Eubanks v. Wilkinson
| Decision Date | 03 July 1991 |
| Docket Number | No. 88-6085,88-6085 |
| Citation | 937 F.2d 1118 |
| Parties | Samuel EUBANKS, M.D., et al., Plaintiffs-Appellants, v. Wallace WILKINSON, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David A. Friedman, Bonnie M. Brown, American Civ. Liberties Union of Kentucky, Louisville, Ky., Lynn M. Paltrow (argued), Janet Benshoof, Rachael N. Pine, Dawn Johnson, American Civ. Liberties Union Foundation, New York City, for plaintiffs-appellants.
Ryan M. Halloran, General Counsel, William K. Moore, Charlotte Levy, Staff Attys., Stanley A. Stratford, Asst. General Counsel, Sandra E. Downs, Cabinet for Human Resources, Office of the Counsel, Frankfort, Ky., Frederic J. Cowan, Atty. Gen., Mary James Young, Asst. Atty. Gen. (argued), Office of the Atty. Gen. of Kentucky, Frankfort, Ky., Ernest Jasmin, Louisville, Ky., Ray Larson, Commonwealth Attorney's Office, Lexington, Ky., N. Scott Lilly, Asst. County Atty., Louisville, Ky., Florence Huffman, Lexington, Ky., for defendants-appellees.
Julie J. Giordano, Amy E. Dougherty, The Rutherford Institute of Kentucky, Bluegrass Chapter, Inc., Jerry L. Horn, Bussey, Horn & Hayden, Lexington, Ky., Thomas M. Troth (argued), Swinford & Sims, Cynthiana, Ky., for intervenor-appellee.
Bonnie Thie, Seattle, Wash., Theodore H. Amshoff, Jr., Guy Anthony Bayes, Amshoff, Amshoff & Searcy, Louisville, Ky., Ann-Louise Lohr, Chicago, Ill., for amicus curiae.
Before MERRITT, Chief Judge, WELLFORD *, Senior Circuit Judge, and DEMASCIO, Senior District Judge. **
This case raises two issues concerning the severance of unconstitutional portions of a parental consent abortion statute. The plaintiffs, doctors and others, appeal the ruling of the District Court in their challenge to Kentucky's statute requiring physicians to obtain the consent of both parents of a minor prior to performing an abortion on the minor. The District Court found significant portions of the statute unconstitutional but preserved the statute in part by modifying one provision and severing others. The defendants, State officials, have not appealed the District Court's finding of unconstitutionality, and the District Court's ruling in this respect is the law of the case which we must accept.
There are two major issues: (1) Having found that a state statute unduly burdens a woman's right to an abortion, may a court supply new limiting language, modifying the statute so as to avoid unconstitutionality, and then enjoin all operations of the statute except as the newly drafted limiting language will allow; and (2) having severed the portion of a statute which carries out the statute's dominant purpose, may a court leave intact a provision secondary to the dominant purpose but capable of independent operation rather than striking the entire statute.
We follow the general rule that a federal court may not supply new limiting language for a state statute to create constitutionality. Thus the District Court erred in drafting a new limiting condition rather than severing the provision found unconstitutional. In light of our holding that the provision found unconstitutional must be severed and not redrafted, we remand to the District Court for a hearing on the issue whether the statute should be declared invalid in its entirety since such substantive parts of it have been stricken. Therefore, for the reasons set forth below, we affirm the District Court's opinion in part, reverse in part, and remand.
In the District Court, the plaintiffs challenged Kentucky's statute requiring physicians who perform abortions for minors to secure the signed and notarized informed written consent of the minor and both parents if available, and setting forth criminal and civil penalties not excluding exemplary damages against persons who fail to secure the prescribed consent. The statute provides for a judicial bypass as an alternative for the minor who wishes to seek an abortion without the consent of her parents. Ky.Rev.Stat.Ann. Secs. 311.732, 311.733, and 311.990(12) (Baldwin 1986).
The relevant part of Kentucky's statute requiring parental consent for minors who seek abortions reads as follows:
(2) No person shall perform an abortion upon a minor unless:
(a) The attending physician or his agent secured the informed written consent signed and notarized of the minor and both parents, if available, or legal guardian;
(b) If both parents are not available, the attending physician or his agent has secured such written consent from the minor and the available parent or guardian;....
