659 F.2d 476 (5th Cir. 1981), 80-5023, Scheinberg v. Smith

Docket Nº:80-5023.
Citation:659 F.2d 476
Party Name:Mark N. SCHEINBERG, M.D., on his behalf and on behalf of all others similarly situated, Plaintiff-Appellee, v. James C. SMITH, Attorney General of Florida and Michael J. Satz, State Attorney, Seventeenth Judicial Circuit, Florida, Defendants-Appellants.
Case Date:October 02, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 476

659 F.2d 476 (5th Cir. 1981)

Mark N. SCHEINBERG, M.D., on his behalf and on behalf of all

others similarly situated, Plaintiff-Appellee,

v.

James C. SMITH, Attorney General of Florida and Michael J.

Satz, State Attorney, Seventeenth Judicial

Circuit, Florida, Defendants-Appellants.

No. 80-5023.

Unit B [*]

United States Court of Appeals, Fifth Circuit

October 2, 1981

Page 477

[Copyrighted Material Omitted]

Page 478

Gerald B. Curington, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for defendants-appellants.

Bruce S. Rogow, Fort Lauderdale, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, HATCHETT and THOMAS A. CLARK, Circuit Judges.

TJOFLAT, Circuit Judge:

This is an appeal of a district court determination that certain of Florida's statutory provisions, Fla.Stat.Ann. § 390.001(4)(a) & (b) (West 1981) (previously codified as part of the Medical Practice Act, see Fla.Stat.Ann. § 458.001 et seq. (West 1977)), unconstitutionally burden a woman's fundamental right of privacy in the abortion decision. We affirm the district court in part, vacate in part and remand for further proceedings.

I

In 1979 the Florida Legislature enacted the Medical Practice Act, which included a provision regulating abortions; relevant here are those subsections governing abortions sought by unmarried minors and by married women. Subsection 4(a), Fla.Stat.Ann. § 390.001(4)(a) (West 1981), establishes that in order to obtain an abortion, an unmarried minor must have "either the written informed consent of a parent, custodian, or legal guardian or an order from the Circuit Court." Scheinberg v. Smith, 482 F.Supp. 529, 532 (S.D.Fla.1979). In full, subsection 4(a) reads

(4) Prior to terminating a pregnancy, the physician shall obtain the written informed consent of the pregnant woman or, in the case of a mental incompetent, the written consent of the court-appointed guardian.

(a) If the pregnant woman is under 18 years of age and unmarried, in addition to her written request, the physician shall obtain the written informed consent of a parent, custodian, or legal guardian of such unmarried minor, or the physician may rely on an order of the circuit court, on petition of the pregnant unmarried minor or another person on her behalf, authorizing, for good cause shown, such termination of pregnancy without the written consent of her parent, custodian, or legal guardian. The cause may be based on a showing that the minor is

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sufficiently mature to give an informed consent to the procedure, or based on the fact that a parent unreasonably withheld consent by her parent, custodian, or legal guardian, or based on the minor's fear of physical or emotional abuse if her parent, custodian, or legal guardian were requested to consent, or based upon any other good cause shown. At its discretion the court may enter its order ex parte. The court shall determine the best interest of the minor and enter its order in accordance with such determination.

Fla.Stat.Ann. § 390.001(4)(a) (West 1981).

Subsection 4(b) requires "a wife who is neither 'separated or estranged' (to) furnish her husband with notice of the proposed abortion and (to) allow him the opportunity to consult with her concerning the procedure," Scheinberg, 482 F.Supp. at 532, and reads

(b) If the woman is married, the husband shall be given notice of the proposed termination of pregnancy and an opportunity to consult with the wife concerning the procedure. The physician may rely on a written statement of the wife that such notice and opportunity has been given, or he may rely on the written consent of the husband to the proposed termination of pregnancy. If the husband and wife are separated or estranged, the provisions of this paragraph for notice or consent shall not be required. The physician may rely upon a written statement from the wife that the husband is voluntarily living apart or estranged from her.

Fla.Stat.Ann. § 390.001(4)(b) (1981). The Medical Practice Act also provides that "(a)ny person who willfully performs, or participates in, the termination of a pregnancy in violation of the requirements of this section is guilty of a felony ...". Fla.Stat.Ann. § 390.001(10) (West 1981).

