Opposition Brief — Lambert v. Wicklund

No. 96-858

IN THE

Supreme Court of the Untted-States-

OCTOBER TERM, 1996

>_>

MICHAEL SALVAGNI, in his official capacity as Gallatin County Attorney,

Petitioner,

SUSAN WICKLUND, M.D.; JAMES H. ARMSTRONG, M.D.; LINDSAY

RICHARDS, M.D.; SUSAN CAHILL, P.A.; DOUGLAS WEBBER, M.D.;

BETH E. THOMPSON, M.D.; MARY STRANAHAN, D.O.; and MARK

MILES, M.D., on behalf of themselves and their patients throughout

Montana, the surrounding states and Canada,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

BRUCE MEASURE SIMON HELLER

Law Offices of Ambrose Measure Counsel of Record

P.O. Box 918 JANET BENSHOOF

Kalispell, Montana 59903-0918 KATHRYN KOLBERT

(406) 752-6273 The Center for Reproductive

Law & Policy

120 Wall Street, | 8th Floor

New York, New York 10005

(212) 514-5534

Counsel for Respondents

QUESTION PRESENTED

Whether a statute requiring parental notification for a

minor seeking an abortion is invalid if its judicial bypass

mechanism does not allow an immature minor to obtain a

waiver of parental notification even if the abortion is in her

best interests, but only allows such a waiver in the more

limited circumstances where parental notification is not in

her best interests?

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....----- +--+ 00% i

TABLE OF AUTHORITIES .......--+-+++55: ili

COUNTERSTATEMENT OF THE CASE .......-.. 1

REASONS FOR DENYING THE WRIT .....-...- aoe

I. THE DECISION OF THE COURT OF APPEALS

IS CONSISTENT WITH THIS COURT’S

DECISIONS AND WITH THE REASONING

UNDERLYING THEM .......-- +--+ s+s55> 4

A. No Decision Of This Court Has Held That

A Parental Notification Statute May Use

A Different Standard For Bypassing Parental

Involvement Than Is Required For A Parental

Consent GRGUER ww ew we eee tees 5

B. The Montana Statute’s Best Interests

Standard For Immature Minors Impermissibly

Narrows The Class Of Minors Able To Obtain

An Abortion Without Parental Involvement

And Is Based On A Misunderstanding Of

The Function Of The Bypass ......-++-+->> 9

Il. THE DECISION OF THE COURT OF APPEALS

IS NOT IN CONFLICT WITH THAT OF ANY

OTHER COURT OF APPEALS........-.----: 13

III. NO ISSUE OF NATIONAL IMPORTANCE IS

RAISED BY THIS CASE.......--- +++ +555 15

CONCLIISION .. 0c cece cent nee eee 17

TABLE OF AUTHORITIES

Cases: Page

Barnes v. Mississippi, 992 F.2d 1335 (Sth Cir.).

cert. denied, 114 S. Ct. 468 (1993)........._.. )

Bellotti v. Baird, 443 U.S. 622 a passim

Causeway Medical Suite v. leyoub,

905 F. Supp. 360 (E.D. La. 1995),

appeal pending, No. 95-31178

(argued Sept. 5, 1996). ............. 6, 12, 16

City of Akron v. Akron Ctr. for Reproducti

H

462 U.S. 416 (1983) ._.. . oegagell 16

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

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

Indiana Planned Parenthood v. Pearson.

716 F.2d 1127 (7th Cir. 1983)............. 16

McCray v. New York, 461 U.S. 961 (1983). ....___. 16

Metropolitan Stevedore Co. v. Rambo.

eC... fll. 13

Montana v. Egethoff, 116 S. Ct. 2013 (1996) ...._. 11

Nichols v. Fearson, 32 U.S. (7 Pet.) 103 (1833) .... 14

Ohio v. Akron Center for Reproductive Health.

