Opposition Brief — Barnes v. Mississippi

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

al | FIE BD

No. 93-314 OCT 26 93

}

OFFICE OF THE € |

IN THE ee ENN

Supreme Court of the United States

OCTOBER TERM, 1993

HELEN B. BARNES, M.D.: HENRY THOMAS GUNTER,

M.D.; MuississipP! WOMEN’S MEDICAL CLINIC; NEW

WOMAN MEDICAL CENTER (JACKSON): NEW WOMAN

MEDICAL CENTER (Bay Sr. Louls),

Petitioners,

THE STATE OF MISSISSIPPI; THE GOVERNOR OF THE

STATE OF MississipP!; THE ATTORNEY GENERAL OF

THE STATE OF Mississippi: Mississipp!1 STATE BOARD

OF MEDICAL LICENSURE and the members thereof:

THE Mississipp! SUPREME Court and the individual

Justices thereto,

ae Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

MIKE MOORE

Attorney General

State of Mississippi

T. HUNT COLE, JR.*

Special Assistant Attorney

General

Post Office Box 220

450 High Street, 5th Floor

Jackson, Mississippi 39205

(601) 359-3680

Counsel for Respondents

October 26, 1993 * Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

TAnus OF AUTHORITIAS ............................... ii

I ee 1

ee hy Ay 5 | ce 2

REASONS WHY THE PETITION SHOULD BE

| eRe a co I eT oe a TE 4

I. THE COURT OF APPEALS’ JUDGMENT

UPHOLDING THE FACIAL CONSTITU-

TIONALITY OF THE PARENTAL CON-

SENT/JUDICIAL BYPASS STATUTE IS

CORRECT AND WAS CONSISTENT WITH

WELL-ESTABLISHED PRECEDENT ..__ 4

Il. THE PETITION SETS FORTH NO GOOD —

REASONS TO GRANT REVIEW 9

A. No Precedent of This Court Requires A

“Fact-Finding” Hearing to Determine the

Facial Validity of a Judicial Bypass Meas-

ure, Which Is A Matter of Statutory Con-

I ee re re 9

B. The Decisions of This Court in Bellotti II

and its Progeny Plainly Establish that An

Adequate Judicial Bypass Will Save An

Otherwise Burdensome Parental Involve-

TI I Ne 13

C. The Court of Appeals’ Judgment Is Not in

Conflict with the Ninth Circuit, But Instead

Turned on A Construction of State Law

Which Is Inappropriate For Review ............. 15

Ee As, AAR eRe Sa eae Nea a neti a ce Ga ee 16

TABLE OF AUTHORITIES

CASES Page

Ashwander v. Tennessee Valley Authority, 297

U.S. 288 (1936) (Opinion of Brandeis, J.)_....... 10

Baker v. State, 327 So.2d 288 (Miss. 1976) ............. 8

Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti

BE") -.cii5sceucasersancandeanesaeeeeeaee ae 2, passim

Bowen v. Massachusetts, 487 U.S. 879 (1988)........ 16

Frisby v. Schultz, 487 U.S. 474 (1988) —......00200002... 8

Glick v. McKay, 937 F.2d 434 (9th Cir. 1991) _....... 15

Haring v. Prosise, 462 U.S. 306 (1983) -.....00...0... 16

Hodgson v. Minnesota, 497 U.S. 417 (1990) _..... 5, passim

Kelly v. Mississippi Valley Gas, 397 So.2d 874

(Biia, TGR nscccccesiccncaniccsniilguc nee eae 8

Ohio v. Akron Center for Reproductive Health,

497 U.S. 502 (1990) (“Akron IT’) ................ 6, passim

Planned Parenthood v. Casey, U.S. ——, 120

L.Ed Ol46 CD cect 5, passim

Planned Parenthood League v. Bellotti, 644 F.2d

1006 (ist Cie. TBS -...necce eee 10

Planned Parenthood of Kansas City v. Ashcroft,

43 US. G6 CHaGe? onic 2, passim

Webster v. Reproductive Health Services, 492 U.S.

