Akron Center for Reproductive Health v. Slaby
| Citation | 854 F.2d 852 |
| Decision Date | 12 August 1988 |
| Docket Number | No. 86-3664,86-3664 |
| Parties | AKRON CENTER FOR REPRODUCTIVE HEALTH, an Ohio corporation; Max Pierre Gaujean, M.D., individually and on behalf of his patients; Patty Poe, a minor, individually and on behalf of all other similarly situated persons, Plaintiffs-Appellees, v. Lynn SLABY, etc.; et al., Defendants, v. STATE OF OHIO, Intervenor-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
David J. Kovach, Asst. Atty. Gen., Cleveland, Ohio, Rita S. Eppler (argued) Asst. Atty. Gen., Columbus, Ohio, for intervenor-appellant.
Linda R. Sogg (argued), Thomas, Hine & Flory, Cleveland, Ohio, Bruce Campbell, ACLU of Ohio Foundation, Inc., Columbus, Ohio, Roger K. Evans, Planned Parenthood Fed. of America, Inc., New York City, for plaintiffs-appellees.
Robert R. Melnick, Youngstown, Ohio, for amicus curiae (Rutherford).
Before MARTIN, MILBURN and GUY, Circuit Judges.
Intervenor-appellant State of Ohio appeals the judgment of the district court declaring Ohio Amended Substitute House Bill 319 (H.B. 319) unconstitutional. H.B. 319, which enacted Ohio Rev.Code Secs. 2151.85 and 2505.073 and amended Ohio Rev.Code Sec. 2919.12, requires parental notification by physicians who intend to perform abortions on unmarried, unemancipated women under the age of eighteen. For the reasons that follow, we affirm.
On March 21, 1986, plaintiffs filed an action challenging the constitutionality of H.B. 319 (attached hereto as Appendix I) which requires that a physician who intends to perform an abortion on an unmarried, unemancipated minor must notify her parents unless one of several exceptions is present. Plaintiffs were the Akron Center for Reproductive Health, a facility which performs abortions on minors; Dr. Max Pierre Gaujean, a physician who performs abortions at the Akron Center; Patty Poe, an unmarried minor who believed she might be pregnant; and Rachel Roe, an unmarried minor living in the home of one of her parents with her two-year-old son. Roe was refused an abortion at the Akron Center because of the imminent operation of H.B. 319.
Defendants were Gary Rosen, City Prosecutor for the City of Akron; Lynn Slaby, Prosecuting Attorney for Summit County, Ohio; Anthony Celebrezze, Attorney General of the State of Ohio; and Richard Celeste, Governor of the State of Ohio. Only the State of Ohio, as intervenor, is participating in this appeal. 1
Section 2919.12 provides that no person shall knowingly perform or induce an abortion upon an unemancipated minor unless one of the following circumstances is present:
(1) the person performing the abortion has given at least twenty-four hours actual notice, in person or by telephone, to the parent or guardian of the minor;
(2) one of the woman's parents or her guardian has consented in writing;
(3) a juvenile court has issued an order authorizing the minor to proceed with the abortion in the absence of parental notification; or
(4) the juvenile court has constructively authorized the minor to consent to the abortion through its inaction.
In lieu of parental notification, the statute further provides that notice may be given to a specified sibling, stepparent or grandparent in a limited range of circumstances. The statute also provides that, if the person required to be notified cannot be reached after reasonable effort, the person providing the abortion must give at least forty-eight hours constructive notice by both regular and certified mail to that person. If the person to whom notice is required If the person required to be notified under the statute clearly and unequivocally expresses that he or she does not wish to consult with the pregnant minor prior to her abortion, then the abortion may proceed without further delay. For purposes of the statute, there exists a rebuttable presumption that a woman who is unmarried and under the age of eighteen is unemancipated.
to be given cannot be reached within the forty-eight hour period, the abortion may proceed.
The legislation provides that an individual who violates this section for the first time is guilty of a misdemeanor of the first degree, and that a second violation is a felony of the fourth degree. Any individual violating the statute is liable to the pregnant minor and her parent, guardian, or custodian for civil compensatory and exemplary damages. Administrative proceedings may also be instituted for noncompliance. Ohio Rev.Code Sec. 4731.22(C).