I ce cc cece 4.6

Planned Parenthood v. Casey.

ee 7,8

iV

Planned Parenthood v. Miller, 63 F.3d 1452,

cert. denied, 116 S. Ct. 1582 (1996) ....... 8, 17

Planned Parenthood v. Miller,

934 F.2d 1462 (1ith Cir. 1991) ........ 9, 13, 14

Planned Parenthood of Southern Arizona v. Neely,

942 F. Supp. 1578 (D. Ariz. 1996) .......... 16

United States v. Carver, 260 U.S. 482 (1923) ...... 16

Webb v. State of Alabama, Dept. of Pensions and Security,

850 F.2d 1518 (11th Cir. 1988) ............ 14

Williams v. Zbaraz, 448 U.S. 358 (1980) ......... 14

Statutes & Rules:

Ga. Code Ann. § 15-11-1114 ... 2... 2 2 ee ee eee 13

Mont. Code Ann. § 41-3-202 ............-44. 3,8

Mont. Code Ann. § 41-5-SO2(1) .....-. 2. ee ee 3

Mont. Code Ann. § 50-20-107(b) (1993) .......... l

Mont. Code Ann. § 50-20-212(5)(a) .......-. «ee. 8

Gee Sie wetidcassusds bowie wl deem passim

Se: Ge BR GERD. oe kr eatin wuss sevestens 15

Ge: G0 US sisi eee 4

Miscellaneous:

Stewart A. Baker, Symposium on Supreme Court

Advocacy: A Practical Guide to Certiorari,

33 CATH. U. L. REV. 611 (1984)

ROBERT L. STERN, ef ai.,

SUPREME COURT PRACTICE (7th ed. 1993) __.

- ae ee: SS

Respondents Susan Wicklund, M.D.., ef ai.,

respectfully submit the following brief in opposition to the

petition for certiorari filed by Michael Salvagni, the County

Attorney for Gallatin County, Montana (hereinafter

“petitioner” or “the State"), docketed on November 29,

1996.

COUNTERSTATEMENT OF THE CASE

This case was filed in November of 1993 after a police

officer threatened respondent Wicklund with prosecution

under the then-existing Montana parental notification law,

enacted in 1974, Mont. Code Ann. § 50-20-107(b) (1993)

(hereinafter "the 1974 statute"), and after Wicklund was

served with a state court subpoena obtained by the office of

petitioner Salvagni commanding her to produce the medical

records regarding medical procedures and counseling

performed at her office on July 21, 1993, the date when

one minor purportedly obtained an abortion at her office.

The 1974 statute contained no mechanism by which minors

could bypass the parental notification requirement. The

federal district court granted a temporary restraining order

against the 1974 statute on November 30, 1993, and the

su was subsequently quashed by the state district

court

In December of 1993, petitioner Salvagni, represented

by the Attorney General of Montana, entered into a

stipulation for judgment that states that the Montana

parental notification law is unenforceable under the

decisions of this Court. On December 21, 1993, the

district court entered a permanent injunction against

enforcement of the 1974 statute based on the stipulation of

the parties.

In 1995, the Montana legislature repealed the 1974

Statute, and enacted a new parental involvement statute

(hereinafter "HB 482” or “the Montana statute").

2

Respondents filed a supplemental complaint challenging the

constitutionality of HB 482 in July of 1995.

Under HB 482, an unemancipated minor who wishes to

avoid notice to a parent of an abortion must petition the

Montana youth court for a waiver of notice. HB 482

requires the youth court to authorize the minor to consent

to the performance or inducement of an abortion without

the notification of a parent or guardian,” see Pet. 3,’ in

three circumstances:

(1) if the court finds by clear and convincing evidence

that the minor is sufficiently mature to decide whether to

have an abortion;

(2) if the court finds by clear and convincing evidence

that there is evidence of a pattern of physical, sexual, or

emotional abuse of the minor by one or both parents, a

guardian, or a custodian; and

(3) if the court finds by clear and convincing evidence

that "the notification of a parent or guardian is not in the

best interests of the petitioner." See Pet. 3 (quoting

statute).

