Opposition Brief — Ieyoub v. Causeway Medical Suite

No. 97-92 oe) Supreme Court, U.S.

IN THE

Supreme Court of the Unite Stas"

OCTOBER TERM, 1997

>

RICHARD P. IEYOUB, in his official capacity as Attorney

General of the State of Louisiana; M. J. “MIKE” FOSTER,

JR., in his official capacity as Governor of the State of

Louisiana; ROBBY P. JINDAL, in his official capacity as

Secretary of the Louisiana Department of Health and

Hospitals; and MADLYN B. BAGNERIS, in her official

capacity as Secretary of the Louisiana Department of Social

Services,

Petitioners,

_o

CAUSEWAY MEDICAL SUITE and HOPE MEDICAL GROUP FOR

WOMEN, on behalf of themselves and the patients they serve,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

WILLIAM E. RITTENBERG JANET BENSHOOF

715 Girod Street, Suite 200 (Counsel of Record)

New Orleans, Louisiana 70130 KATHRYN KOLBERT

(504) 524-5555 BONNIE SCOTT JONES

SIMON HELLER

The Center for Reproductive

Law & Policy

120 Wall Street

New York, New York 10005

(212) 514-5534

Counsel for Respondents

QUESTION PRESENTED

Whether the 1995 amendments to Louisiana’s

parental consent abortion law violate the right to

privacy of all minors (including mature minors) by

requiring a bypass court to notify and consult with

both parents of an immature minor if the court finds

parental notification to be in her best interest?

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......s.scccccsssssssccscccccccesescsecesssesssees i

TABLE OF AUTHORITIES.........ccccccccccccsssssssssesssssssssssesssss iii

CP UIONG U isississisasseiceiieietiesalitinsart aes

COUNTERSTATEMENT OF THE CASE ..-.ccccsccscssscsssses00

REASONS FOR DENYING THE WRIT......cccccssssssssss0ees0000 6

I. QUESTION ONE OF THE PETITION

ESTABLISHES NONE OF THE FACTORS

WEIGHING IN FAVOR OF A GRANT OF

CEE eile corcnncesiiitiictnnniahtnaieiliiialasemniipiaettaicmmennnenestenns 6

II. QUESTIONS TWO, THREE AND FOUR OF

THE PETITION PROVIDE NO BASIS FOR

CPR Oe PUN e itacendepcantiensciescitnnterniinsciensnnestenie 17

A. The Shall/May Issue Decided by the Courts

RE NG IG i siticetecsicctetnattinteinnntcitiinnens 17

B. Jurisdiction of the Lower Courts Over this

Case is Well Established Under Existing Law.......... 19

C. Question Four of the Petition was Not

Decided by the Courts Below...................:ccccseeceeeeees 19

CORTE AIS acnnnveneenesinieesenitasialitaiiainiiaibasialaiannniaiaaaitiadiaibiet 21

ill

TABLE OF AUTHORITIES

Cases Page

A Woman's Choice-East Side Women’s Clinic

v. Newman, 904 F. Supp. 1434

(S.D. Ind. 1995), appeal stayed,

No. 95-3965 (7th Cir. Jan 22, 1996).......0..cccceee. 20

Akron v. Akron Ctr. for Reprod. Health,

REE re eee 8,9

Barnes v. Moore, 970 F.2d 12 (5th Cir.),

cert. denied, 506 U.S. 1021 CO 20

Beare v. Briscoe, 498 F.2d 244 (Sth Cir. 1974) wo... 18

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

Casey v. Planned Parenthood, 14 F.3d 848

I ai sccaesicpndanisenncconin 20

Causeway Medical Suite v. Ieyoub, 109 F.3d 1096

aca chetnamnnnawnncan ]

Causeway Medical Suite v. levoub, 905 F. Supp. 360

a RERERE ESR ai St i a a ]

Diffenderfer v. Central Baptist Church of

Miami, Fla., Inc., 404 U.S. 412 (1972)... 6, 18

Ex parte Young, 209 U.S. 123 (1908) .........ccceecsseeeeeeeeeee 19

Fusari v. Steinberg, 419 U.S. 379 (1975) ......ccccccssseeeeeeeeeees 6

iv

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

HL. v. Matheson, 450 U.S. 398 (1981)... ceeeeeeees 15, 16

FARE O.. TD, FPO Fe CD etteranicrsiiiocneinaiciesionnnai 6

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

Indiana Planned Parenthood v. Pearson,

re ar Cire dy CE | ean 16

Jane L. v. Bangerter, 102 F.3d 1112 (10th Cir. 1996),

cert. denied, 117 S. Ct. 2453 (1997) ..........ceeeeeeeeee 20

Janklow v. Planned Parenthood,

Oe a ee aid tidtiieshstitiiceiclatiaincsiinnnannnies 20

Lambert v. Wicklund, 117 S. Ct. 1169 (1997)......... 7, 12, 16

Maher v. Roe, 432 U.S. 464 (1977)...........:cccccsseseeeseseeeeeees 18

Margaret S. v. Treen, 597 F. Supp. 636 (E.D. La. 1984),

aff'd on other grounds sub nom. Margaret S.

v. Edwards, 794 F.2d 994 (Sth Cir. 1986)............... 2

Ohio v. Akron Ctr. for Reprod. Health,

PE i Fe CE ita itthintinriininitenin 5, 14, 15

Opdenwyer v. Brown, 99 So. 482 (La. 1924).............::00+ 10

Planned Parenthood v. Casey,

Fe ls ME I ertisctscicprnincstcekasionivriaieineis 8, 15, 20

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

(8th Cir. 1995), cert. denied,

BO ees Cars Ie I wehiciiites din sitsnccinciccssnndismenns 15, 20

v

Spector Motor Service, Inc. v. McLaughlin,

a ri I eta

State v. Muller, 365 So. 2d 464 (La. Pe icidihiicdesaitit

State of Nevada v. Watkins, 943 F.2d 1080

| RATE

Tully v. Mobile Oil Corp., 455 U.S. 245 > oe

United States v. Alabama, 362 U.S. 602 | | Fae

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

United States Dep’t of Justice v. Provenzano,

OR Ga BOE ini ccncensiosncecshisbermsnamsibtloeaanie ccs

Whalen v. Roe, 429 U.S. 589 (1977) ..ccececcccesecesssesescoseeeeee.