BOO CIDDGD escicccccicnseitacsntacaeeeeeeee 8

STATUTES

Miss. Code Ann. § 41-41-51, et seq. ....000...20..2000..... 2, possim

RULES

Mississippi Supreme Court Rule 48 -.................. 2

Mississippi Uniform Chancery Court Rules 10.01,

REDO onscsnicinicsi.cccoevechacteeee 2, 3, 4,5, 7

OTHER

Stern, Gressman, and Shapiro, Supreme Court

Practice (6th ed.) ..... <scecisnkdataakieh pabeeeeee aaa taeeaaen 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-314

HELEN B. BARNES, M.D.; HENRY THOMAS GUNTER,

M.D.; MuississipPI WOMEN’S MEDICAL CLINIC; NEW

WOMAN MEDICAL CENTER (JACKSON); NEW WOMAN

MEDICAL CENTER (Bay St. Louls),

Petitioners,

THE STATE OF MississipPI; THE GOVERNOR OF THE

STATE OF MissIssipP1; THE ATTORNEY GENERAL OF

THE STATE OF Mississippi; MIssisstpP1 STATE BOARD

OF MeEpICAL LICENSURE and the members thereof;

THE MIssIssipPI SUPREME CourRT and the individual

Justices thereto,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

INTRODUCTION

Respondents State of Mississippi, et al., respectfully

request that this Court deny the petition for a writ of

certiorari, seeking review of the opinion of the United

States Court of Appeals for the Fifth Circuit. That opin-

ion is reported at 992 F.2d 1335 (Sth Cir. 1993). The

Court of Appeals held that Mississippi’s parental consent

to abortion/judicial bypass statute, properly construed

under state law principles, was constitutional on its face

under the decisions of this Court.

STATUTES INVOLVED

The text of Mississippi’s parental consent to abortion/

judicial bypass statute, Miss. Code Ann. § 41-41-51, ef

seq., is contained in the Appendix to the Petition, 1a-5a,

as are the court procedural rules which add detail to the

procedure for the bypass established by the statute, Su-

preme Court Rule 48, App. 9a, and Uniform Chancery

Court Rule 10.01, App. 6a. The statute and its proper

construction are further discussed in the opinion of the

Court of Appeals, App. 21la-23a, 30a-34a, 992 F.2d at

1337, 1341-1342. The parental consent judicial bypass

statute was passed in 1986, subsequent to the decisions

of this Court in Bellotti v. Baird, 443 U.S. 622 (1979)

(“Bellotti II”) and Planned Parenthood of Kansas City

v. Ashcroft, 462 U.S. 476, 490-493 (1983), and its pro-

visions were directly modeled after the guidelines set forth

in Bellotti 11.

Section 41-41-53 requires the consent of both parents

to an abortion of an unemancipated minor, with a num-

ber of exceptions to allow for one-parent consent. The

statute requires only the consent of the parent with pri-

mary custody, care, and control of the minor if the par-

ents are divorced or unmarried and living apart, and in

all other cases the consent of only one parent will suffice

if the other parent is not available in a reasonable time

or manner. § 41-41-53(2)(a) and (b). In addition, the

consent of the mother will suffice if the minor’s preg-

nancy was the result of incest by the minor’s father. Sub-

section (2)(c). A medical emergency exception to con-

sent is also provided in the statute. § 41-41-57.

The statute contains an integral judicial bypass substi-

tute for parental consent. A minor who elects not to seek

parental consent may petition, on her own behalf or by a

next friend, the Chancery Court for a waiver of the

- parental consent requirement. § 41-41-53(3). The court

shall advise the minor that she has a right to court-

appointed counsel and shall provide her with counsel

upon her request or if she is not adequately represented.

§ 41-41-55(2).

With regard to the substantive requirements for the

bypass proceeding in Chancery Court, § 41-41-55(4)

directs that:

[Parental] consent shall be waived if the court finds

either:

(a) That the minor is mature and well-informed

enough to make the abortion decision on her

own, or

(b) That performance of the abortion would be

in the best interests of the minor.’

This is identical to the guideline set forth in Bellotti II,

443 U.S. at 643-644. The court is required to issue

“written and specific factual findings and legal conclu-

sions” regarding its decision under these substantive

standards. § 41-41-55(5).

Mississippi’s statute further requires that bypass court

proceedings be given precedence over other pending mat-

ters, that a decision be reached by the Chancellor within

72 hours of the time the petition was filed (or, if not,

that consent is automatically waived), and that an ex-

pedited appeal shall be available to the Supreme Court.