Soon after the Act was passed, Dr. Mark Scheinberg, under the pseudonym of John Jones, M.D., filed this class action complaint against the state officers charged with enforcement of the Act, seeking declaratory and injunctive relief on the grounds that the Act abridged the constitutional right to privacy in the abortion decision. The parties stipulated that Dr. Scheinberg, as a licensed physician who performs abortions in Florida, had standing to maintain this action on behalf of "all unmarried, minor pregnant women desiring to terminate their pregnancies, and their physicians; and ... all married pregnant women desiring to terminate their pregnancies, and their physicians." Scheinberg, 482 F.Supp. at 532 n.7. See also Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

On July 10, 1979, the district court held an initial hearing to consider the plaintiff's application for preliminary relief. After that hearing the court, on the strength of Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II), preliminarily enjoined the defendants from enforcing section 458.505(4)(a) of the Act, now section 390.001(4)(a), regulating a minor's access to an abortion. The court found, however, that the plaintiff had not demonstrated a substantial likelihood of prevailing on the merits of his claim concerning the spousal notice provision, section 458.505(4)(b), now section 390.001(4)(b), and accordingly refused to enjoin the enforcement of that provision. Jones v. Smith, 474 F.Supp. 1160 (S.D.Fla.1979).

In September of 1979, the district court held a final hearing on the plaintiff's request for declaratory and permanent injunctive relief from the operation of subsection (4)(a) and (b). The court reaffirmed its earlier finding that subsection 4(a) impermissibly abridged a minor, unmarried woman's right of privacy in the abortion decision, and also held, after reconsideration, that the spousal notice provision, subsection 4(b), was an unconstitutional burden on the abortion decision. Consequently, the court declared each subsection unconstitutional. Scheinberg, 482 F.Supp. at 540. This appeal followed.

The appellants raise several issues concerning the propriety of the district court's ruling. As to the court's invalidation of the

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provision regulating a minor's access to abortion, the appellants "candidly admit that such provision cannot withstand constitutional challenge in light of Bellotti v. Baird " (Bellotti II) if the district court's interpretation of that subsection is upheld. Brief of Appellants at 17. They submit, however, that the district court erred in reaching the matter of statutory construction; they argue that the district court, in the interest of federal-state comity, should have abstained from resolving the question. Alternatively, the appellants assert that this court should avail itself of the certification procedure provided for in Fla.Stat.Ann. § 25.031 (West 1979) to allow the Florida courts to interpret subsection 4(a). See also Fla.Const., art. V § 3(b)(6). If we determine that neither of these courses are appropriate, the appellants contend that Florida law allows severance of the offensive portions of subsection 4(a) in order to save the rest of the subsection from invalidation.

In regard to the spousal notice provision, the appellants' arguments are more direct. That provision, they assert, does not impose an undue burden on a woman's right of privacy in the abortion decision. Any burden it does impose, they allege, is justified by the compelling state interests furthered by the statute.

II

A

We shall not belabor the constitutional question section 390.001(4)(a) presents, as the Supreme Court has resolved that issue. In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), the Court held that a state may require, alternatively, parental consent or judicial authorization before allowing an unmarried minor to secure an abortion. The Court specified, however, that judicial authorization must be given if the minor "satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own," id. at 647, 99 S.Ct. at 3050, or if, absent this showing, the court determines that the abortion would nevertheless be in the minor's best interest. Id. at 647-48, 99 S.Ct. at 3050.

As we read subsection 4(a), its last sentence, "(t)he court shall determine the best interest of the minor and enter its order in accordance with such determination" (emphasis added), mandates that a Florida court base its authorization of a minor's abortion on what it finds to be the best interests of the minor, without regard to the minor's maturity. Thus, the provision runs directly afoul of Bellotti II, for "it permits judicial authorization for an abortion to be withheld from a minor who is found by the ... court to be mature and fully competent to make this decision independently." Bellotti II at 651, 99 S.Ct. at 3052. If we reach the merits of plaintiff's claim, therefore, it is clear that subsection 4(a) must fall. Faced with this prospect, the appellants argue that a proper exercise of discretion, see Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), requires the federal courts to abstain from resolving the merits of this claim.

Pullman abstention is appropriate when a statutory provision, as yet unconstrued by the relevant state court of last resort, is sufficiently ambiguous or uncertain to allow...

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