Women's Community Health Ctr., Inc. v. Cohen,

477 F. Supp. 542 (D. Me. 1979).....ccccececcscsceceeeeees

Women’s Medical Prof’l Corp. v. Voinovich,

911 F. Supp. 1051 (S.D. Ohio 1995),

appeal docketed, Nos. 96-3157 & 96-3159

GH ae. FB, BOG ini isineciinitdenscssnssna

Zablocki v. Redhail, 434 U.S. 374 (1978) ceccccccccccccccsssee

Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985),

aff'd by an equally divided Court,

RES ES. 5, ENN

Constitutional Provisions, Statutes & Rules

me SE ES iis ek

vi

i, SR, FETE Fe cicsicasicemnpsheitateian dete beicnellgictitichatilinsainesinith 19

La. Rev. Stat. § 40:1299.35.5 (West Supp. 1996)......... 1,19

La. Rev. Stat. § 40:1299.35.5(A) (West Supp. 1996)......... 2

La. Rev. Stat. § 40:1299.35.5(A)(1)

PE Sa Ela steetincctbibiahctnicsin weenie 10, 11

La. Rev. Stat. § 40:1299.35.5 (B)(4) (West Supp. 1996)....2

La. Rev. Stat. § 40:1299.35.5(B)(5)

CR SII Ceca cintcetiessassobnnccscatetbanineneaas passim

EP A BA Fe issn inincecetensiveclaallalvihctstsniteainbsiesilaneaedinieat 335

I: Ce Fh, I iccevesasusnainiineisdscasiiekdiminsaabestonsltbaanaelin 6, 16

i Se, Fs BE vachansctnnccsseceiesiecauceaiaatlanan 6, 16, 20

Miscellaneous

ROBERT L. STERN ET AL., SUPREME COURT

ye Wee SS: | PORTER et Oey en Ee eer 17

75 Op. Atty. Gen. Md. 14, 1990 Md. AG

LEXUS 46 (Ailing. 30, 29D cscinnssnscnscocoscesssavoveoccconesecovceses’ 16

Respondents Causeway Medical Suite and Hope Medical

Group for Women, on behalf of themselves and the patients

they serve, respectfully submit the following brief in

opposition to the petition for certiorari filed by Richard F.

leyoub, the Attorney General of Louisiana, et a/., docketed

on July 17, 1997.

OPINIONS BELOW

The opinion of the district court is reported at 905 F.

Supp. 360 (E.D. La: 1995). The opinion of the court of

appeals is reported at 109 F.3d 1096 (5th Cir. 1997).

COUNTERSTATEMENT OF THE CASE

This suit challenges the constitutionality of certain

amendments to Louisiana’s sfatutory requirement that a

minor seeking an abortion obtain the prior consent of her

parent or guardian. La. Rev. Stat. Ann. § 40:1299.35.5 (West

Supp. 1996) (“Louisiana’s parental consent law’’). The

decision of the district court concisely sets forth the

following legislative background of that law:

LSA-R.S. 40:1299.35.5 is a Louisiana statute that

regulates the circumstances under which a woman

under the age of 18 can obtain an abortion in the State

of Louisiana. Under LSA-R.S. 40:1299.35.5, a ;

physician is prohibited from performing an abortion

on a minor without either the consent of one parent or

guardian, or an order from a juvenile court judge

allowing the abortion. The process for obtaining a

court order in lieu of parental consent is called a

judicial bypass.

The instant dispute centers on the 1995 amendments

to the judicial bypass provision. Prior to the 1995

amendments, the judicial bypass provision stated:

(4) If the court finds that the minor is sufficiently

mature and well enough informed to make a decision

2

concerning the abortion on her own, the court shall

issue an order authorizing the minor to act on the

matter without parental consultation or consent.

(5) If the court finds that the minor is not competent

to make a decision concerning the abortion on her

own, but finds that the abortion nevertheless would be

in the best interest of the minor, the court shall issue

an order authorizing the abortion.

LSA-R.S. 40:1299.35.5 (A) and (B)(4)-(5) (1994)

(emphasis added).

The judicial bypass provision of [Louisiana’s parental

consent law] had been in effect as written above for

more than ten years. The prior version of the

~ Louisiana parental consent law was upheld by this

Court in the case of Margaret S. v. Treen, 597 F.

Supp. 636, 650-52 (E.D. La. 1984), aff'd on other

grounds sub nom. Margaret S. v. Edwards, 794 F.2d

994 (Sth Cir. 1986).

The 1995 amendments to the Louisiana parental

consent law change the judicial bypass provision so

that it reads as follows:

(4) If the court finds, by clear and convincing

evidence, that the minor is sufficiently mature and

well enough informed to make the decision

concerning the abortion on her own, the court may

issue an order authorizing the minor to act on the

matter. Prior to any such order, the court may require

the minor to participate in an evaluation and

counseling session with a mental health professional

(5) If the court finds that the minor is not sufficiently

mature and well enough informed to make a decision

intelligently among the alternatives, the court shall

decide whether or not it would be in the best interest

a ants eee

3

of the minor to notify her parents or guardian of the

Proceedings. If the court finds that it is in the minor’s

best interest to notify her parents or guardian, the

court shall so notify and reconvene the proceedings

within forty-eight hours with the parents or guardian

Present to advise and counsel the minor and aid the

court in making its determination whether or not the

abortion would be in the best interest of the minor.

would not be in the minor’s best interest to notify her

parents or guardian, the court may issue an order

authorizing the abortion if the court finds, by clear

and convincing evidence, that the abortion would be

‘ in the best interests of the minor.

