109 F.3d 1096 (5th Cir. 1997), 95-31178, Causeway Medical Suite v. Ieyoub

Docket Nº:95-31178.
Citation:109 F.3d 1096
Party Name:CAUSEWAY MEDICAL SUITE; Hope Medical Group for Women, on behalf of themselves and the patients they serve, Plaintiffs- Appellees, v. Richard P. IEYOUB, Attorney General of the State of Louisiana, Michael J. Foster, Jr., Governor, State of Louisiana, Bobby P. Jindal, Secretary of the Louisiana Department of Health and Hospitals, and Madlyn B. Bagner
Case Date:April 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1096

109 F.3d 1096 (5th Cir. 1997)

CAUSEWAY MEDICAL SUITE; Hope Medical Group for Women, on

behalf of themselves and the patients they serve,

Plaintiffs- Appellees,

v.

Richard P. IEYOUB, Attorney General of the State of

Louisiana, Michael J. Foster, Jr., Governor, State of

Louisiana, Bobby P. Jindal, Secretary of the Louisiana

Department of Health and Hospitals, and Madlyn B. Bagneris,

Secretary of the Louisiana Department of Social Services,

Defendants-Appellants.

No. 95-31178.

United States Court of Appeals, Fifth Circuit

April 14, 1997

Page 1097

[Copyrighted Material Omitted]

Page 1098

Eve C. Gartner, Kathryn Bernard Kolbert, Center for Reproductive Law & Policy, New York City, William E. Rittenberg, New Orleans, LA, for Plaintiffs-Appellees.

Roy A. Mongrue, Jr., Asst. Atty. General, Thomas S. Halligan, Asst. Atty General, Baton Rouge, LA, for Defendants-Appellants.

Dorinda C. Bordlee, Metairie, LA, for Louisiana Lawyers for Life, Amicus Curiae.

John H. Henn, Foley, Hoag & Eliot, Boston, MA, for American Public Health Association, American Medical Women's Association, Amici Curiae.

Robin Elise Schulberg, American Civil Liberties Union Foundation of Louisiana, New Orleans, LA, for American Civil Liberties Union Foundation of Louisiana, Amicus Curiae.

Page 1099

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

We must decide whether certain provisions of Act 1254 (codified at La. R.S. 40:1299.35.5 (West Supp.1996)), which changed Louisiana's judicial bypass procedure for minors seeking abortions, comports with the Due Process Clause of the Fourteenth Amendment. We hold that it does not and affirm the district court's summary judgment which permanently enjoined La. R.S. 40:1299.35.5(B).

LEGISLATIVE BACKGROUND

In Louisiana, minors under the age of eighteen must obtain the consent of at least one parent or legal guardian before a physician has the legal authority to perform an abortion. La. R.S. 40:1299.35.5(A) (West 1992). However, a physician may perform the abortion without the consent of a parent or legal guardian if the minor exercises her rights under a judicial bypass procedure prescribed in La. R.S. 40:1299.35.5(B). Section 1299.35.5(B) has, since 1978, undergone changes. Because this appeal largely turns on the 1995 changes to § 1299.35.5(B), we believe that a brief review of the legislative history of § 1299.35.5(B) sheds valuable light on the issues before us.

  1. The 1978 Version of La. R.S. 40:1299.35.5(B)

    We begin in 1978, when the Louisiana Legislature enacted La. R.S. 40:1299.35.5 (the 1978 Act), which, among other things, regulated the circumstances under which minors could obtain abortions. Notably, the 1978 Act, while providing for a judicial bypass, gave little (if any) guidance to courts faced with minors seeking abortions. Subsection (A) of the 1978 Act, titled "Notice and consent," provided that the parents or legal guardian of a minor under eighteen must receive actual notice twenty-four hours before the minor had an abortion or, if the parent or legal guardian could not be reached, that parent or legal guardian must receive constructive notice seventy-two hours before the abortion. The sole exception to these parental notification requirements was a bare-bones judicial bypass provision, which stated simply "unless the abortion is ordered by a court having jurisdiction over such minor pregnant woman." Subsection (B) provided that if the minor was under the age of fifteen, she must obtain informed, written consent from a parent or legal guardian or "obtain[ ] an order from a court having jurisdiction over her that the abortion be performed or induced." Neither subsection (A) nor (B) provided any criteria that must be met before a judge could, without any notice to the parent(s) or legal guardian(s), order a minor to have an abortion.

