# Opposition Brief — Ieyoub v. Causeway Medical Suite

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 943

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1063%3A2. Public record. Not legal advice.