Causeway Medical Suite v. Ieyoub

• Decision Date: 23 September 1997
• Docket Number: No. 95-31178,95-31178
• Citation: 123 F.3d 849
• Parties: 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, State of Louisiana; Michael J. Foster, Jr., Governor, State of Louisiana; Bobby P. Jindal, Secretary of the Louisiana Department of Health and Hospitals; Madlyn B. Bagneris, Secretary of the Louisiana Department of Social Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 849

123 F.3d 849

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, State of Louisiana;

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

P. Jindal, Secretary of the Louisiana Department of Health

and Hospitals; Madlyn B. Bagneris, Secretary of the

Louisiana Department of Social Services, Defendants-Appellants.

No. 95-31178.

United States Court of Appeals, Fifth Circuit.

Sept. 23, 1997.

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 and American Medical Women's Association, Amicus Curiae.

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

Appeal from the United States District Court for the Eastern District of Louisiana; Marcel Livaudais, Jr., Judge.

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

PER CURIAM:

Prior report: 109 F.3d 1096.

A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor, rehearing en banc is DENIED.

EDITH H. JONES, Circuit Judge, joined by JOLLY, HIGGINBOTHAM, SMITH, BARKSDALE, EMILIO M. GARZA ^* and DeMOSS, Circuit Judges, dissenting from the denial of rehearing en banc:

The panel majority overturned the judicial bypass provision of Louisiana's law governing parental consent for a minor's abortion, because they believe a pregnant immature minor has the absolute right to decide whether her parents may be notified of her predicament. ¹ As a consequence, the panel majority held that the bypass court, which must determine if the abortion is in the minor's best interest, may not consult with the parents if the immature minor objects. Further, even if the court believes parental notification would be in the minor's best interest, it may neither act on that belief nor decide the ultimate advisability of an abortion until the minor permits notification. The panel have unblushingly elevated the immature minor's "right" to keep her parents in the dark above her right to a prompt decision, above the court's need for accurate information about her, and above traditional compelling parental and family interests. Because it is plain to me that this unwise decision is contrary to applicable Supreme Court precedent, we dissent from the denial of en banc rehearing. ²

An explanation of the panel's errors must begin with the relevant portions of the Louisiana law governing parental consent and judicial bypass of the consent requirements for a minor's abortion:

(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 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 48 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.

(6) If the court finds that the minor is not competent to make the decision concerning the abortion or that it 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 interest of the minor.

La.R.S. 40:1299.35.5(B)(5) and (6). These provisions were enacted with an eye toward the Supreme Court's decision in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). In Bellotti II, the Court stated that statutes requiring parental consent to a daughter's abortion will be upheld if they contain an adequate procedure for judicial bypass of the consent requirement. The bypass procedure, to pass Supreme Court muster, must authorize the court to determine whether the girl is mature enough to make the decision for an abortion on her own or, if not, whether the abortion is nevertheless in her best interest. A court makes the independent "best interest" decision only after it finds that the minor is immature or not well informed.

This case concerns the application of Louisiana's bypass provision to immature pregnant girls. Louisiana requires the court in such a case to ascertain whether parental notification is in the girl's best interest and if it is, to convene the parents for consultation within 48 hours and then promptly decide the abortion issue.

The conditional obligation to notify parents without the girl's consent is what the panel majority find objectionable. The panel decision holds that Bellotti II requires the judicial bypass procedure to be totally anonymous as to the parents, insulated from their input or consultation except at the minor's instigation. The panel states:

If Bellotti II 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.... [T]he Court has not held that anonymity may give way to parental notification in bypass statutes.

Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th Cir.1997). The panel explains its concern about parental involvement in the judicial bypass proceeding as follows:

The central thrust of Bellotti II was to insure that minors who could not or would not seek the consent of a parent or legal guardian have access to a bypass procedure that would insure anonymity from parents who may "obstruct both an abortion and their access to court." Bellotti II, 443 U.S. at 647, 99 S.Ct. at 3050. By requiring a juvenile court judge to notify a minor's parents if the judge finds that doing so would be in the minor's best interest, Louisiana has undermined the independent bypass procedure prescribed in Bellotti II.

Causeway, 109 F.3d at 1112.

Unfortunately, this conclusion reflects a fundamental misunderstanding of Bellotti II and subsequent Supreme Court cases concerning the permissible scope of parental involvement in the abortion decision.

While the Court has held that minors who are sufficiently mature and well-informed must be permitted to obtain abortions, it has also upheld statutes requiring parental consent on the basis that they preserve and protect the integrity of family life. These two seemingly irreconcilable policies are satisfied by statutory procedures that allow a minor to bypass parental consent with a prompt judicial decision. When, under Bellotti II, a pregnant girl seeks court authorization rather than parental consent, the court first decides whether she is sufficiently mature to make the abortion decision on her own. ³ If the court cannot so conclude, the girl "must be permitted to show that an abortion nevertheless would be in her best interest. If the court is persuaded that it is, the court must authorize the abortion." Bellotti II, 443 U.S. at 647-48, 99 S.Ct. at 3050. It necessarily follows that if the court finds that the girl is not mature or that the abortion would not be in her best interest, it may decline to authorize the procedure. Id.

A judicial bypass prevents the parents from exercising "an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy...." Id. at 643, 99 S.Ct. at 3048. The "anonymity" of the proceeding protects the minor's initial access to court. Thus, the Bellotti II Court quoted with approval the finding of the district court that "there are parents who would obstruct, and perhaps altogether prevent, the minor's right to go to court." Id. at 647, 99 S.Ct. at 3050 (internal citation omitted). The Court continued:

[E]very minor must have the opportunity--if she so desires--to go directly to a court without first consulting or notifying her parents.

Id. Bellotti II concluded, "[T]he constitutional right to an abortion may not be unduly burdened by state-imposed conditions upon initial access to court." Id. at 648, 99 S.Ct. at 3051 (emphasis added).

Notwithstanding Bellotti II 's emphasis on confidentiality to enable the minor to go to court, the Causeway panel majority derive a much broader constitutional principle from Bellotti II: that the immature minor has an inviolable right to confidentiality from her parents during the bypass proceeding. ⁴ They hold that Louisiana's requirement of parental notification in the immature minor's best interest is unenforceable. As a result, the bypass court may not act on its insight into the immature minor's needs by notifying her parents unless she consents. And going further, the panel holds, if the immature girl exercises her veto power, the court is at a standstill--it may not act on her bypass request when she refuses to consent to needed parental notification. The girl will be denied an abortion decision unless she changes her mind on parental notification, see Causeway, 109 F.3d at 1112, but she may change it too late.

If this were the constitutional requirement after Bellotti II, it would make no sense in terms of the policy behind the consent/bypass decisions of the Supreme Court. Judicial bypass proceedings must facilitate decisions...