(3) Every minor shall have the right to petition any circuit or district court of the Commonwealth for an order granting the right to self-consent to an abortion pursuant to the following procedures: [procedures set forth]
Ky.Rev.Stat.Ann. Sec. 311.732(2)(a), (b) & (3) (emphasis added).
The statute includes a specific severability provision which authorizes the severance of any "provisions, words, phrases, clauses, or application of KRS 311.732" which may be held invalid, thus allowing the remaining portions of the statute to be given effect. See Ky.Rev.Stat.Ann. Sec. 311.733. Finally, the statute provides the following penalty:
(12) Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether the person upon whom the abortion is to be performed is an unemancipated minor, and who intentionally or knowingly, fails to conform to any requirement of KRS 311.732 is guilty of a Class A misdemeanor.
Ky.Rev.Stat.Ann. Sec. 311.990(12).
The District Court found that the words "both parents if available" were unconstitutionally vague, holding that the words could not be rendered constitutional through interpretation. It further declared the requirement for two-parent consent an unconstitutional burden on the minor woman's right to privacy. 1 To remedy that burden and to preserve the statute rather than striking the unconstitutional portion, the District Court supplied new limiting language: the state may require the informed written consent of both parents only "[i]n the case of a minor living at home with both parents." Jt.App. at 42. The Court enjoined application of the statute in all cases not covered by the newly framed limitation and severed the criminal penalty for physicians who failed to secure the consent required. The District Court also declared the requirement for notarized signatures unconstitutionally burdensome and severed that requirement.
The State did not appeal, but rather the plaintiffs appealed the District Court's remedial actions, claiming that the Court should have struck the entire statute on finding significant portions unconstitutional rather than modifying and saving a key provision by supplying new limiting language.
Taking into account the District Court's ruling on the substantive question of constitutionality which was not appealed and is now final, the question before this Court is whether the District Court erred in substituting new language, and then enjoining operation of the provision except as its modification would allow, and in severing other provisions in order to preserve the operation of the statute. For the reasons set forth below we reverse the District Court's addition of new limiting language to the state statute in order to preserve it from the prior declaration of unconstitutionality but affirm the District Court's severance of the notarization requirement. Accepting as we must the District Court's ruling that a requirement for two-parent consent creates an unconstitutional burden on the minor's right to privacy, we sever the parental consent portion of the statute. We remand for a hearing on the issue whether the provision requiring the written informed consent of the minor should be left intact or whether the entire statute should be declared invalid. This remedy leaves the Kentucky legislature free to write its own limitations for a parental consent statute within the constraints of the minor's constitutional right of privacy. Our severance of the two-parent consent requirement makes it unnecessary to reach the question of severing the criminal penalties for physicians or other objections to the statute raised by the plaintiffs. We remand for the issuance of an injunction, consistent with this opinion, concerning the two-parent consent provision and for a hearing and decision on the severance issue left undecided by this opinion.
Because the Commonwealth of Kentucky did not appeal the District Court's opinion, the question of the statute's constitutionality is not before us. See Moore v. Fowinkle, 512 F.2d 629, 631 (6th Cir.1975). We consider whether the District Court erred in the remedy it designed to address the unconstitutionality it found in the statute.
When a federal court declares part of a state statute unconstitutional, it acts under the authority of the Supremacy Clause. In order to decide the remedial issue before us--whether a federal court should supply limiting language to preserve the constitutionality of a state statute, thus making policy choices usually made by the state legislature--we must take into account a number of factors. One of those factors is the policy of the Commonwealth of Kentucky respecting judicial revision of Kentucky statutes. It would seem anomalous in severing Kentucky statutes for a federal court to act more intrusively than would the highest court of the Commonwealth when considering whether to modify a state statute after a finding of unconstitutionality.
The Kentucky Supreme Court in Musselman v. Commonwealth, 705 S.W.2d 476 (Ky.1986), in an opinion by Judge Leibson, considered a remedial statutory problem similar to the problem before this Court and rejected the proposition that a court may narrow a statute by introducing new limiting words. In reviewing a Kentucky Court of Appeals ruling that an ordinance could be construed as...
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