In their supplemental complaint, respondents

challenged, inter alia, the adequacy of this bypass

procedure. First, respondents argued that a minor will be

unable to avoid parental notification even if she is mature

or an abortion is in her best interests. Under the Montana

Youth Court Act, after a petition is filed in the youth court,

a "summons must be served directly to: (a) the youth; (b)

‘Citations to the text of the petition for writ of certiorari are in the

form "Pet. *: citations to the appendix to the petition are in the form

" 4"

3

his parent or parents having actual custody of the youth or

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

persons as the court may direct." Mont. Code Ann. § 41-

5-502(1) (emphasis added). Thus, at the outset, the minor's

parents will receive notice of the proceeding purportedly

designed to allow her to waive notice.

Second, respondents argued that an abused minor will

be unable to avoid parental notification, even if she is

mature or an abortion is in her best interests, because a

finding of a pattern of "physical, sexual, or emotional

abuse" by the youth court must be reported pursuant to

Mont. Code Ann. § 41-3-202, and such a report will

sometimes result in an investigation at the minor’s home.

thus effectively notifying the parents of the minor.

Third, respondents argued that, as to immature minors,

the grounds for a waiver of parental notification are too

narrow. Instead of requiring the youth court to authorize

the minor "to consent to the performance or inducement of

an abortion without the notification of a parent or guardian"

if an abortion is in her best interests, it authorizes the

abortion only in the narrower circumstances where parental

notification is not in her best interests. This difference had

been condemned by the court of appeals in which Montana

is situated in Glick v. McKay, 937 F.2d 434, 438-39 (9th

Cir. 1991), four years before the Montana legislature

enacted HB 482.

The district court reached only the third of these

challenges to the adequacy of HB 482's judicial bypass

mechanism. It held that the bypass mechanism of a

parental notification statute must satisfy the same criteria as

a parental consent statute, as laid out in Bellotti v. Baird.

443 U.S. 622 (1979), and that HB 482 failed to comply

with the best interests criterion set out in Bellotti for

4

immature minors. Thus, the district court permanently

enjoined HB 482.

On appeal, the court below held that it was bound by

the holding in Glick, and accordingly affirmed the district

court’s decision. Petitioner’s suggestion for may

banc -- a request that the court of appeals overrule Glick --

was denied with no active judge requesting a vote on

whether to rehear en banc. See 34a.

REASONS FOR DENYING THE WRIT

In seeking review by this Court, the State has failed -

establish any of the factors that weigh in favor of a oe 0

certiorari. On the contrary, the decision of the court below

is in conflict neither with the decisions of this Court nor

with the decisions of other United States courts of =

Further, no important question of federal law is le

this case "that has not been, but should be, settled by S

Court," Sup. Ct. R. 10(c), because strong on pr fi “

grounds support the result reached by the court o appeals.

Accordingly, the petition should be denied.

I. THE DECISION OF THE COURT OF APPEALS

IS CONSISTENT WITH THIS COURT’S

DECISIONS AND WITH THE REASONING

UNDERLYING THEM.

State ar that this Court should grant its

Bp he deatelen of the court of appeals is

"incompatible" with this Court’s decisions in Bellotti v. ‘

Baird, 443 U.S. 622 (1979), Hodgson v. Minnesota, 49

U.S. 417 (1990), and Ohio v. Akron Center for

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

Contrary to the State’s argument, however, nothing in

5

holdings in these cases is inconsistent with the decision of

the court of appeals.

A. No Decision Of This Court Has Held That A

Parental Notification Statute May Use A

Different Standard For Bypassing Parental

Involvement Than Is Required For A Parental

Consent Statute.

In Bellotti, the plurality opinion of Justice Powell

outlined the bypass procedure that a State must establish in

connection with a parental corsent statute for abortion. In

relevant part, the plurality Opinion stated:

If, 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.

Id., 443 U.S. at 648 (emphasis added). Thus, under a

consent statute, such a minor has a right to obtain court

authorization for the abortion "without first consulting or

notifying her parents," id. at 647, even if parental

involvement or notification would be in her best interests.