§41-41-55(3). See Bellotti II, supra. Similarly, bypass

proceedings and any appeal shall be “confidential and

1Tt is with regard to this substantive provision that Petitioners

claimed that a section of the Chancery Court procedural rule con-

flicted with the statutory “best interests” determination required

for a minor who is not mature. Chancery Court Rule 10.01(4)

states that a minor may alternatively plead maturity or that “notifi-

cation of her parents ... is not in her best interests.” The Court

of Appeals held that under state law the statute was not preempted

by the rule.

anonymous,” § 41-41-55(3) and (6), with criminal pen-

alties for unauthorized disclosure, § 41-41-61. See Bel-

lotti II, supra.

In this regard, Chancery Court Rule 10.01, App. 6a,

regarding bypass procedures, further provides, inter alia,

that “pleadings, documents, or evidence ... shall be

liberally construed so as to do substantial justice, “that

reference to the minor’s identity shall be by initials only,

and that hearings shall be closed and the confidentiality of

all records maintained. Rule 10.01(5). Supreme Court

Rule 48, entitled “Appellate Procedure Following Denial

of Waiver of Consent to Abortion,” App. 9a, provides

abbreviated procedures for any appeal and sets forth a

precise timetable to ensure an expedited decision by the

Supreme Court.’

The statute went into effect in July 1993 with the issu-

ance of the mandate of the Court of Appeals, and it is

currently in operation.

REASONS WHY THE PETITION SHOULD BE DENIED

I. THE COURT OF APPEALS’ JUDGMENT UPHOLD-

ING THE FACIAL CONSTITUTIONALITY OF THE

PARENTAL CONSENT/JUDICIAL BYPASS STAT-

UTE IS CORRECT AND WAS CONSISTENT WITH

WELL-ESTABLISHED PRECEDENT.

The Court of Appeals’ judgment upholding Mississippi's

parental consent to abortion/judicial bypass statute as

constitutional on its face was a manifestly correct result

and an outcome which was required by precedent that

is now settled in this particular area of abortion law.

The Court has reiterated its views on parental involve-

2 Moreover, Uniform Chancery Court Rule 11.00, App. 32a, pro-

vides, inter alia, that: “If there be any conflict between these

(Chancery Court] Rules ... and any applicable Mississippi statutes,

the latter shall be followed.”

ment statutes with a judicial bypass alternative in numer-

ous opinions. Accordingly, this case presents no occasion

for the exercise of certiorari jurisdiction by the Court.

In holding that a parental consent to abortion statute

will be upheld where a sufficient judicial bypass alternative

to consent is provided, and, most importantly, that Mis-

Sissippi’s judicial bypass scheme, properly construed under

State law principles, was adequate on its face as a matter

of law, App. to Pet. for Cert. 23a-25a, 30a-34a; 992

F.2d at 1337-1339, 1341-1342, the Court of Appeals

explicitly applied the controlling principles that have been

formulated in the decisions of this Court. In at least five

cases, this Court has established or expressly reconfirmed

the principles which are to be utilized in determining the

constitutionality of parental involvement statutes, includ-

ing two-parent consent statutes, and the proper standards

to be followed in assessing the facial sufficiency of a judi-

cial bypass procedure. Bellotti v. Baird, 443 U.S. 622,

640-643, 648-649 (1979) (“Bellotti II”) (holding with

regard to Massachusetts’ two-parent consent statute that

requiring both parents’ consent “does not unduly burden

the constitutional right” so long as an adequate bypass

alternative is available); id. at 656 (White, J., dissent-

ing); Planned Parenthood of Kansas Ciiy v. Ashcroft,

462 U.S. 476, 490-493 & n.15 (1983) (holding that

Bellotti II set forth “established legal standards” and

rejecting the view that Bellotti IJ consisted of non-binding

dictum); Hodgson v. Minnesota, 497 U.S. 417, 497-499

(1990) (plurality opinion of Kennedy, J.) (“The simple

fact is that our decision in Bellotti II stands for the propo-

sition that a two-parent consent law is constitutional if

it provides for a sufficient judicial bypass alternative”);

id. at 461 (O'Connor, J., concurring) (“The Court has

explicitly approved juditial bypass as a means of tailoring

a parental consent provision so as to avoid unduly burden-

ing the minors’ limited right to abortion,” citing Bellotti

IT); Planned Parenthood v. Casey, US. . Lae

L.Ed.2d 674, 729 (Joint Opinion) (summarily approving

Pennsylvania’s parental consent/judicial bypass statute;

“'wle have been over most of this ground before”); id.

at 776 (opinion of Rehnquist, C.J.) (same); Ohio v.