80a-82a (emphasis in Original). !

On July 6, 1995, respondents filed this constitutional

challenge to the 1995 Amendments to Louisiana’s parental

consent law, Act 1254 (1995 Amendments). The district

court granted summary judgment in respondents’ favor,

permanently enjoining enforcement of the 1995

Amendments. The district court held that, as amended,

Louisiana’s parental consent law did not meet the

requirements of Bellotti y. Baird, 443 U.S. 622 (1979)

(plurality) (Bellotti IT), and therefore imposed an undue

burden on the right of minors to have access to abortion

services. 92a. 2

' Citations to the petition are in the form “Pet. _”: citations to its

appendix are in the form “ a”.

4

The Court of Appeals for the Fifth Circuit affirmed the

district court’s ruling, holding that the 1995 Amendments

presented three constitutional infirmities: (1) the changes

from “shall” to “may” impermissibly delegated to juvenile

court judges the authority to decide whether to order an

abortion for a mature, well-informed minor or for a minor for

whom an abortion is in her best interest, 21a-30a; (2) the

removal of a specific time for deciding upon a minor’s

application and for the completion of counseling and

evaluation left the consent statute inadequate to meet Bellotti

IP's expediency requirements, 30a-34a; and (3) the parental

notification provision contained in La. Rev. Stat. Ann. §

40:1299.35.5(B)(5) (“parental notification provision”)

improperly permitted juvenile court judges to notify the

parent or guardian of an “immature” minor of the

proceedings before it and to consult with those adults as part

of the judge’s process of deciding upon the minor’s

application, 34a-37a.

With respect to the parental notification provision, the

court of appeals held:

If Bellotti IJ means anything, it surely means that

States seeking to regulate minors’ access to abortion

must offer a credible bypass procedure, independent

of parents or legal guardians, in a parental consent

statute like the one in Louisiana. Plainly, the State

has attempted to enter through the proverbial back

door by suggesting that the “best-interest-of-the-

minor” inquiry cannot arbitrarily exclude the input of

parents or a legal guardian. Although the Supreme

Court has recognized that bypass decisonmakers can

consider whether parental notification would be in the

must be completed, $9a-9 1a; and (3) violated the minor's right to make an

abortion decision anonymously and confidentially by authorizing the state

court to notify the girl's parents that she sought a judicial bypass, 9 1la-

92a.

5

best interest of the minor, Bellotti IJ, 443 U.S. at 640.

99 S. Ct. at 3046-47, and that complete anonymity is

not required, [Ohio v. Akron Ctr. for Reprod. Health,

497 U.S. 502, 513 (1990) (Akron II)], the Court has

not held that anonymity may give way to parental

notification in bypass statutes.

36a.

In response to the court of appeals’ decision, the

Louisiana Legislature enacted further amendments to the

parental consent law in 1997. 107a-113a (“1997

Amendments”). The 1997 Amendments changed the “may”

language back to “shall,” curing the impermissible delegation

of discretion to bypass judges. 110a. The 1997

Amendments also remedied the expediency problems of the

1995 Amendments by setting forth specific time periods

within which the court must rule on a minor’s application

and within which counseling and evaluation reports must be

filed with the court. 108a-111la. With respect to the parental

notification provision, however, the legislature made no

change from the language of the 1995 Amendments,

explicitly noting its “intention . . . to preserve the language of

R.S. 40:1299.35.5 (B)(5) for appeal to the United States

Supreme Court of [Causeway Medical Suite v. leyoub).”

1 13a.

Subsequent to the passage of the 1997 Amendments, the

parties entered into a stipulation, filed with the court of

appeals, that “the Court may enter an order enjoining

enforcement of the Parental Notification Provision, as

amended by the 1997 Amendments, (La. R.S.

40:1299.35.5(B)(5)), until such time, if ever, as the

permanent injunction entered in this case against

enforcement of the Parental Notification Provision, as

amended by Act 1254, is reversed or vacated.” The

stipulation expressed the parties’ understanding that any

further judicial review in this case would involve

6 -

consideration of Louisiana’s parental consent law as

amended by the 1997 Amendments. See Tully v. Mobile Oil

Corp., 455 U.S. 245, 247 (1982) (“The normal rule in a civil

case is that we judge it in accordance with the law as it exists

at the time of our decision.”). See also Fusari v. Steinberg,

419 U.S. 379, 387 (1975) (Supreme Court must review lower

court decision in light of existing law, not the law in effect at

time judgment was rendered); Diffenderfer v. Central Baptist

Church of Miami, Fla., Inc., 404 U.S. 412, 414 (1972)

(same); Hall v. Beals, 396 U.S. 45, 48 (1969) (same); United

States v. Alabama, 362 U.S. 602, 604 (1960) (same).

REASONS FOR DENYING THE WRIT

The petition for certiorari should be denied because the

State has failed to establish any of the factors that weigh in

favor of a grant of certiorari. First, the decision of the court

below is not “in conflict with the decision of another United

States court of appeals on the same important matter,” Sup.

Ct. R. 10(a); nor did the court below decide “an important

federal question in a way that conflicts with relevant

decisions of this Court.” Sup. Ct. R. 10(c). Further, no

important question of federal law is raised by this case that

has not been, but should be settled by the Court. Jd.