The opinion correctly observed that mere notice of the

bypass proceeding might result in "parents’ efforts to

obstruct both an abortion and access to court.” Jd. That

is, even if the minor obtained judicial authorization for the

abortion, notification of a parent might result in denial of

"an effective avenue of relief for some of those who need it

most." Jd. (emphasis added). It is thus entirely consistent

with Bellotti to require, as did the court below, that a

judicial bypass in a parental notification statute must waive

parental notification if the abortion is in the minor’s best

interests.

6

Under Bellotti, where a State requires parental consent

for abortion, it must allow the minor to obtain a bypass of

parental consent without any notice to the parents

whatsoever. Indeed, the fact that the Massachusetts statute

at issue in Bellotti did not allow for a bypass without notice

to parents was the chief ground upon which ‘the plurality

invalidated the statute. Jd. at 647. If, in the case of an

immature minor, an abortion is in her best interest, the

state court inquiry is over, and authorization for the

abortion must be given.’

The State next argues that the decision of the court of

appeals is "at odds with" this Court’s decisions in Hodgson

and Akron II. See Pet. 9. Neither Hodgson nor Akron II,

however, involved a challenge to the judicial bypass

standards applicable to immature minors. Thus, the State's

argument that the Court in Hodgson and Akron II held sub

silentio that the Bellotti standards are not required in .

parental notification statutes is misplaced. Whether this

Court was “unaware of the nature of the best interests

standard in the Ohio law" or not, see Pet. 12, is irrelevant.

24 decision invalidating Louisiana’s parental consent statute er

this point. In Causeway Medical Suite v. leyoub, 905 F. Supp. -

(E.D. La. 1995), appeal pending, No. 95-31178 (argued Sept. >

1996), the district court held unconstitutional ee a

Louisiana’s statute requiring parental consent for abortion. One o “

constitutional flaws identified by the court was that the statute, _—

included a judicial bypass of parental consent, required De

juvenile court notify the parents of immature minors who have ” ve

for judicial bypass if it is determined ee

minor to do so.” Jd. at 365. In essence, Louisiana had adopted

parental consent law and a parental notification law: to avoid parental

consent, the minor must seek a judicial bypass; but, in the bypass

proceeding, if the court found the minor immature, her pagel

be notified if notification was in her best interests, even if the ion

itself was in her best interests.

7

A conflict between a decision of this Court and that of a

court of appeals is not created because this Court might

have been "aware" of a similar provision in another

statute.’ A conflict requires a holding of this Court -- or at

least some analysis of the question. No opinion of this

Court since Bellotti, however, has purported to analyze the

standard applicable to immature minors seeking

authorization for an abortion under a parental notification

Statute.

Finally, the State argues that a different best interests

standard in parental notification statutes "makes practical

sense because under a notification statute the minor, not a

parent or a Court, possesses final decisionmaking power

concerning whether an abortion is warranted and because

the bypass proceeding’s sole purpose is to determine

whether waiver of the notice requirement is appropriate. "

Pet. 17. Practically, however, notice to a parent is often

tantamount to delegation of a veto power, because mere

notice might result in "parents’ efforts to obstruct [the]

abortion... ." Bellotti, 443 U.S. at 647. Indeed, this

Court’s opinion in Planned Parenthood v. Casey, 505 U.S.

833 (1992), recognized that a spousal notification

requirement for abortion "is . . . likely to prevent a

significant number of women from obtaining an abortion."

Id. at 893. It is likewise true that a parental notification

requirement, because of the potential for "verbal

"Thus, the State’s argument that a conflict exists between this Court’s

opinions and that of the court below is based on even Jess than its

argument that there is a conflict between the decision of the court below

and that of another United States court of appeals. As discussed below,

the latter argument improperly relies on dicta from another court of

appeals to construct a conflict, see infra at Point II; here the State relies

not even on dicta, but on an unspoken “awareness” of an issue not

raised by the parties or analyzed by the Court.

8

harassment, threats of future violence, the destruction of

possessions, physical confinement to the home, the

withdrawal of financial support, or the disclosure of the

abortion to family or friends," id., is likely to prevent some

minors from obtaining abortions, as surely as if the state

awarded the parents the power of consent.* As this Court

wrote in Casey, in words equally applicable to parental

notification:

Whether the prospect of notification itself deters

such women from seeking abortion, or whether the

husband, through physical force or psychological

pressure or economic coercion, prevents his wife

from obtaining an abortion until it is too late, the

notice requirement will often be tantamount to the

veto found unconstitutional in Danforth.