Akron Center for Reproductive Health, 497 U.S. 502

(“Akron II”) (reaffirming Bellotti I] guidelines as the

controlling standard for parental involvement statutes and

holding that challenged bypass statutes must be construed -

to harmonize with those constitutional guidelines where

fairly possible). Under these precedents, an adequate

judicial bypass procedure will clearly save an otherwise

unduly burdensome statute, regardless of the precise na-

ture of the parental involvement portion of the statute,

that is, regardless of whether it is two-parent notice, one-

parent consent, two-parent consent, or some hybrid.

The Court of Appeals properly considered itself bound

by these decisions with regard to Mississippi’s parental

involvement statute, which provides for one-parent con-

sent in a number of circumstances and two-parent consent —

in others, but which contains an express and integral

judical bypass alternative to any parental consent.*

Accordingly, as required by Akron II, 497 U.S. at 510-

515, the question of facial constitutionality ultimately

turned upon the narrow and dispositive issue of whether

Mississippi’s judicial bypass scheme, properly construed,

on its face met the Bellotti IT bypass criteria. These prin-

ciples are by now familiar. First, a state’s judicial bypass

will be adequate on its face where it provides a framework

in which: (1) a minor may show sufficient maturity to

make the decision on her own, or, (2) if immature and

not competent to make the decision herself, that the

performance of an abortion would be “in her best inter-

3 The Court of Appeals further held in the alternative that even

if Bellotti were not binding as precedent, Mississippi’s statute passed

constitutional muster on its face and was not an undue burden on

any abortion right. 26a-30a; 992 F.2d at 1339-1341. The lower

court’s alternative independent analysis of this question, similarly

informed by decisions of this Court, is also correct.

——————— <<<

ests;” (3) the bypass procedure is expeditious; and (4)

it provides for anonymity and confidentiality. Ashcroft,

462 U.S. at 490-493; Bellotti II], 443 U.S. at 643-644;

Akron II, supra; Casey 120 L.Ed.2d at 729 (Joint Opin-

ion) (citing Bellotti II and Akron I1); id. at 776 (Rehn-

quist, C.J.). Second, in construing the judicial bypass, the

lower federal courts must be mindful of the general rule

that “where fairly possible, courts should construe a stat-

ute to avoid a danger of constitutionality.” Ashcroft, 462

U.S. at 493 (emphasis supplied); Akron II, 497 U.S. at

514.

As pointed out by the Court of Appeals, Mississippi's

judicial bypass statute, Miss. Code Ann. §§ 41-41-51, et

seq., App. la-5a, adopted in 1986 only after the seminal

parental involvement decisions of this Court in Bellotti

II and Ashcroft, was modeled directly after the Bellotti

criteria and the substantive requirement indeed “tracks

[the] language” of that decision,* App. 31a, 992 F.2d

at 1341. The bypass statute is therefore indisputably

constitutional on its face. The only real issue in the Court

of Appeals was whether a “semantic difference” between

the substantive (and plainly constitutional) requirements

of the bypass statute and one allegedly inconsistent section

of the supplemental procedural rules, promulgated by the

Mississippi Supreme Court for use in the chancery courts,

somehow preempted the statute.” App. 30a-34a, 992 F.2d

at 1341-1342.

4 With regard to the substantive requirements for the bypass

proceeding in Chancery Court, § 41-41-55(4) directs that “Tl Pa-

rental] consent shall be waived if the court finds either: (a) That

the minor is mature and well-informed enough to make the abortion

decision on her own; or (b) That performance of the abortion

would be in the best interests of the minor.”

