Barnes v. State of Miss.

Decision Date26 May 1993
Docket NumberNo. 92-7264,92-7264
Citation992 F.2d 1335
PartiesHelen B. BARNES, M.D., et al., Plaintiffs-Appellees, v. The STATE OF MISSISSIPPI, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

T. Hunt Cole, Jr., Sr. Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for defendants-appellants.

Catherine Albisa, Kathryn Holbert, Rachel Pine, New York City, Cynthia Stewart, Royals & Hartung, Jackson, MS, for plaintiffs-appellees.

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

Before JOHNSON, GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The State of Mississippi appeals a decision by the district court holding unconstitutional its law requiring minors in some cases to obtain the consent of both parents before getting an abortion. The district court entered a preliminary injunction barring enforcement of the statute.

Despite the recent efforts of a three-justice plurality of the Supreme Court, passing on the constitutionality of state statutes regulating abortion after Casey has become neither less difficult nor more closely anchored to the Constitution. Planned Parenthood v. Casey, --- U.S. ----, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). That Mississippi's statute was carefully framed to steer among the shoals of caselaw has simplified our task somewhat. Further, based on the rationale for stare decisis articulated by the Casey plurality, we believe the "central holdings" of pre-Casey decisions remain intact and compel approval of this statute. We vacate the preliminary injunction and remand for entry of an order of dismissal.

I

Subject to significant exceptions, the 1986 law, Miss.Code Ann. §§ 41-41-51 through 41-41-63, forbids an unemancipated minor to obtain an abortion unless she has the consent of both parents or the approval of the state Chancery Court. In cases where the parents are divorced or are unmarried and separated, then only the consent of the parent with primary custody is required. § 41-41-53(2)(a). Similarly, if only one parent is available in a reasonable time, only the consent of the available parent is necessary. § 41-41-53(2)(b). If the pregnancy was caused by sexual intercourse with the minor's father or stepfather, only the consent of the mother is required. § 41-41-53(2)(c). Further, the statute permits abortions on minors without parental consent in cases of medical emergency. § 41-41-57.

The law contains a judicial bypass provision allowing minors to circumvent the parental consent requirement by applying for approval in state court. § 41-41-53(3). If the minor is unable to satisfy the parental consent requirements or chooses not to follow that route, she may file a petition in Chancery Court for court approval to have that consent waived. The statute mandates that the state court proceedings be confidential and anonymous. A breach of confidentiality carries a criminal penalty. § 41-41-61. It further provides that the Chancery Court will rule on the petition within 72 hours after it is filed; otherwise the minor may go ahead with the abortion. § 41-41-55(3). The statute calls on judges to waive the parental consent requirement if 1) the minor is mature and well-informed enough to make the decision on her own, or 2) the abortion would be in her best interests. Finally, it provides for an expedited confidential and anonymous appeal of any denial of the waiver.

Pursuant to the statute, the Mississippi Supreme Court promulgated Rule 10.01 of the Mississippi Uniform Rules of Chancery Court. The rule specifies Chancery Court procedures for the consent waiver. In particular, it provides that the petition should contain an allegation that 1) the minor is mature and well informed enough to make the decision on her own, or 2) that one or both of the parents has engaged in a pattern of physical, sexual, or emotional abuse against her, or that notification of her parents would not be in her best interest.

The appellees, consisting of doctors and clinics, launched a facial challenge to the statute's constitutionality. The district court initially granted a preliminary injunction barring enforcement of the statute until the Mississippi Supreme Court promulgated its rules regarding parental consent waiver proceedings. The district court then stayed the proceedings for four years awaiting the outcome of various Supreme Court rulings on abortion. In March 1992, it held the statute unconstitutional on the sole ground that the Mississippi Supreme Court's implementing rule unduly restricts a minor's access to an abortion. Accordingly, it denied the state's motion to lift the preliminary injunction on enforcement of the law. The state appeals.