Accordingly, the petition should be denied.

I. QUESTION ONE OF THE PETITION

ESTABLISHES NONE OF THE FACTORS

WEIGHING IN FAVOR OF A GRANT OF

CERTIORARI.

The lower court’s ruling on the merits of this case fully

accords with the controlling parental involvement decisions

of this Court and the courts of appeals. Accordingly,

question one of the petition does not provide a basis for this

Court’s grant of certiorari.

This Court has repeatedly held that while states may

attempt to require young women to obtain the consent of

7

their parents in a decision to terminate a pregnancy, parental

consent cannot be mandated in every circumstance. Rather,

abortion laws mandating parental consent must contain an

alternative method by which the young woman can seek

authorization for the abortion without parental involvement.

Bellotti Il, 443 U.S. at 643. See also Lambert v. Wicklund,

117 S. Ct. 1169, 1171 (1997). This alternative bypass

procedure is necessary to ensure the privacy rights of all

young women, including young women who cannot seek

parental consent for abortion. See Bellotti II, 443 U.S. at

642-43. Such young women include those in abusive

families, who are entitled to avoid parental involvement

completely. See Hodgson v. Minnesota, 497 U.S. 417, 460

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

the judgment in part) (condemning Minnesota abuse

exception as “in reality, a means of notifying the parents”).

Without such a bypass, a parental consent law would

delegate unconstitutional “veto power” over a young

woman's abortion decision to her parent or guardian. See

Bellotti II, 443 U.S. at 644.

The alternative bypass procedure in a constitutional

parental consent law must meet four criteria, established in

Bellotti II and applied consistently in all this Court’s

subsequent cases. The procedure must:

(i) allow the minor to bypass the consent requirement

if she establishes that she is mature enough and well

informed enough to make the abortion decision

independently; (ii) allow the minor to bypass the

consent requirement if she establishes that the

abortion would be in her best interests; (iii) ensure the

minor’s anonymity; and (iv) provide for expeditious

bypass

Lambert, 117 S. Ct. at 1171 (setting forth principles

established in Bellotti IJ). See also Planned Parenthood v.

8

Casey, 505 U.S. 833, 899 (1992); Akron II, 497 U.S. at 511-

514.

The anonymity required of the bypass procedure is

designed to protect both the young woman’s interest in

avoiding parental involvement and her broader interest in

avoiding disclosure of intensely private information to the

public. See Akron II, 497 U.S. at 513 (bypass must “take[]

reasonable steps to prevent the public from learning of the

minor’s identity”); Whalen v. Roe, 429 U.S. 589, 599 (1977)

(right of privacy includes “the individual interest in avoiding

disclosure of personal matters”).

In particular, Bellotti I] explicitly requires that if a court

finds that the minor is mature or that the abortion is in her

best interests, the court must authorize the abortion without

requiring any parental involvement. Bellotti II, 443 U.S. at

647-48 (if the minor is mature, “the court must authorize her

to act without parental consultation or consent”; and if the

abortion is in the immature minor’s best interests, “she is

entitled to court authorization without any parental

involvement”). Indeed, one of the chief reasons this Court

invalidated the Massachusetts parental consent law in Bellotti

II was because the Massachusetts Supreme Judicial Court

had construed the statute as requiring parental involvement.

Bellotti IT, 443 U.S. at 646-47 (“an available parent must be

given notice of any judicial proceedings brought by a minor

to obtain consent for an abortion’’) (footnote omitted).

Furthermore, the bypass mechanism in any parental

involvement statute must not itself give notice to the minor’s

parents. Hodgson, 497 U.S. at 460 (O’Connor, J.,

concurring) (Minnesota’s statutory “bypass” for abused and

neglected minors inadequate because it could result in notice

to parents); Akron v. Akron Ctr. for Reproductive Health, 462

U.S. 416, 441 n.31 (1983) (Akron J).

In contravention of both Hodgson and Bellotti II,

Louisiana’s parental consent law permits a juvenile court

Lo

9

judge to breach a young woman’s confidentiality by

notifying both her parents, against her will, that she is

pregnant and seeking an abortion. La. Rev. Stat. Ann. §

40:1299.35.5(B)(5) (“If the court finds that it is in the

minor’s best interest to notify her parents or guardian, the

court shall so notify and reconvene the proceedings within

forty-eight hours with the parents or guardian present to

advise and counsel the minor and aid the court in making its

determination whether or not the abortion would be in the

best interest of the minor.”).3 This statute conflicts with the

anonymity requirement of this Court’s prior decisions in at

least four significant ways.

First, it denies all minors, including mature minors,

access to a judicial bypass proceeding that ensures

confidentiality vis-a-vis the minor’s parents or guardian.

Bellotti IT, 443 U.S. at 647-48. Because a minor cannot be

certain prior to the bypass proceeding that the court will find

that she is mature and that notification is not in her best

interest, every minor risks the possibility that the court will

initiate parental notification with respect to her bypass

application. Unlike any other parental involvement

requirement previously addressed by this Court, Louisiana’s

Statute directs a bypass judge who has found parental

notification to be in an immature minor’s best interest not to

deny the minor’s application, but to undertake the

notification of both the minor’s parents,* regardless of her

3 Because this provision requires the judge to breach the minor’s

confidentiality in direct contravention of the Bellotti I] standards. the

Court cannot presume that the 1997 Amendments will be applied

constitutionally. See Akron I, 462 U.S. at 441 (finding that Akron

parental consent ordinance was not “reasonably susceptible of being

construed to [comport with Bellorti IT]”’).