5 The Chancery Court pleading rule, § 10.01(4) alternatively per-

mits a minor to plead in the bypass petition either maturity or that

one or both of her parents was engaged in abuse against her or

that “the notification of her parents . . . otherwise is not in ber

best interests.” App. 61. We note that the language of the chan-

On this narrow issue, the Court of Appeals held as a

matter of law that the language of the chancery court

procedures did not overrule or preempt the substantive

requirement of the statute mandating a “best interests”

finding by the chancery court as to immature minors.

This result was plainly consistent with the proper fed-

eral approach to statutory construction in such matters °

and was correct as a matter of state law.

First, under Mississippi law, the state courts are bound

to give effect to all substantive requirements of a statute;

a procedural pleading rule does not “trump” or preempt

the statutory “best interests” language, which is a sub-

stantive requirement. Kelly v. Mississippi Valley Gas,

cery pleading rule is identical to that contained in Ohio’s judicial

bypass statute, which was construed by this Court in Akron II

as complying fully with Bellotti. See Akron II, 497 U.S. at 508,

511. Moreover, if a chancellor after hearing is uncertain as to an

immature minor’s best interests and may be inclined to deny the

petition, the pleading requirement clearly serves a valid informa-

tional function. Bellotti IJ, 443 U.S. at 648.

6In constitutional litigation, including abortion litigation, the

controlling rule set forth by this Court is that “where fairly pos-

sible, courts should construe a statute to avoid a danger of uncon-

stitutionality.” Akron II, 497 U.S. at 514, quoting Planned Parent-

hood of Kansas City v. Ashcroft, 462 U.S. 476, 493 (1983). Where

no authoritative state court construction of the enactment exists,

a federal court may not invent its own reasons to strike down a

statute but instead is obligated to give consideration to both the

canons of construction used in courts of the state and to plausible

interpretations of the law offered by the State Attorney General.

Webster v. Reproductive Health Services, 492 U.S. 490, 515 (1989) ;

Frisby v. Schultz, 487 U.S. 474, 482-483 (1988). Similarly, in a

facial attack, a court may not invalidate a statute based upon a

speculative “worst case” analysis, and it may not be presumed in

advance that a State will construe its law so as to bring it into

conflict with the federal Constitution. Akron II, supra; Ashcroft,

462 U.S. at 491 n.16. Moreover, as a matter of state law, courts in

Mississippi must similarly adopt a reasonable construction of an

enactment which will save it from any potential constitutional

problems. Baker v. State, 327 So.2d 288, 291 (Miss. 1976).

397 So.2d 874, 877 (Miss. 1981). As pointed out by

the Court of Appeals, under a proper construction of Mis-

Sissippi law, a state court could not, as Petitioners imag-

ined, simply ignore the substantive standards prescribed

by the bypass statute. App. 32a; 992 F.2d at 1341. More-

over, as further indicated by the Court of Appeals, “Mis-

sissippi’s own Chancery Rules direct a court to follow

State statutes if there is a direct conflict between the rule

and the statute,” and the chancery court bypass rules

direct that bypass pleadings “shall be liberaily construed

. .. $0 as to do substantial justice.” /d.

This correct construction of state law by the Court

of Appeals was dispositive of the appeal below. “Properly

interpreted and applied by the chancery courts, Missis-

sippi law requires them to grant any minor a_ bypass

if an abortion is in her best interest.” App. 34a note 5,

992 F.2d at 1342 (emphasis in original).

The Court of Appeals followed the decisions of this

Court regarding parental consent judicial bypass meas-

ures, and it applied the proper federal and state law

rules of statutory construction to the particular enact-

ments at hand. Even if the correction of possible lower

court errors were the principal basis for the exercise of

certiorari jurisdiction, the judgment below would not be

a meritorious candiate for review.

II. THE PETITION SETS FORTH NO GOOD REA-

SONS TO GRANT REVIEW.

A. No Precedent of this Court Requires A “Fact-

Finding” Hearing to Determine the Facial Validity

of a Judicial Bypass Measure, Which Is A Matter

of Statutory Construction.

The Petitioners pose the broad question of whether

litigants are entitled to some sort of “evidentiary hearing”

with regard to a facial challenge as to some abstract abor-

tion measure, Pet. for Cert. at i, 10-12, and claim that

“[b]lecause the Court of Appeals failed to remand this

case for fact-finding under the newly minted undue burden

standard, it conflicts with Supreme Court precedent” in

Hodgson and Casey, id. at 12.

