Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson

• Decision Date: 26 August 1983
• Docket Number: No. 82-2827,82-2827
• Parties: INDIANA PLANNED PARENTHOOD AFFILIATES ASSOCIATION, INC., a not-for-profit Indiana Corporation; Planned Parenthood Association of Northwest Indiana, Inc., a not-for-profit Indiana Corporation; Ralph Streeter, M.D. and Clarence W. Boone, M.D., individually and as representatives for all other physicians similarly situated; Sally Boe and Jane Doe, individually and as representatives for all minors similarly situated, Plaintiffs-Appellants, v. Linley E. PEARSON, as Attorney General of the State of Indiana; Stephen R. Goldsmith, as Prosecuting Attorney for the Nineteenth Judicial Circuit of the State of Indiana and as representative for all other Prosecuting Attorneys similarly situated, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1127

716 F.2d 1127

INDIANA PLANNED PARENTHOOD AFFILIATES ASSOCIATION, INC., a not-for-profit Indiana Corporation; Planned Parenthood Association of Northwest Indiana, Inc., a not-for-profit Indiana Corporation; Ralph Streeter, M.D. and Clarence W Boone, M.D., individually and as representatives for all other physicians similarly situated; Sally Boe and Jane Doe, individually and as representatives for all minors similarly situated, Plaintiffs-Appellants, v. Linley E. PEARSON, as Attorney General of the State of Indiana; Stephen R. Goldsmith, as Prosecuting Attorney for the Nineteenth Judicial Circuit of the State of Indiana and as representative for all other Prosecuting Attorneys similarly situated, Defendants-Appellees.

No. 82-2827.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1983.

Decided Aug. 26, 1983.

Lynn I. Miller, Katharyn M. Marks, Gaffney, Anspach, Schember, Klimaski & Marks, Washington, D.C., William T. Rosenbaum, Dillon, Hardamon & Cohen, Indianapolis, Ind., for plaintiffs-appellants.

James Bopp, Jr., Brames, Bopp & Haynes, Terre Haute, Ind., for defendants-appellees.

Before PELL and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

PELL, Circuit Judge.

In this case we are asked to decide the constitutionality of several sections of an Indiana statute requiring that no physician perform an abortion upon an unemancipated minor without first notifying the minor's parents. In particular, the appellants challenge the constitutional sufficiency of the procedures established by the statute whereby an unemancipated minor may petition for waiver of the notification requirement on the grounds that she is mature enough to make the abortion decision on her own or that, even if immature, waiver of notification is in her best interests. The district court upheld the statute in its entirety, stating that it furthers the state's "deep and laudable interest in the children and families of Indiana."

Since we heard oral argument in this case, the Supreme Court has decided two cases directly bearing on several of the issues presented to us. See City of Akron v. Akron Center for Reproductive Health Inc., --- U.S. ----, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Association v. Ashcroft, --- U.S. ----, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). Accordingly, we closely follow the analysis put forth in those cases in considering the challenges to the Indiana statute.

I. FACTS

On February 25, 1982, the Indiana Legislature amended section 35-1-58.5 of the Indiana Code (entitled "Regulation of Abortion") by adding a section imposing the notification requirement challenged here, Ind.Code Ann. Sec. 35-1-58.5-2.5 (Burns Supp.1982). ¹ This statute became effective on September 1, 1982.

On August 23, 1982, the appellants filed their complaint seeking injunctive, declaratory, and other relief under 42 U.S.C. Sec. 1983 to prevent enforcement of the Indiana statute. Judge Holder scheduled a trial on the merits for August 31. On August 30, two pregnant minors moved to intervene, a motion the judge granted the next day.

At the pretrial conference held on August 31, the court certified three classes: the class of Indiana physicians who would be affected in their medical practice by the statute; the class of all pregnant and potentially pregnant resident and out-of-state minors who seek or may seek abortions in Indiana, of whom some are mature and of whom some are immature but for whom parental notification would not be in their best interests; and the defendant class of prosecuting attorneys for each Indiana judicial circuit.

Trial began on August 31 and concluded on September 3. Both sides presented witnesses who testified about the medical and psychological effects of abortions performed on minors. Witnesses also testified about the likely effects the notification statute would have on minors seeking abortions and on the practices of abortion providers.

On October 11, 1982, the district court issued its findings of fact, conclusions of law, and judgment, in which it held that the statute was constitutional. In addition, the court struck the allegations of the complaint that asserted that the corporate plaintiffs potentially could be held criminally liable for the acts of their employee physicians in violation of the statute.