* There can be no doubt that the statute requires notification by the state

court of both parents, for it uses the plural term “parents” in prescribing

notification, while using the singular “mother or father” in its alternative

of parental consent. Compare La. Rev. Stat. § 40:1299.35.5 (BS) with

La. Rev. Stat. § 40:1299.35.5 (A)(1). Under Louisiana law, the use of

10

wishes.’ La. Rev. Stat. § 40:1299.35.5(B)(5). The statute

contains no exception to this requirement for minors who live

with one custodial parent. Jd. The judge must carry out this

notification prior to determining whether an abortion is in the

minor’s best interest and prior to any appeal. Jd. Thus, even

a minor later held to be mature by a Louisiana court of

appeals faces compelled two-parent notification based on an

erroneous trial court finding that she is immature. This risk

of parental notification by the court will undoubtedly deter

some minors, both mature and immature, from seeking an

abortion.® As Justice O’Connor explicitly recognized in her

controlling opinion in Hodgson v. Minnesota, 497 U.S. at

460, a proposed bypass mechanism “‘is less than effectual”

when that mechanism itself provides notice to the minor’s

parents. (O’Connor, J., concurring) (striking down a two-

parent notification requirement and holding inadequate that

statute’s “abuse exception” which would have resulted in

notice to the minor’s parents).

two different words in the same statute demonstrates the legislature’s

intent to assign different meanings. Opdenwyer v. Brown, 99 So. 482,

484 (La. 1924) (“[W]e cannot assume that when [the authors of our

Code] said two different things, nevertheless they meant only one and the

same”). Cf State v. Muller, 365 So. 2d 464, 466 (La. 1978) (where new

statute is worded differently from preceding statute, legisiature is

presumed to have intended to change the law). The statute also dictates

that the court shail notify the minor’s parents. The legislature’s 1995 and

1997 changes from “shall” to “may,” and then back to “shall” in response

— to this lawsuit, indicate the legislature’s understanding that the term shall

precludes any trial court discretion not to notify the minor’s parents or to

only notify one of those parents.

> A minor may, for example, wish at that point to involveonly her

custodial parent in the bypass proceedings, or to carry thepregnancy to

term without informing either or both of her parents, or totravel to a

jurisdiction that does not require parental involvement.

© Petitioners’ assertion that the parental notice provision cnly affects

immature minors, see e.g., Pet. 8, 10, simply ignores the ceterrent effect

that the risk of notification would have on young women vho are

ultimately found to be mature.

1]

Second, not only does Louisiana’s parental notice

provision run afoul of Belloiti I’'s anonymity requirement

and Justice O’Connor’s opinion in Hodgson, it is not justified

by any legitimate state interest. As the Hodgson Court

recognized, the state has no interest in forcing the minor and

both her parents -- one of whom may well be an estranged,

non-custodial parent or an abuser of the child or the other

parent -- to communicate with one another about the abortion

decision. Hodgson, 497 U.S. at 450-51 (opinion of the

Court). The Hodgson Court found that in “the ideal family

setting,” the state “has no legitimate interest” in requiring

notice to both parents because it may not “question{] one

parent’s judgment that notice to the other parent would not

assist the minor or . . . presume[] that the parent who has

assumed parental duties is incompetent to make decisions

regarding the health and welfare of the child.” Jd. at 450.

With respect to dysfunctional families, the Court held that the

two-parent notification requirement not only failed to serve

any state interest, it actually “disserve[d] the state interest in

protecting and assisting the minor.” Jd. See also id. at 459

(O’Connor, J., concurring) (agreeing with Court’s opinion

“that Minnesota has offered no sufficient justification for its

interference with the family’s decisionmaking processes’’);

id. at 460 (“Given its broad sweep and its failure to serve the

purposes asserted by the state in too many cases, I join the

Court’s striking of [Minnesota’s two-parent notification

requirement without a bypass”). Yet Louisiana’s parental

consent requirement requires that the court notify both

parents, despite the fact that only one of them must consent

to the minor’s abortion, and regardless of the minor’s family

circumstances. La. Rev. Stat. §§ 40:1299.35 (A)(1), (B)(5).

Such two-parent notification “substitut[es the state’s]

conception of family life for the family’s own view,” and is

unconstitutional. Hodgson, 497 U.S. at 452.

Third, Louisiana’s parental consent law violates the right

of privacy of immature minors by permitting a minor’s

12

parents or guardian to participate in the bypass

decisionmaker’s determination of whether an abortion is in

the minor’s best interest. Under Bellotti IJ, an immature

minor is entitled to an independent determination by the

bypass decisionmaker of whether an abortion is in her best

interest. Bellotti II, 443 U.S. at 647-48. If the bypass

decisionmaker finds that the abortion is in the minor’s best

interest, the minor must be permitted to obtain the abortion

without any parental involvement. Jd. Moreover, the state

has no legitimate interest in requiring both of the minor’s

parents to participate together in the decision of whether the

minor’s best interests would be served by seeking an

abortion. Hodgson, 497 U.S. at 450-51. Indeed, such a

requirement violates a single parent’s right to avoid contact

and communication with a non-custodial spouse. Hodgson,

497 U.S. at 451.

Finally, Louisiana’s parental consent law further violates

the right of privacy of immature minors with respect to

whom the court would have made a best interest finding prior

to parental involvement, but does not so find after parental

consultation. Under Louisiana’s parental consent law, a

bypass court must ask whether parental notification is in an

immature minor’s best interest before determining whether

an abortion is in the minor’s best interest. A parental

involvement statute, however, cannot pass constitutional

muster if it places the “notification-in-best-interest” question

ahead of and apart from the “‘abortion-in-best-interest”

question. See Bellotti II, 443 U.S. at 648 (if court determines

that abortion is in best interest of immature minor, “she is

entitled to court authorization without any parental

involvement”). Cf Lambert, 117 S. Ct. at 1172 (parental

notice statute upheld where it did not “permit[] a court to

separate the question whether parental notification is not in a

minor’s best interest from an inquiry into whether abortion

13

(without notification) is in the minor’s best interest”’).”