The short of the matter is that with regard to the par-

ticular type of measure at issue below, a parental consent/

judicial bypass statute, no decision of this Court has re-

quired “fact finding” to determine the facial validity of

the court bypass procedure; the issue is one of statutory

construction, which is a classic question of law, not of

“fact.” There is no “conflict” with Hodgson or Casey,

direct or otherwise. To the contrary, both of those deci-

sions, fairly read, confirm the judgment and disposition

by the Court of Appeals here.’

First, there is no valid purpose or reason for the Peti-

tioners’ suggested “fact-finding” remand here. This case

involved the facial validity and the statutory construction

of judicial bypass enactments in light of Supreme Court

and state law guidelines; these are classic issues of law,

not questions of fact. There is no Supreme Court “prece-

dent” which requires a lower federal court to conduct

some sort of speculative “fact-finding” as to the facial

7 Moreover, because Mississippi’s judicial bypass, properly con-

strued, fell squarely within the criteria for a judicial bypass set by

Bellotti and its progeny, reaffirmed in Casey, the Court of Appeals

did not directly address the broad and generic issue now sought to

be posed by Petitioners. Instead, the Court of Appeals ruled only

that a remand for “fact finding” was not required in the context of

a determination of the facial constitutionality of abortion statutes

essentially identical to those that had received the express approval

of this Court. App. 33a-36a, 992 F.2d at 1342-1343. Accordingly,

the relatively narrow grounds of the Court of Appeals’ judgment

do not constitute an appropriate vehicle to address or to debate the

broad and questionable proposition asserted by Petitioners. In-

deed, if review were granted, this Court would ordinarily seek to

rule on the narrowest ground available and to avoid any unduly

broad proposition of constitutional law. Ashwander v. Tennessee

Valley Authority, 297 U.S. 288, 346-347 (1936) (opinion of

Brandeis, J.).

validity of a bypass measure which will be administered

by a coordinate state court system. On the contrary, the

applicable Supreme Court precedents indicate that a by-

pass must be upheld where on its face it comports with

the Bellotti IT guidelines. Akron II, 497 U.S. at 510-517:

Ashcroft, 462 U.S. at 491-493. As stated in Ashcroft,

“[t]he issue . . . is one purely of statutory construction:

whether [the State] provides a judicial alternative that is

consistent with these established legal standards” set forth

in Bellotti II. Ashcroft, 462 U.S. at 491-492. Statutory

construction is a matter of law, not a matter of fact.

Second, the judgment of the Court of Appeals is not

even arguably “in conflict” with Hodgson or Casey as re-

quired by this Court’s Rule 10.1(c).* The purported

“conflict” is a product of wishful thinking or a zealous

imagination. To the contrary, both decisions upheld as

a matter of law the facial validity of parental involvement

statutes with an adequate bypass.

The Petitioners’ citation at Pet. 10-11 to Hodgson for

the proposition that some sort of “fact finding” is re-

quired is misleading for several reasons. Among other

reasons, Minnesota’s unique parental involvement statute,

unlike Mississippi’s, did not contain an integrated judicial

bypass. Minnesota’s preferred scheme was two-parent no-

tice without a bypass; it was only if the two-parent notice

provision was invalidated by a court that a judicial bypass

was triggered. 497 U.S. at 424-427. In this context, the

lower court and the Supreme Court assessed the facts

concerning two-parent notice in determining whether that

type of parental involvement provision standing alone was

constitutional. In approving Minnesota’s scheme with the

8 It is Respondents’ understanding, as stated in Stern, Gressman,

and Shapiro, Supreme Court Practice (6th ed.), at p. 208, that “to

justify a grant of certiorari, the conflict must truly be direct and

must be readily apparent from the lower court’s rationale or re

sult.” Neither that criterion, nor any other Rule 10 standard for

the exercise of certiorari jurisdiction, is met with regard to this

Petition.

bypass option, however, no “fact finding” was conducted

or required as to the validity of the bypass, nor was there

any suggestion that the issue was one of “fact” rather than

law. See Hodgson, 497 U.S. at 497-501 (Kennedy, J.);

id. at 461 (O’Connor, J.) (“in a series of cases, this

Court has explicitly approved judicial bypass as a means

of tailoring a parental consent provision so as to avoid

unduly burdening the minor’s limited right to abortion”).