It is an affirmative defense to liability under the statute if the pregnant minor has provided false information about her age, marital status, emancipation, or name and/or address of the person required to receive notice. This defense may be asserted only if the person providing the abortion "did not otherwise have reasonable cause to believe" the information was false. It is also an affirmative defense that compliance was not possible due to an immediate risk to the life or health of the pregnant woman.
The legislation also establishes a procedure through which notification to a parent, guardian, or custodian may be bypassed. This bypass procedure provides that a woman who wishes to have an abortion without notification of her parent, guardian, or custodian may file a complaint in the juvenile court of the county in which she has a residence, in any bordering county, or in the juvenile court of the county in which the facility which would perform the abortion is located. The complaint must contain a statement that the complainant is pregnant, unmarried, unemancipated, under the age of eighteen, and that she wishes to have an abortion without the notification of her parents. The complaint must further contain either or both of the following allegations:
(a) that the complainant is sufficiently mature and well enough informed to intelligently decide whether to have an abortion without notification of her parents;
(b) that one or both of her parents, her guardian, or custodian has engaged in a pattern of physical, sexual, or emotional abuse against her, or that the notification of her parents is otherwise not in her best interests.
The statute further provides that the juvenile court will only rule upon the allegation explicitly pleaded in the complaint. Thus, if the complainant alleges only that she is sufficiently mature and well enough informed to make the decision alone, and the court declines to accept this contention, it must dismiss the complaint without going on to consider whether notification is otherwise not in the complainant's best interests. Only if the complainant makes both allegations can both be considered. The complainant must prove the allegations in her complaint by clear and convincing evidence, and counsel must be appointed to represent the complainant at the hearing in juvenile court.
The statute provides for an expedited procedure to be followed in the bypass proceeding. The hearing must be held not later than the fifth business day after the complaint is filed, and the court must enter judgment immediately after the hearing is concluded. However, if the hearing is not held by the fifth business day after the complaint is filed, the failure to hold the hearing shall be considered a constructive order ("pocket authorization") permitting the complainant to consent to the performance of the abortion without the notification of her parent.
If the court dismisses the complaint, it shall immediately notify the complainant of her right of appeal. Within four days after a notice of appeal is filed, the appeal must be docketed. The appellant shall file her brief within four days after the appeal is docketed, and unless she waives oral argument Upon motion of the appellant and for good cause shown, the court of appeals may shorten or extend any of the maximum times set forth in the statute. If the judgment is not entered within five days after the appeal is docketed, the failure to enter the judgment shall be considered a constructive order authorizing the appellant to consent to the performance of the abortion without notice to her parent. 2
the court of appeals shall hear oral argument within five days after the appeal is docketed. Judgment must be entered immediately after the hearing.
The statute further provides that each hearing must be conducted in a manner that will preserve the anonymity of the complainant. All records must be kept confidential, and the court shall not notify the complainant's parent or guardian that she is pregnant or that she wishes to have an abortion.
On April 22, 1986, the district court filed its memorandum and order enjoining enforcement of the statute. Akron Center for Reproductive Health v. Rosen, 633 F.Supp. 1123 (N.D.Ohio 1986). After disposing of procedural arguments not relevant to the pending appeal, the district court proceeded to the merits of the constitutional claims presented by the plaintiffs.
The district court recognized that the constitution is not violated by a statute which requires notice to the parents of immature, dependent minors seeking abortions. However, the district court went on to conclude that a bypass procedure is constitutionally mandated in order that notification is not required to be given to the parents of mature minors or minors whose best interests do not include parental intervention. The district court concluded that the bypass procedure contained in the Ohio statute was constitutionally deficient for several reasons; viz., the "constructive order " provision, which allows an abortion to be performed without parental notification when the court fails to act in a timely manner, was unconstitutionally vague; the statutory requirement that the notice be given by the physician, as opposed to some other responsible individual, unduly burdened the minor woman's right of access to an abortion; and the "clear and convincing evidence "...
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