505 U.S. at 897 (emphasis added). Thus, it makes

practical sense to apply the same best interests standard to

both consent and notification statutes as the Court below

did, because notice often effectively delegates a veto power

to a parent. See Planned Parenthood v. Miller, 63 F.3d

1452, 1458-60 (8th Cir. 1995) (concluding that parental

notification is tantamount to parental consent and requires a

‘In addition, minors face physical and sexual abuse. pon a

purportedly contains an “exception” for cases In Ww . i

“evidence - a pattern of physical, sexual, or emotional abuse of the

minor, Mont. Code Ann. § 50-20-212(5)(a), HB 482 also requires the

youth court to make a report of the abuse pursuant to Mont. Code Ana.

§ 41-3-202, which may result in an investigation at the minor s home.

HB 482, § 9(2)(b). The report and investigation that will ensue will

result in constructive notification to the minor’s parents. Such

constructive notification was condemned by Justice O’Connor’s

controlling opinion in Hodgson v. Minnesota, 497 U.S. 417, 460 (1990)

(O’Connor, J., concurring).

9

similar bypass), cert. denied, 116 S. Ct. 1582, 1583

(1996).

B. The Montana Statute’s Best Interests Standard

For Immature Minors Impermissibly Narrows

The Class Of Minors Able To Obtain An

Abortion Without Parental Involvement And Is

Based On A Misunderstanding Of The Function

Of The Bypass.

The best interests standard employed by HB 482 will

prevent some minors from obtaining an abortion without

parental involvement even though, under the correct Bellotti

test, they would obtain judicial approval for an abortion.

Some immature minors whose best interests may dictate an

abortion may be prevented from obtaining the procedure

because a court concludes that notification of their parents

is in their best interests. As the court of appeals wrote in

Glick v. McKay, "The best interests of a minor female in

obtaining an abortion may encompass far more than her

interests in not notifying a parent of the abortion decision. "

Id., 937 F.2d at 439. Other courts of appeals have, in

dicta, recognized the difference between the two standards.

Barnes v. Mississippi, 992 F.2d 1335, 1341 (5th Cir.)

("parental consent statute using parental notification as the

guidepost for the child’s best interests might well be

unconstitutional"), cert. denied, 114 S. Ct. 468 (1993);

Planned Parenthood v. Miller, 934 F.2d 1462, 1477 n.21

(11th Cir. 1991) (recognizing that the two standards may

lead to different results, but suggesting that difference is not

“constitutionally significant"). The Glick reasoning is

sound and consistent with this Court’s decisions for three

reasons.

10

First, Glick correctly recognizes that the immature

minor’s best interests in having an abortion include "far

more" than her interests in avoiding notice to her parents.

For example, factors indicating that an abortion is in the

minor’s best interests may include the medical problems she

may experience during pregnancy and childbirth because of

her physical immaturity; other physical and emotional

health problems unrelated to her pregnancy; her capacity to

be a parent; or the interruption of her education that would

be caused by pregnancy, childbirth, and motherhood. See

Bellotti, 443 U.S. at 642 ("[T]}here are few situations in

which denying a minor the right to make an important

decision will have consequences so grave and indelible.").

These factors have no bearing on whether it is in her best

interests to notify or consult her parents, and are therefore

irrelevant under HB 482.

Second, the evidentiary burden on the immature minor

is significantly higher if she must prove by clear and

convincing evidence that parental notification is not in her

best interests than if she must prove, by the same standard,

that an abortion is in her best interests. By virtue of her

immaturity, it appear may at the outset of the youth court

hearing that she will benefit from parental consultation. To

prove that notification is not in her best interests, an

immature minor will have to overcome this presumption.

