Baird v. Bellotti, Civ. A. No. 74-4992-F.

• Decision Date: 10 February 1977
• Docket Number: Civ. A. No. 74-4992-F.
• Citation: 428 F. Supp. 854
• Parties: William BAIRD et al., Plaintiffs, v. Francis BELLOTTI, Attorney General of the Commonwealth of Massachusetts, et al., Defendants, Jane Hunerwadel, Defendant, Intervenor.
• Court: U.S. District Court — District of Massachusetts

428 F. Supp. 854

William BAIRD et al., Plaintiffs, v. Francis BELLOTTI, Attorney General of the Commonwealth of Massachusetts, et al., Defendants, Jane Hunerwadel, Defendant, Intervenor.

Civ. A. No. 74-4992-F.

United States District Court, D. Massachusetts.

February 10, 1977.

Roy Lucas, Washington, D. C., Joan C. Schmidt, Boston, Mass., for plaintiffs.

S. Stephen Rosenfeld, Garrick F. Cole, Asst. Attys. Gen., John Reinstein, Brian A. Riley, Mary Laura Russell, Robert J. Reynolds, Roger P. Stokey, Boston, Mass., for defendants.

Before ALDRICH, Senior Circuit Judge, JULIAN, Senior District Judge, and FREEDMAN, District Judge.

OPINION ON MOTION FOR STAY

ALDRICH, Senior Circuit Judge.

To our certification of questions to the Massachusetts Supreme Judicial Court concerning the meaning of, and procedures under, Mass.G.L. c. 112, § 12P, as directed in Bellotti v. Baird, 1976, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844, the court has made a comprehensive response, Baird v. Attorney General, 1977, Mass., 360 N.E.2d 288. In so doing it has resolved issues of statutory meaning as to which the statute is so uncommunicative on its face that the defendants and intervenor had, in the past, not only disagreed to some extent among themselves, but had vacillated even in their own views. However, the court has, properly, not ruled on the statute's constitutionality, recognizing that under 28 U.S.C. § 2281, this issue is to be resolved by the federal courts. Plaintiffs seek a stay against the operation of the statute pending that determination. Defendants object, basically, that plaintiffs have not shown a probability of success. They also assert that suspension of the statute will cause irreparable harm to Massachusetts minors.

This last contention hypothesizes the constitutionality of the statute. We do not propose to proceed by assuming the point at issue. We will deal, post, with the separate claim that we should tailor our stay.

With respect to the probability of plaintiffs' success, defendants' refusal to consent to a stay even for briefing — which refusal has, in the past, led to their immediate application to the Supreme Court — puts us in the position of having to form and articulate our tentative views forthwith. In this we have not been assisted by defendants' assertion in oral argument that, with the exception of the mature minor rule, the Massachusetts court has resolved all issues of statutory construction in accordance with what the Supreme Court indicated might accomplish a constitutional solution. This is not so, as the defendants, when questioned, conceded. In their post-argument brief defendants have modified their contention, now relying for their assertion of constitutionality on their surmise of how the individual Justices felt, based upon deductions they draw from the separate opinions in Planned Parenthood of Central Missouri v. Danforth, 1976, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. The surmise is quite unwarranted.¹

We believe there should be a stay, for three reasons. We say this without, on the one hand, excluding further grounds, and on the other, without suggesting that these views are more than tentative.

First, we are troubled by the fact that the statute does not, in terms, advise parents that all they may consider is the minor's best interest. It would be only natural to read the statute the other way; in fact the defendants, the intervenor, and our dissenting brother, 393 F.Supp. 847, 855, 862, 864, D.C., all did so when the statute was before us initially. The statute will be read by parents, and other lay persons, who may not know of, or who may attach no weight to, the Massachusetts court's limitations, and may continue to read it as defendants did originally. This is not an unimportant matter; we have already seen the Massachusetts decision substantially misquoted. Clearly, the freer a parent may feel to refuse consent, the more likely it will be that the minor will have to go to court. To have to go to court, in opposition to her parents' wishes, is a substantial burden on any minor. In this sensitive area, anything that needlessly and incorrectly increases the likelihood of this, imposes a burden that is constitutionally impermissible.