Accordingly, the court of appeals correctly held that the

bypass procedure in Louisiana’s parental consent law fails to

comply with the standards set forth in this Court’s prior

parental involvement decisions.

In an effort to avoid Bellotti IP’s clear requirement of

anonymity, the petitioners incorrectly claim that Bellotti I]

authorizes a bypass court to notify the parent or guardian of

an immature minor who has applied for a judicial bypass.

See Pet. 8,11, 21.8 Petitioners’ faulty conclusion is based

upon a misreading of the following portion of Bellotti II:

[T]he court may deny the abortion request of an

immature minor in the absence of parental

consultation if it concludes that her best interests

would be served thereby, or the court may in such a

case defer decision until there is parental consultation

in which the court may participate. But this is the full

extent to which parental involvement may be

required.

Bellotti IT, 443 U.S. at 648 (footnote omitted). As the court

of appeals correctly found, 35a-36a, however, this language

stands for the proposition that a court need not immediately

deny the bypass application of an immature minor as to

” Petitioners incorrectly contend that Louisiana’s parental consent law

requires notification only with respect to “immature minors for whom it

is not apparent that the abortion would be in her best interest.” Pet. 17

(emphasis in original). Under the plain language of that statute, however,

if notice is in an immature minor’s best interest, the bypass court cannot

reach the “abortion-in-best-interest” question until after notifying the

young woman’s parents. La. Rev. Stat. 40:1299.35.5 (B)(5).

8 Petitioners also assert that “[t]his Court’s pronouncements on

anonymity do not create a constitutional right for immature minors to

avoid the guidance of their parents.” Pet. 18. In fact, however, Bellotti IJ

makes clear that, at a minimum, an immature young woman has a right to

obtain an abortion without any parental involvement if an abortion is in

her best interest. Bellotti IJ, 443 U.S. at 647-48.

14

whom the court believes an abortion would, under the

relevant circumstances, not be in the minor’s best interest.

See Bellotti IT, 443 U.S. at 648. Instead of denying the

application in those circumstances, the court may defer

resolution of the application until the minor, by her own

choice and of her own accord, notifies her parents of her

pregnancy and involves them in the authorization process.

Id. Thus, the quoted language addresses parental

consultation that takes place after the court’s maturity and

best interest findings are made and only if authorization for

an abortion is not warranted by those findings. As the court

of appeals held:

[T]his language from Bellotti IJ in no way permits the

independent bypass decisionmaker to contact a

minor’s parents, inform them that their minor

daughter is seeking an abortion without their consent,

and then ask the parents to participate in the process

of deciding whether the abortion would be in the

minor’s best interest.

35a. Petitioners’ interpretation of the quoted language would

completely eviscerate the rule of anonymity established in

Bellotti II.9

9 In a futile attempt to argue that Louisiana’s parental consent law

somehow meets Bellotti I's anonymity requirement, Pet. 20-22,

petitioners also misread the statement in Bellotti IJ, 443 U.S. at 648, that

“the constitutional right to seek an abortion may not be unduly burdened

by state-imposed conditions upon initial access to court.” Although the

Court clearly used the term “initial” to refer to the minor’s access to the a

bypass proceeding prior to resort to her parents, see id at 647-48,

petitioners erroneously rely upon this language to argue that Bellotti J/'s

anonymity requirement is limited only to the minor’s first step in

pursuing judicial authorization for an abortion, see Pet. 21. Petitioner’s

interpretation finds no support in Bellotti I] and ignores the fact that if a

minor’s anonymity is threatened at any stage of the bypass procedure, her

willingness and freedom to gain initial access to that procedure will be

hindered. Second, by misconstruing the term “public” in Akron IT, 497

U.S. at 513, petitioners erroneously rely on that case for the proposition

15

Equally unpersuasive is petitioners’ attempt to sidestep

the constitutional infirmities of Louisiana’s parental consent

law by claiming that this case involves parental notice rather

than consent, and that parental notice laws need not contain a

Bellotti II -type bypass. See, e.g., Pet. 12-13 (citing HL. v.

Matheson, 450 U.S. 398 (1981)), 16, 18 (citing Hodgson, 497

U.S. 417). Unlike Hodgson and Matheson, this case

addresses a parental consent law, not simply a requirement of

parental notice. As such, it must meet the requirements of

Bellotti II. See Bellotti II, 443 U.S. at 648 (discussing the

“full extent” of parental involvement permitted in connection

with consent statutes).'° Petitioners’ implication that a

that anonymity need be maintained only as to the public, and, thus, not as

to a minor’s parents. Pet. 22. As the Court’s discussion in Akron IJ

makes clear, the Court utilized that word not to distinguish between

persons known and unknown to the minor, but between persons

responsible for the internal administration of the courts and all other

persons, including the minor’s parents.

10 Even if Louisiana’s parental consent law were construed as a

notification requirement, it would not survive constitutional scrutiny.

Although this Court has left open the question of whether a parental

notification law requires a Bellotti I] -type bypass, Akron II, 497 U.S. at

510, Justice O’Connor’s controlling opinion in Hodgson recognized that

a proposed “bypass mechanism” that might itself cause parental notice is

impermissible even in the parental notification context. Hodgson, 497

U.S. at 460 (O’Connor, J., concurring) (rejecting suggestion that abuse

and neglect exception provided adequate protection for minors who did

not want to notify their parents). See also Planned Parenthood v. Miller.