However, the Montana statute forecloses her from

presenting the most persuasive evidence that notice is not in

her best interests: evidence of physical, sexual or emotional

abuse. Because HB 482 requires the youth court to report

such information to the appropriate state authorities, such

evidence, if presented, may result in a report and a state

inquiry at her home. See n.4 supra. Furthermore, while

she may present evidence of a generalized fear of parental

retribution or obstruction, such a fear, though well-founded,

may not constitute "clear and convincing evidence."

ll

Indeed, an immature minor may have little or no

“evidence” that notification is against her best interests.

. On the other hand, under the proper Bellotti test, the

immature minor will generally be better able to show that

an abortion is in her best interests, for the presumption is

likely that an abortion is in her best interests. Her physical

and emotional immaturity itself may be grounds to find that

an abortion is in her best interests, as may be her physical

and emotional health. The obvious harm to the course of

her education, and the consequent harm to her future, are

also relatively easy to prove. Of course, specific problems

she may have at home if her parents discover she is

pregnant also bear on whether the abortion is in her best

interests.°

Finally, because HB 482 uses the incorrect standard,

the determination of whether to authorize an abortion for an

immature minor may be made without any consideration of

whether the procedure is in her best interests.° This goes

*By selecting one of the factors that a court considers in its Bellorti

assessment, and elevating it as the only factor to be considered, HB 482

necessarily increases the minor's burden of proof. It is axiomatic that

removal of one ground for meeting a burden of proof increases that

burden. For example, in a custody dispute where the best interests of

the child governs, if all factors other than ability to provide financial

support are removed from consideration, the burden of proof on a

poorer spouse changes decisively, even though, with a more global best

interests inquiry, that spouse might prevail. Cf. Montana v. Egelhoff.

116 S. Ct. 2013, 2023 (1996) (opinion of Scalia, J., announcing the

judgment of the court) ("by excluding a significant line of evidence that

might refute mens rea, the statute made it easier for the State to meet

the requirement of proving mens rea beyond a reasonable doubt”).

“Indeed, if the waiver of notice is granted, the abortion may be

performed simply because parental notification was not in her best

(continued...)

12

against the purpose of the bypass proceeding: the court is to

function as a surrogate for a parent, considering, as the

parent would, whether the abortion is in the minor's

interest.’ HB 482 changes the role of the judicial bypass,

so that whether the minor obtains an abortion depends

exclusively on her relationship with her parents, and not at

*(...continued)

interests, even if, for some reason, the abortion itself may nor be in her

best interests. As this Court recognized in Bellotti:

[A}n abortion may not be the best choice for the minor. The

circumstances in which this issue arises will vary widely. In

a given case, alternatives to abortion, such as marriage to the

father of the child, arranging for its adoption, or assuming

the responsibilities of motherhood with the assured support of

family, may be feasible and relevant to the minor’s best

interests.

Id., 443 U.S. at 642-43. Under HB 482, exploration of alternatives to

abortion, the support of the father, and numerous other factors that may

weigh against the abortion being in the minor's best interests, are

improperly excluded from consideration.

"The State argues that “nothing precludes a notice bypass

decisionmaker from considering the appropriateness of the abortion

when it determines whether parental notification should occur, any more

than a parental consent bypass decisionmaker . . . is foreclosed from

concluding that judicial consent to an abortion should not be given until

parental consultation has taken place.” Pet. at 18.5. While it may be

argued that nothing precludes some consideration of whether the

abortion is in the minor's best interests, the Montana statute does not

require such consideration, and therefore does not serve the function

envisioned for the bypass: to serve as an evaluation, in the case of an

immature minor, of whether the abortion is in her best interests.

In addition, the State points to Louisiana's new parental consent

law as “codiflying] this aspect of Belloni.” Pet. 18 n.5. Far from

“codifying” Bellotti, the Louisiana statute is invalid under Beiloiti for

the very reason the State touts it. Causeway, 905 F. Supp. at 365.

13

all on her need for the procedure. As this Court indicated

in Hodgson, "{T)he justification for any rule requiring

parental involvement in the abortion decision rests entirely

on the best interests of the child.” 497 U.S. at 454

(emphasis added). By shifting emphasis away from the best

interests of the child in having the abortion, HB 482

violates the purpose of the bypass procedure.