Second, in a significant manner the Massachusetts court's interpretation of the statute has not lived up to the possibility envisaged by the Supreme Court. At 428 U.S. 145, 96 S.Ct. 2865 the Supreme Court said,

"The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a `parental veto'."²

The Massachusetts court, however, said just the opposite.

"Parental consultation is required in every instance where an unmarried minor seeks a nonemergency abortion. . . . The parents, if available, must be notified of the court proceeding and must be allowed to participate in it." Mass., 360 N.E.2d 303.

There is already of record strong reason to believe that in some instances it would not be to the minor's best interests for her parents to know of her condition. The statute deprives the court of the right to make such a finding. To this extent the state is ruling what is to a minor's best interests, instead of consigning the question to an unfettered tribunal. Thus it has diminished the only feature of the statute that could save it from the Court's ruling in Danforth.

Third. Not only has the Massachusetts court contradicted the claim defendants made to the Supreme Court with respect to a minor's opportunity to show, if that be the case, that it would be to her best interests for her parents not to know of her condition, but it has rejected their further claim that a "mature minor" who is "determined by a court to be capable of giving informed consent will be allowed to do so."³ 428 U.S. 144, 96 S.Ct. at 2864. We need not presently reach even a tentative view as to whether this difference constitutes an undue state interference with a minor's constitutional right in the particular application, or improperly discriminates generally between abortion and other medical procedures.⁴ The Supreme Court has, in substance, instructed us to weigh the "degree and the justification" of such limitations. 428 U.S. 150, 96 S.Ct. 2867. This seems our essential task very possibly requiring further evidence. We propose to proceed as promptly as possible, but we do not believe we should be required to do so under the pressure of the statute's being operative in the meantime.

Defendants lamented orally, in opposing a stay, that the statute has been on the books for two and a half years, and, except for a brief inadvertent interval, the intent of the legislature has been frustrated for that period. We cannot resist pointing out that defendants, at one time or another, have not only changed their opinion as to what was the legislative intent, but have been twice mistaken. We think that before hurrying to put the legislature's intent into operation it would be well to find out what it is. We make this observation because, in spite of our having abstained in order to have the Massachusetts court instruct us as to the statute's meaning, that court has expressed only its present view, and has added an elastic clause under which the statute will seemingly mean whatever the Supreme Court determines that, constitutionally, it ought to mean.⁵ Although in their brief defendants make no direct reference to this portion of the Massachusetts court's opinion, they do argue that if we feel that the statute is unconstitutional because of some of its terms, we should enjoin the operation only of that portion. We cannot agree. We note, first, that the Massachusetts court's apparent delegation of authority, in effect to reconstrue the statute, is extended only to the Supreme Court. See n.5, ante. Secondly, we note that the Supreme Court's consistent view, most recently expressed in the case at bar, is that a statute may be construed to render it constitutional only when it is "susceptible" to that construction. 428 U.S. 147, 96 S.Ct. 2866. We should have thought that "susceptible" means that the proposed interpretation is one possible meaning of an ambiguous provision. Even there, "the rule of construction to be invoked when constitutional problems lurk in an ambiguous statute does not permit disregard of what the legislature commands." United States v. UAW, 1957, 352 U.S. 567, 589, 77 S.Ct. 529, 540, 1 L.Ed.2d 563. The problem may be more complex, but we cannot believe that we have jurisdiction, by way of injunction or otherwise, to direct a state superior court judge to interpret and apply a state statute in a manner contrary not merely to its "explicit" terms, Mass., 360 N.E.2d 288, 294 but to the present interpretation of the Massachusetts court. Ibid. We must reject defendants' proffer of legislative power.

JULIAN, Senior District Judge (dissenting on motion to stay).

This action was brought as a class action to enjoin as unconstitutional on its face the enforcement of Mass.G.L. c. 112, § 12P. On April 28, 1975, this Court, in a divided decision, declared unconstitutional the parental consent requirement to a minor's abortion and permanently enjoined the enforcement of the statute. Subsequently, on July 1, 1976, the Supreme Court of the United States vacated the judgment of this Court, holding "that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of § 12P and the procedure it imposes."...