63 F.3d 1452, 1460-63 (8th Cir. 1995), cert. denied, 116 S. Ct. 1582

(1996) (rejecting contention that abuse and neglect exception could

provide adequate protection for minors seeking to avoid parental

notification). This Court has also properly recognized, with respect to

married women, that husband notification and husband consent are

essentially equivalént. Casey, 505 U.S. at 897. Moreover, the federal

courts have repeatedly invalidated parental notification requirements that

do not contain an anonymous, expeditious bypass procedure permitting a

mature minor or a minor for whom an abortion is in her best interest to

obtain an abortion without any parental involvement. Miller, 63 F.3d at

1460 (“parental-notice provisions, like parental-consent provisions, are

unconstitutional without a Bellotti-type bypass”); Glick v. McKay, 937

16

consent requirement need not meet the Bellotti I

requirements if it a/so contains a notification requirement is

absurd.

Because the decision of the court below correctly

applies the controlling standards set forth in Bellotti I] and its

progeny, it neither creates a conflict with the decisions of this

Court or the courts of appeals nor presents an important

question of federal law that has not been, but should be,

addressed by this Court. Sup. Ct. R. 10 (a), (c).!'

Accordingly, the petition should be denied.

F.2d 434 (9th Cir. 1991) (applying the same standards applicable to a

judicial bypass for a parental consent statute to strike down a Nevada

parental notice law); Jndiana Planned Parenthood v. Pearson, 716 F.2d

1127, 1132 (7th Cir. 1983) (construing Supreme Court precedent to

require “that states provide bypass procedures in connection with both

consent and notification statutes”). See also Zbaraz v. Hartigan, 763

F.2d 1532, 1539 (7th Cir. 1985) (the Bellotti IJ standard “also governs

provisions requiring parental notification”), aff'd by an equally divided

Court, 484 U.S. 171 (1987); Women’s Community Health Ctr., Inc. v.

Cohen, 477 F. Supp. 542, 546-48 (D. Me. 1979) (issuing preliminary

injunction against enforcement of Maine parental notification statute

because “‘it fails to meet the constitutional standard defined in Mr. Justice

Powell’s opinion” in Bellotti IN); 75 Op. Atty. Gen. Md. 14, 1990 Md. AG

LEXIS 46, at *22 (Aug. 30, 1990) (concluding, in wake of Akron II, that

“Until the Supreme Court clearly enunciates a new rule of law, we must

continue to rely on existing precedent indicating that any parental notice

requirement must include a bypass procedure meeting the standards of

Bellotti v. Baird.”). See also Lambert, 117 S. Ct. at 1172 (upholding

parental notification requirement on the grounds that properly construed,

its bypass met the guidelines of Bellotti IJ). Cf Matheson, 450 U.S. at

407 (ruling that requirement of parental notice “if possible” did not

violate rights of an immature minor who “made no claim or showing as to

her maturity or as to her relations with her parents”).

'! Petitioners contend that “the only issue to which this Court’s prior

decisions do not speak is whether the notification of an immature minor’s

parents can be effected by the judge who must determine whether the

abortion is in the immature minor's best interest rather than by a

physician as in traditional parental notification statutes.” Pet. 10. As

explained, supra at 8-11, that question is disposed of by Bellotti I] and

17

Il. QUESTIONS TWO, THREE AND FOUR OF THE

PETITION PROVIDE NO BASIS FOR THIS

COURT’S REVIEW.

A. The Shall/May Issue Decided by the Courts Below

has Become Moot.

Question two of the petition seeks review of the

shall/may issue decided by the courts below. Because the

1995 Amendments provided that judges “may,” rather than

“shall,” grant bypass applications that satisfy the criteria

established in Bellotti IT, the lower courts correctly

determined that such a grant of discretion violated the

constitutional requirements articulated in Bellotti IJ. 20a-

30a; 87a-89a. Subsequent to the court of appeals’ ruling in

the case, however, the Louisiana Legislature passed the 1997

Amendments which replaced the discretionary term “may”

with the mandatory “shall,” rendering moot the shall/may

question raised below. Because that issue is moot, it does not

present a question appropriate for this Court’s certiorari

review. ROBERT L. STERN ET AL., SUPREME COURT

PRACTICE 710 (7th ed. 1993) (“If the controversy becomes

academic by reason of changed circumstances, the Court’s

jurisdiction ceases and the case becomes moot.”); United

States Dep't of Justice v. Provenzano, 469 U.S. 14, 15 (1984)

(law passed during the pendency of the litigation mooted the

question of statutory interpretation as to which certiorari was

granted because no matter how the Court decided the issue,

Hodgson. But, even if that question had not yet been answered, this case

would not provide the Court with an appropriate opportunity to address it

because Louisiana’s parental consent law presents a number of other

infirmities which clearly require its invalidation under existing law.

Thus, petitioners’ question would improperly seek a constitutional

determination unnecessary to resolution of the case. Spector Motor

Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) (“we ought not to

pass On questions of constitutionality . . . unless such adjudication is

unavoidable”).

18

its decision would not have affected the rights of the parties);

Diffenderfer, 404 U.S. at 414 (appeal was moot where a law

passed during the pendency of the litigation repealed the

Statute at issue and replaced it with scheme that at least

limited, if not eradicated, the statutory application

challenged); State of Nevada v. Watkins, 943 F.2d 1080 (9th

Cir. 1991) (legislative action rendered state’s petition

moot).!

Although they concede that “the ‘may’ and ‘shall’

language issue is now moot with the enactment of Senate

Bill 1558 of 1997,” Pet. 23 (emphasis in original), petitioners

still seek a ruling from this Court on whether the kind of

discretion granted by the 1995 Amendments would have been

constitutional. /d. The petitioners’ desire for an advisory

opinion, however, provides no basis for granting certiorari.