Il. THE DECISION OF THE COURT OF APPEALS

IS NOT IN CONFLICT WITH THAT OF ANY

OTHER COURT OF APPEALS.

The State argues that the decision of the court below is

in conflict with the decision of the United States Court of

Appeals for the Eleventh Circuit in Planned Parenthood v.

Miller, 934 F.2d 1462 (11th Cir. 1991). The State relies,

however, entirely on a footnote in the opinion in Miller that

is Clearly dicta. But "[bjreath spent repeating dicta does

not infuse it with life." Metropolitan Stevedore Co. v.

Rambo, 115 S. Ct. 2144, 2149 (1995).

The Georgia parental notification statute at issue in

Miller, like the Montana statute whose invalidation was

affirmed by the court below, provides that an immature

minor is entitled to a waiver of parental notification if the

state court "finds . . . that notice to her parents would not

be in her best interests." Jd. at 1468 (citing Ga. Code Ann.

§ 15-11-114(c)(2)).* In addressing this aspect of the

‘Unlike HB 482, however, the Georgia parental notification law does

not require proof “by clear and convincing evidence” that parental

notification is not in the minor's best interests. Nor does the Georgia

Statute specifically require, as does HB 482, that the state court report

an allegation of abuse if that is the basis for a waiver of notice. See

Ga. Code Ann. § 15-11-114. Therefore, a minor seeking a waiver of

(continued...)

14

statute, the court of appeals wrote that "only one element of

the judicial bypass procedure -- an element not contested by

Planned Parenthood -- fails precisely to fit the Bellotti

language." Jd. at 1477 n.21 (emphasis added). Because

the issue was not contested by the parties, the court's

comments are the epitome of dicta. See, e.g., Nichols v.

Fearson, 32 U.S. (7 Pet.) 103, 107 (1833) ("the point. . .

was not argued, and the opinion expressed by the learned

judge was, at best, but an obiter dictum"); Webb v. State of

Alabama, Dept. of Pensions and Security, 850 F.2d 1518,

1521 n.2 (11th Cir. 1988) (family court statement was

“dicta and not a holding on the merits” in part because “the

issue had not been argued by the parties"). Indeed, the

court in Miller was without jurisdiction to decide the

constitutionality of an aspect of the statute that the plaintiffs

there did not challenge. See, e.g., Williams v. Zbaraz, 448

U.S. 358, 367 (1980) (district court "exceeded its

jurisdiction under Art. III in declaring the Hyde

Amendment unconstitutional" where "[njone of the parties

. . ever challenged the validity of the Hyde Amendment”).

Dicta by one court of appeals is not an appropriate

basis for finding a conflict between two courts of appeals.

"[T}here must be a real or ‘intolerable’ conflict on the same

matter of law or fact, not merely an inconsistency in dicta

or in the general principles involved." ROBERT L. STERN,

et al., SUPREME COURT PRACTICE § 4.3, at 167 (7th ed.

*(.. continued)

notice under the Georgia law need not fear that if she alleges abuse as a

basis for a claim that parental notification is not in her best interests,

the court hearing her request for a waiver will set in motion a process

that may result in notice to her abusive parent after all. HB 482

imposes precisely this deterrent on abused minors, and gives them no

certain way to obtain an abortion without parental involvement. See n.4

supra.

15

1993) (footnote omitted); see also Stewart A. Baker,

Symposium on Supreme Court Advocacy: A Practical Guide

to Certiorari, 33 CATH. U. L. REV. 611, 618 (1984) ("The

split should arise from the courts’ holdings; dicta, after all,

may be reconsidered."). Thus, there is no conflict between

the decision of the court below and "the decision of another

United States court of appeals on the same important

matter." Sup. Ct. R. 10(a).

Ill. NO ISSUE OF NATIONAL IMPORTANCE IS

RAISED BY THIS CASE.

The State argues that this case involves "an issue of

national importance [that] has been resolved without

analysis of controlling opinions of this Court." Pet. 19.

