# Opposition Brief — Lambert v. Wicklund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 292

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0041%3A3. Public record. Not legal advice.