Similarly, there is no arguable reading of this Court’s

decision in Casey as to the facial validity of Pennsyl-

vania’s integrated parental consent judicial 2: dass statute

that suggests that some sort of “fact finding” is required.

In affirming by a 7-2 vote the Third Circuit’s conclusion

that that particular measure was constitutional, this court

summarily approved Pennsylvania’s bypass statute on its

face as a matter of law. Casey, 120 L.Ed.2d at 729

(Joint Opinion of Justices O’Connor, Kennedy, and

Souter) (“Our cases establish, and we reaffirm today, that

a State may require a minor seeking an abortion to ob-

tain the consent of a parent or guardian, provided there

is an adequate judicial bypass,” citing, inter alia, Bellotti

II and Akron !/); id. at 776 (Rehnquist, C.J., concur-

ring in the judgment in part and dissenting in part)

(“{P]Jennsylvania’s parental consent /judicial bypass pro-

vision is entirely consistent with this Court's previous de-

cisions involving parental consent requirements”). The

suggestion of Petitioners that Pennsylvania’s parental

consent ‘bypass provision was somehow remanded by the

Court in Casey for further fact-finding, Pet. at 12, is

absolutely ludicrous.

There is no “conflict” and no warrant whatsoever for

review by this Court.

B. The Decisions of This Court in Bellotti IT and its

Progeny Plainly Establish that An Adequate Judi-

cial Bypass Will Save An Otherwise Burdensome

Parental Involvement Statute.

The Petitioners claim that the constitutionality of “two-

parent” consent statute with a bypass “has never been,

and should be, addressed by this Court.” Pet. at 13-16.

They assert that “[t]he Court in Bellotti II. . . did not

discuss whether an adequate bypass provision wouid be

sufficient to rectify the constitutional problems associated

with a two-parent consent requirement” and that the ques-

tion is “open.” Pet. at 13 note 9.

The Petitioners’ premise is demonstrably incorrect and,

in light of numerous decisions of the Court, cannot form

a valid basis for the exercise of certiorari jurisdiction to

review the judgment below. Under the principles which

inform the use of stare decisis, see Casey, 120 L.Ed.2d

at 706, it is far too late in the day for the Petitioners

to seek to ignore Bellotti II or to dismiss it as dictum.

The requirements for a sufficient judicial bypass, and

the principle that a bypass alternative would save a par-

ental consent statute that unconstitutionally burdens an

abortion right, were expressly formulated by the Court in

Bellotti II in the context of Massachusetts’ “two-parent” °®

consent statute. Those principles have been utilized, and

Bellotti has been cited, in all subsequent Supreme Court

parental involvement decisions. In Bellotti II, the four-

Member plurality opinion of Justice Powell expressly held

that:

® Massachusetts’ two-parent consent statute at issue in Bellotti II

required the consent of both parents with few exceptions. 443 U.S.

at 630. By contrast, the parental involvement portion of Missis-

sippi’s consent/bypass statute permits a number of exceptions to

allow for one-parent consent where the parents are divorced, where

only one parent is available in a reasonable time, or where the

pregnancy was caused by sexual intercourse with the minor’s father

or stepfather.

[w]e are not persuaded that, as a general rule, the

requirement of obtaining both parents’ consent un-

constitutionally burdens a minor’s right to seek an

abortion. The abortion decision has implications far

broader than those associated with most other kinds

of medical treatment.

* * * *

As every pregnant minor is entitled in the first in-

stance to go directly to the court for a judicial de-

termination without prior parental notice, consulta-

tion, or consent, the general rule does not unduly

burden the constitutional right.

Bellotti II, 443 U.S. at 649 (emphasis supplied). Add-

ing Justice White’s vote in dissent, this represented the

reasoned majority judgment of the Court, since the Court

was expressly addressing the District Court’s objection to

the consent of both parents. Id. at 648.”°

Subsequently, in Ashcroft, the Court expressly held

that the plurality opinion in Bellotti II, with Justice

White’s dissent, had established the controlling legal

standards and specifically rejected the claim of the dis-

senters that the law regarding parental consent require-

ments was an “open” question. Ashcroft, 462 U.S. at 490

n. 15. See also Akron II, supra. More recently, Justice

Kennedy in Hodgson spoke to this issue at some length:

The simple fact is that our decision in Bellotti II

stands for the proposition that a two-parent consent

law is constitutional if it provides for a sufficient

bypass alternative. ...