This argument is incorrect for two reasons.

First, the decision of the court of appeals, contrary to

the implication by the State, does not affect the “eleven

other states, all but one outside the Ninth Circuit, [that]

have comparably-worded best interests provisions.” See

Pet. 9. The one State identified by the petitioner within the

Ninth Circuit that has a "comparably-worded best interests

provision” is Nevada, see Pet. at 16 n.3; but this statute

was invalidated five years ago in Glick, and will remain

invalid however this Court resolves the petition, because it

was invalidated on grounds unrelated to its best interests

standard. See Glick, 937 F.2d at 440-41 (Nevada statute’s

bypass procedure “does not meet the Bellotti expediency

criterion").? The other states identified by the petitioner

*The State also suggests that three parental consent laws using a

standard similar to the Montana statute’s are in jeopardy. Pet. 17 n.4

(listing Arizona, Michigan and Louisiana statutes). But the State

appears to concede that, in the case of a consent statute, the standard

(continued...)

16

are outside the Ninth Circuit, and courts there will not be

bound by the decision of the court below even if this Court

denies the petition, for a denial of certiorari is accorded no

precedential value. United States v. Carver, 260 U.S. 482,

490 (1923) ("The denial of a writ of certiorari imports no

expression upon the merits of the case, as the bar has been

told many times."). Indeed, it is appropriate to deny the

petition to await "further study" in the lower courts of the

issue presented by the petition, study which may occur if

the statutes in states outside the Ninth Circuit are

challenged. See McCray v. New York, 461 U.S. 961, 963

(1983) (Stevens, J., respecting denial of certiorari).

In addition, the outcome of this case does not rest

entirely on the issue raised by the petition, because there

are two alternative grounds upon which this Court could

affirm the decision of the court below. Ultimately,

respondents would be likely to prevail on these grounds.

First, this Court has disapproved a judicial bypass

mechanism using a juvenile court that resulted in automatic

notice to parents -- a mechanism identical to that of the

Montana statute. City of Akron v. Akron Ctr. for

Reproductive Health, 462 U.S. 416, 441 n.31 (1983); see

also Indiana Planned Parenthood v. Pearson, 716 F.2d

1127, 1139 (7th Cir. 1983) ("[i}t would be unconstitutional

for the juvenile court to allow parents to obtain indirect

%...continued)

should be whether the abortion is in the minor's best interests. See Pet.

at 16-17. In any event, two of the three statutes identified by the State

are under injunction. See Causeway Medical Suite v. leyoub, 905 F.

Supp. 360 (E.D. La. 1995) (enjoining Louisiana parental consent statute

on several grounds aside from best interests standard); Planned

Parenthood of Southern Arizona v. Neely, 942 F. Supp. 1578 (D. Ariz.

1996) (enjoining Arizona parental consent statute on several grounds

aside from best interests standard).

17

notice of the waiver petition"). Second, HB 482’s indirect

notice to minors who prove a pattern of abuse renders it

unconstitutional. Hodgson v. Minnesota, 497 U.S. 417,

460 (1990) (O’Connor, J., concurring in part and

concurring in the judgment in part); see also Planned

Parenthood v. Miller, 63 F.3d 1452, 1461 (8th Cir. 1995)

("{iJn practice . . . South Dakota’s abuse exception will

sometimes result in parental notification, even if after-the-

fact"), cert. denied, 116 S. Ct. 1582, 1583 (1996). Thus,

granting the petition would decide the “best interests” issue

in a case where it need not be decided, since the statute,

regardless of the constitutionality of Montana's best

interests standard, is invalid.

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be denied.

Dated: January 13, 1997. Respectfully submitted,

BRUCE MEASURE SIMON HELLER

Law Offices of (Counsel of Record)

Ambrose Measure JANET BENSHOOF

P.O. Box 918 KATHRYN KOLBERT

Kalispell, MT 59903 The Center for

(406) 752-6373 Reproductive Law &

Policy

120 Wall St., 18th FI.

New York, NY 10005

(212) 514-5534

Counsel for Respondents