to Intervene.

Representative Arnott argues that she should have the opportunity

to intervene because her interests are not adequately represented

by the Attorney General. She bases this argument on the fact that

the Attorney General has not filed a motion to sever Section 12 of

HB 482, from the rest of the bill. However, the Defendant has

_ Detentens expats Get SEs 10 00 lenges geet ten, after Planned

2791 (1992). Sewer, sothing in Caney alters the Court’s

reasoning above. To the contrary, Casey reaffirms that the State

may not unduly burden a minor’s access to abortion. Casey, 112

S. Ct. at 2831. As noted above, the imposition of a notification

requirement without an adequate Bellotti-type bypass provision,

would constitute an undue burden upon the right of a mature or

“best interests" minor to have an abortion.

* Section 12 provides: RIGHT OF INTERVENTION.

PURSUANT TO RULE 24(A), MONTANA RULES OF CIVIL

PROCEDURE, A LEGISLATOR HAS THE RIGHT TO

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stated that section 12 is severable and that the motions at issue

only address the constitutionality of sections 1-10 of HB 482. See

Com. Rep. Br. in Supp. of Def’s Mot. for Summ. J., p.16 n.5.

The Court concludes that this is not a proper basis for Arnott to

intervene and further concludes that any potential interests of

Arnott are, as previously stated in the Memorandum and Order of

September 11, 1995, adequately represented. Wherefore,

IT IS ORDERED that Plaintiffs’ Motion for Summary

Judgment is granted and Defendants’ Motion for Summary

Judgment is denied. Sections 1 through 10 of Montana HB 482

are hereby declared unconstitutional, and Defendant is permanently

enjoined from enforcing those sections.

IT IS FURTHER ORDERED that the Representative

Arnott’s Renewed Motion to Intervene is denied.

The Clerk is directed to enter Judgment accordingly and

notify counsel of record and Mr. Timothy J. Whalen of this

Order.

DONE AND DATED this 27th day of September,

1995.

James F. Battin

Senior U.S. District Judge

INTERVENE IN ANY CASE IN WHICH THE LEGALITY OF

TITLE 50, CHAPTER 20, IS CHALLENGED.