The appellants filed a notice of appeal on November 9, 1982. On December 14, the district court denied their motion for an injunction pending appeal. On January 18, 1983, a three-judge panel of this court denied the appellants' motion for an injunction pending appeal.

II. NOTIFICATION AND CONSENT STATUTES

There was some discussion in the briefs and at oral argument about whether the constitutional analysis applicable to parental consent statutes was relevant to an analysis of parental notification statutes. The argument was that because a notification requirement does not permit parents to veto their minor daughter's decision to have an abortion, a state has no duty to provide a minor with a judicial or other procedure for bypassing the notification requirement, even though a state has such a duty for minors seeking to avoid a parental consent requirement.

Until recently, there was room for doubt about the relevance to notification statutes of the constitutional analysis applicable to consent statutes. In Bellotti v. Baird (Bellotti II), 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), the plurality opinion of Justice Powell concluded that a state cannot give parents an absolute veto over the decision of a pregnant minor to have an abortion. Justice Powell said that the state must provide an alternative procedure for a minor to obtain authorization for an abortion. In such a proceeding, he said, a minor is entitled to show that she is sufficiently mature and informed to make the abortion decision or that, even if she is too immature to make the decision, the abortion is nevertheless in her best interests. Id. at 643-44, 99 S.Ct. at 3048-49. The plurality opinion also concluded that a state is required to make this bypass procedure available under notification statutes as well. Id. at 647, 99 S.Ct. at 3050.

In H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), the Court upheld a Utah statute that required a physician to give notice to the parents of a minor seeking an abortion. Although five justices expressed the view that it would be unconstitutional to apply a notice requirement to minors who could demonstrate their maturity, id. at 420, 101 S.Ct. at 1176 (concurring opinion of Powell, J.), 428 n. 3, 101 S.Ct. at 1181 n. 3 (dissenting opinion of Marshall, J.), the majority opinion did not decide whether a notice requirement would be constitutional as applied to emancipated or mature minors, id. at 407 & n. 14, 412 n. 22, 101 S.Ct. at 1170 & n. 14, 1172-1173 n. 22.

This issue has now been settled. In City of Akron v. Akron Center for Reproductive Health, Inc., --- U.S. ----, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the Court said that the state's interest in encouraging parental involvement--either through a consent or notification statute--in a minor's decision to have an abortion "must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement." Id. at 2491 n. 10. The Court went on to hold that a procedure whereby parents would be notified when a minor filed a petition seeking court approval of an abortion would be unconstitutional as applied to a mature minor. Id. at 2498 n. 31. ²

In requiring that states provide bypass procedures in connection with both consent and notification statutes, the Court has made no suggestion that procedures insufficient for consent statutes would be sufficient for notification statutes. Rather than differentiating between consent and notification statutes, the Court in City of Akron stated that it is "parental involvement" that an emancipated or mature minor must have an opportunity to avoid. 103 S.Ct. at 2491 n. 10. The apparent reason for the similar treatment of notification and consent requirements is that, as a practical matter, a notification requirement will have the same deterrent effect on a minor seeking an abortion as a consent statute has. See H.L. v. Matheson, 450 U.S. at 420 & n. 9, 101 S.Ct. at 1176-1177 & n. 9 (concurring opinion of Powell, J.) (stating that the rationale for requiring a state to provide a judicial bypass to a consent requirement is applicable to notification statutes).

Unemancipated minors are fundamentally different from adults because they are financially dependent upon their parents and have numerous legal incapacities. In addition, parents have considerable leeway to impose punishment upon their children for disobedience. Because of this, minors often have no choice but to comply with parental directives.

Although notification requirements do not give parents the legal power to veto their daughter's abortion decision, as a practical matter they may. "[Y]oung pregnant minors, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion and their access to court." Bellotti II, 443 U.S. at 647, 99 S.Ct. at 3050 (plurality opinion of Powell, J.). It was a recognition of this vulnerability that led the plurality in Bellotti II to state that confidentiality was necessary in a waiver-of-consent proceeding. See id.

Because parental involvement brought about by either consent or notification statutes may result in similar efforts by parents to block the abortion, we will apply the Supreme Court's analysis with respect to consent bypass procedures in our consideration of the constitutional sufficiency of Indiana's notification bypass procedures.

III. BURDEN OF PROOF

The district court held that the appellants "have failed to meet their burden of proof that the act in question does not serve significant state...