    Then, in 1979, the Supreme Court handed down Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ), in which a plurality of the Court set forth the standards that should govern the judicial bypass procedure for minors seeking abortions. Recognizing the parent-child tension that may accompany a minor's wish to have an abortion, the Court held that a minor may seek an order from a court, without the consent or notification of a parent or legal guardian, that authorizes the procedure. Id. at 646-48, 99 S.Ct. at 3049-51. In particular, the Court held:

    If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion.

    Id. at 647-48, 99 S.Ct. at 3050 (emphasis added). Approximately eight months after Bellotti II was decided, Louisiana's skeletal judicial bypass provision was struck down as inconsistent with Bellotti II. In Margaret S. v. Edwards, 488 F.Supp. 181, 203 (E.D.La.1980) (Margaret S. (I) ), the district court held: "This section [§ 1299.35.5(B) ] says

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    nothing more than the pregnant minor may receive an order from a 'court having jurisdiction over her that the abortion be performed or induced.' This is not enough.... La.Rev.Stat.Ann. § 40:1299.35.5(B) sets forth no standards or guidelines for the minor seeking judicial approval for abortion."

  2. The 1980 and 1981 Versions of La. R.S. 40:1299.35.5(B)

    In 1980, the Louisiana Legislature responded to Margaret S. (I) and, among other things, changed La. R.S. 40:1299.35.5(B) to comply with Bellotti II. Most importantly for purposes of this appeal, the new statute contained the mandatory language from the Bellotti II decision. La. R.S. 40:1299.35.5(B) provided in part: "The court shall authorize the abortion only if the court finds that the woman is sufficiently mature and well-informed to make an intelligent decision on her own concerning the abortion, or, if the court finds that regardless of the capacity of the woman to make the decision, the abortion would be in her best interest." (Emphasis added). The 1980 version also included an expediency clause: "Such applications shall be heard summarily and expeditiously and shall take precedence over matters on the docket of the court." (Emphasis added).

    In 1981, Louisiana modified its abortion statute, beginning with a general statement of legislative intent. Section 1299.35.0 (West 1992) provided in part: "It is the intention of the Legislature of the State of Louisiana to regulate abortion to the extent permitted by decisions of the United States Supreme Court." In 1981, the legislature also refined and expanded § 1299.35.5(B), and the pertinent sections read as follows:

    (3) Each application shall be heard in chambers, confidentially, in a summary manner, and within forty-eight hours of the filing thereof.

    (4) If the court finds that the minor is sufficiently mature and well enough informed to make the decision 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 the 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.

    (Emphasis added). Subsections (4) and (5) parsed out the "maturity and well-informed" provision and the "best-interests-of-the-minor" inquiry. As with the 1980 version, the 1981 version of § 1299.35.5(B) retained the mandatory "shall" language. However, the word "expeditiously" was removed and a forty-eight hour time frame for hearing a minor's application was imposed. With these new changes in place, § 1299.35.5(B) survived a constitutional attack the next time around. See Margaret S. v. Treen, 597 F.Supp. 636, 650-52 (E.D.La.1984) (Margaret S. (II) ), aff'd on other grounds sub nom. Margaret S. v. Edwards, 794 F.2d 994 (5th Cir.1986). 1

  3. Act 1254--The 1995 Version of La. R.S. 40:1299.35.5(B)

    And so it was for fourteen years. In 1995, however, the Louisiana Legislature went back to the drawing board with Act 1254, which expanded and changed § 1299.35.5(B) to read in part:

    (3) Each application shall be heard in chambers, anonymously, in a summary manner, and within forty-eight hours of the filing thereof.

    (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 from the Department

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    of Health and Hospitals, office of mental health, and a staff member from the Department of Social Services, office of community services. The court may refer the petitioner, if necessary, to the appropriate Department of Health and Hospitals, office of mental health regional office to arrange the evaluation and counseling session within forty-eight hours of the ex parte hearing, excluding legal holidays.

    (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 of the minor to...

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