Diffenderfer, 404 U.S. at 414 (where statute passed during

pendency of suit repealed statute at issue, the case had “lost

its character as a present, live controversy of the kind that

must exist if we are to avoid advisory opinions on abstract

propositions of law’’).

'2 Thus, this is not a case like Maher v. Roe, 432 U.S. 464, 468 n.4

(1977), where the state’s revision of a challenged law “was made only for

the purpose of interim compliance” with a lower court order. See also

Zablocki v. Redhail, 434 U.S. 374, 382 n.9 (1978) (no mootness where

change in law was contingent upon courts’ ruling on prior laws); Beare v.

Briscoe, 498 F.2d 244, 245 n.5 (Sth Cir. 1974) (same). In this case, the

Louisiana Legislature has unconditionally acted to remedy the shall/may

and expediency issues rather than seek further appellate review of those

matters. 113a(‘“ [T]he purpose of this Act is to remedy the issues

addressed by [the Fifth Circuit’s decision in this case] . . . with the

exception of the [parental notice provision] issue .... [I]t is the intention

of the legislature in this Act to preserve the [parental notice provision

issue] for appeal to the United States Supreme Court .. .”’).

ee

=e

19

B. Jurisdiction of the Lower Courts Over this Case is

Well Established Under Existing Law.

Petitioners’ argument in question three that this Court

and the courts below lack Article III jurisdiction over this

controversy also lacks merit. Whether petitioners have

authority to control Louisiana state court procedures is

irrelevant to the issue before the Court. Respondents do not

seek an injunction against family court operations. Rather,

they seek an injunction against enforcement of La. Rev. Stat.

Ann. § 40:1299.35.5, the Louisiana statute that criminalizes

the provision of abortion services to young women in certain

circumstances. Clearly, the Governor and the Attorney

General of the State of Louisiana have authority to enforce

Louisiana’s criminal laws and can therefore be enjoined from

doing so. See La. Const. Art 4, § 8 (Attorney General is

responsible for enforcing Louisiana laws); La. Const. Art 4, §

5(A) (Governor has legal duty to ensure that the laws of the

state are faithfully executed); Ex parte Young, 209 U.S. 123

(1908) (state officials who have the power to enforce

unconstitutional state laws may be enjoined from enforcing

them). Accordingly, the lower court correctly concluded on

the basis of existing law that this case presents a justiciable

controversy.

C. Question Four of the Petition was Not Decided by

the Courts Below.

Petitioners’ fourth question improperly invites this Court

to undertake a wholesale review of its entire body of abortion

jurisprudence, the vast majority of which was not considered

in the decisions below. As discussed in Section I, supra, this

case is governed by discrete and well-established precedents

that govern parental involvement laws. It is difficult, if not

impossible, to imagine how this case, which requires no new

interpretation or expansion of established constitutional

principles, could present the Court with an appropriate

opportunity for delving into the very basis and scope of a

20

woman’s right to choose an abortion. At a minimum,

because these issues were not ruled on by the courts below,

they provide no basis for the grant of certiorari. Sup. Ct. R.

10 (c). !5

'3 Petitioners have not sought review of the Salerno/Casey question

addressed in a number of lower federal court decisions. See Casey, 505

U.S. at 895 (suggesting that an abortion law is facially invalid if “in a

large fraction of the cases in which [the law] is relevant, it will operate as

a substantial obstacle to a woman’s choice to undergo an abortion’’);

United States v. Salerno, 481 U.S. 739, 745 (1987) (in a facial challenge,

“the challenger must establish that no set of circumstances exists under

which the Act would be valid”). Compare, e.g., Miller, 63 F.3d at 1456-

58 (Casey standard displaced Salerno standard for facial challenges);

Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (rejecting

applicability of Salerno), cert. denied, 117 S. Ct. 2453 (1997); Casey v.

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

(the Supreme Court “set a new standard for facial challenges to pre-

viability abortion laws”); Women’s Medical Prof’l Corp. v. Voinovich,

911 F. Supp. 1051, 1062 (S.D. Ohio 1995) (“this Court declines to apply

Salerno to the challenged [abortion] regulations in this case”), appeal

docketed, Nos. 96-3157 & 96-3159 (6th Cir. Feb. 8, 1996); A Woman’s

Choice-East Side Women’s Clinic v. Newman, 904 F. Supp. 1434, 1447-

48 (S.D. Ind. 1995) (“this court believes that Casey effectively displaced

Salerno’s application to abortion laws”), appeal stayed, No. 95-3965 (7th

Cir. Jan 22, 1996), with Barnes v. Moore, 970 F.2d 12, 14, n.2 (Sth Cir.),

cert. denied, 506 U.S. 1021 (1992) (Casey did not overrule Salerno). As

both of the lower courts correctly held, resolution of the Salerno/Casey

issue is not necessary to disposition of this case. 15a; 85a n.2.

Louisiana’s parental consent law fails to pass constitutional muster even

under the stricter Salerno standard for the challenged statute denies all

minors seeking a court bypass access to an anonymous and independent

bypass procedure. See supra at 8-9. Thus, it does not present a clear case

for resolution of this question. See Janklow v. Planned Parenthood, 116

S. Ct. 1582, 1583 (1996) (Stevens, J., respecting denial of certiorari).

CONCLUSION

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

certiorari should be denied.

Dated:

September 10, 1997.

Respectfully submitted,

JANET BENSHOOF

(Counsel of Record)

KATHRYN KOLBERT

BONNIE SCOTT JONES

SIMON HELLER

The Center for

Reproductive Law &

Policy

120 Wall Street

New York, NY 10005

(212) 514-5534

WILLIAM RITTENBERG

715 Girod Street

Suite 200

New Orleans, LA 70130

(504) 524-5555