* * * *

The plurality’s considered reasoning [in Bellotti]

coupled with the dissenting views of Justice White,

10In addition to the decisions of this Court reaffirming Bellotti

II, the First Circuit subsequently upheld Massachusetts’ amended

two-parent consent/judicial bypass statute as constitutional on its

face, on the basis of this Court’s decision in Bellotti II. Planned

Parenthood League v. Bellotti, 641 F.2d 1006, 1012-1013 (1st Cir.

1981).

was intended to set forth dispositive principles of

law for deciding the constitutionality of parental

consent laws.

497 U.S. at 498-499 (opinion of Kennedy, J.); see also

497 U.S. at 461 (O’Connor, J).

Respondents submit that the Petitioners’ less-than-

candid discussion presents no good reason to revisit this

now-settled subset of abortion law. The only “open” ques-

tion regarding parental involvement statutes is whether

a one-parent notice statute without bypass is constitu-

tional, see Akron II, 497 U.S. at 510, but the judgment

of the Court of Appeals regarding Mississippi’s statute

obviously does not and could not present that question.

Given the facially valid judicial bypass, further review

of the judgment below would serve no purpose.

C. The Court of Appeals’ Judgment Is Not in Conflict

with the Ninth Circuit, But Instead Turned On a

Construction of State Law Which Is Inappropriate

For Review.

Finally, the Petitioners’ claim, Pet. at 16-17, that the

Court of Appeals’ decision upholding Mississippi’s judi-

cial bypass conflicts with the Ninth Circuit’s decision in

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

idating Nevada’s bypass statute.

There is no “conflict” with Glick, direct or otherwise,

of the type appropriate for review by this Court. The

two states have different statutes. Mississippi’s bypass

statute, which sets forth the substantive standards for the

chancery judges to apply, expressly incorporates the “best

interests” language directly from Bellotti Il; Nevada’s stat-

ute did not use the Bellotti language, but instead used

only language that a bypass would be permitted if “no-

tice . . . would be detrimental to [the minor’s] best in-

terests,” 937 F.2d at 442. Accordingly, Nevada’s statute

addressed by the Ninth Circuit, correctly or incorrectly,

is clearly distinguishable from the question addressed by

the court below. As the Court of Appeals correctly held,

since Mississippi’s bypass statute uses language identical

to that approved in Bellotti, the only real question was

whether under state law the statute was totally preempted

by an allegedly inconsistent procedural rule of court. App.

30a-33a, 992 F.2d at 1341-1342. As a matter of Missis-

sippi law, the Court of Appeals found that it was not.

Accordingly, the judgment below turned on a construc-

tion of state law. There is no direct conflict with Glick,

and matters involving the construction of state law have

been held to be particularly inappropriate for review by

this Court. Haring v. Prosise, 462 U.S. 306, 314 n.8

(1983) (“a challenge to state law determinations by the

Court of Appeals will rarely constitute an appropriate

subject for this Court’s review [under] this Court’s Rule

[10]”); Bowen v. Massachusetts, 487 U.S. 879, 908

(1988) (“we have a settled and firm policy of deferring

to regional courts of appeal in matters that involve the

construction of state law”). Accordingly, this proposed

issue does not warrant review by this Court.

CONCLUSION

The Court has indeed “been over most of this ground

before,” with respect to parental involvement statutes,

Casey, 120 L.Ed.2d at 729 (Joint Opinion), and Re-

spondents submit there is no need to do so again. The

judgment of the Court of Appeals expressly relied upon,

and was plainly consistent with, the decisions of this

Court. There is no conflict with any precedent of this

Court nor with the decision of any other court of appeals.

Instead, the decision below ultimately turned on a con-

struction of state law, a narrow issue which is particularly

inappropriate for review by this Court. Accordingly, for

the reasons set forth in this brief, the petition for a writ

of certiorari should be denied.

Respectfully submitted,