II

The appellees argue that this qualified two-parent consent/judicial bypass statute regulating abortion is unconstitutional. The statute is flawed, they contend, because requiring the approval of two parents does not serve any important state interest, unduly restricts a minor's access to abortion, and intrudes on the family's right to structure its relationships as it sees fit. For example, the statute gives one parent the power to veto the abortion even if the other parent consents to the procedure. This, they argue, has the effect of changing power relations within the family. The judicial bypass does not save the statute, in the appellees' view, because it involves too much judicial intrusiveness into a private family decision.

A

The Supreme Court has upheld less intrusive parental consultation statutes in the past. Parental involvement statutes may be divided into four groups, in ascending order of the burden they impose on the minor's exercise of her limited right to an abortion: one-parent notification statutes, two-parent notification statutes, one-parent consent statutes, and two-parent consent statutes. The Court upheld a one-parent notification statute in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). It upheld a two-parent notification statute that includes a judicial bypass provision, in Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (Kennedy plurality opinion). 1 Finally, it upheld a one-parent consent statute, with a judicial bypass, in Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). The remaining question is whether a two-parent consent statute impermissibly crosses the line so as to impose an undue burden on the minor's right to an abortion. Casey, --- U.S. at ----, 112 S.Ct. at 2819 (plurality) (formulating "undue burden" standard for abortion regulations).

As noted above, the Court scrutinizes consent statutes more closely than it does notification statutes, and two-parent laws more closely than one-parent laws. Thus, a two-parent consent statute arguably raises more serious questions than the other parental involvement statutes. The appellees contend that the constitutionality of a two-parent consent/judicial bypass law is an open question. Mississippi argues that the matter has been settled in favor of constitutionality. Mississippi appears to have the better of the argument.

In Bellotti v. Baird, 443 U.S. 622, 637, 99 S.Ct. 3035, 3045, 61 L.Ed.2d 797 (1979), a fractured Court struck down a state law that required minors to obtain the consent of both parents before an abortion could be performed. The plurality opinion struck the law down on the grounds that its judicial bypass provision was constitutionally inadequate. 443 U.S. at 645, 99 S.Ct. at 3049. However, the opinion stated: "We are not persuaded that, as a general rule, the requirement of obtaining both parents' consent unconstitutionally burdens a minor's right to seek an abortion." Id. at 649, 99 S.Ct. at 3051. In outlining the constitutional requirements for such a statute, the Court said: "We therefore conclude that if the state decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained." Id. at 643, 99 S.Ct. at 3048 (emphasis added). Thus, if the statute had contained an adequate judicial bypass the four members of the plurality stood ready to uphold it. A fifth, Justice White, was prepared to uphold the statute in Bellotti even without a judicial bypass. Id. at 657, 99 S.Ct. at 3055 (White dissenting).

Although the court in Bellotti did not uphold a two-parent consent statute, it did indicate that it would do so under different circumstances. The appellees urge that this statement amounts to dicta and need not be followed. That characterization of the Bellotti plurality was disputed by the plurality itself, 443 U.S. at 651 n. 32, 99 S.Ct. at 3052 n. 32, and was challenged just two years ago, Hodgson, 497 U.S. at 498, 110 S.Ct. at 2970 (Kennedy plurality).

Even if the comment on two-parent consent statutes in Bellotti is dicta it is persuasive dicta, particularly in light of Justice Kennedy's plurality opinion in Hodgson, 497 U.S. at 498, 110 S.Ct. at 2970. There, he relied on Bellotti to uphold a two-parent notice requirement. Justice Kennedy argued that since Bellotti approved a two-parent consent statute with a judicial bypass, it follows that the less onerous two-parent notice statute must be constitutional. Id. at 498, 110 S.Ct. at 2970 (Bellotti "requires us to sustain the statute before us here"). Justice O'Connor, also citing Bellotti, joined the plurality on the broad grounds that a bypass provision tailors "a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion." Id. at 461, 110 S.Ct. at 2950 (O'Connor concurring). Thus, five justices (Rehnquist, White, O'Connor, Scalia, and Kennedy) in Hodgson viewed Bellotti as settling the question in favor of the constitutionality of a two-parent consent/judicial bypass statute.

B

Even if Bellotti is not directly...

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