Fargo Women's Health Organization v. Schafer, 93-1579

• Decision Date: 10 February 1994
• Docket Number: No. 93-1579,93-1579
• Citation: 18 F.3d 526
• Parties: FARGO WOMEN'S HEALTH ORGANIZATION; Susan Wicklund, M.D.; George M. Miks, M.D.; Cynthia Palmer; Craig Shoemaker, M.D.; and Jane Doe, Plaintiffs-Appellants; v. Edward T. SCHAFER, as Governor of the State of North Dakota; Heidi Heitkamp, as Attorney General of the State of North Dakota, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 526

18 F.3d 526

62 USLW 2547

FARGO WOMEN'S HEALTH ORGANIZATION; Susan Wicklund, M.D. George M. Miks, M.D.; Cynthia Palmer; Craig Shoemaker, M.D.; and Jane Doe Plaintiffs-Appellants; v. Edward T. SCHAFER, as Governor of the State of North Dakota Heidi Heitkamp, as Attorney General of the State of North Dakota, Defendants-Appellees.

No. 93-1579.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1993.

Decided Feb. 10, 1994.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON ^*, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

JOHN R. GIBSON, Senior Circuit Judge.

Fargo Women's Health Organization and individuals associated with it appeal from the district court's ¹ entry of summary judgment in favor of the State of North Dakota upholding the constitutionality of the North Dakota Abortion Control Act, N.D.Cent.Code Secs. 14-02.1-01 to 14-02.1-12, amended by 1991 N.D.Laws ch. 141 (effective April 1, 1991). The Organization challenges two of the 1991 amendments ² concerning informed consent: (1) the provision requiring abortion providers to give women seeking abortions certain information twenty-four hours before the abortion concerning assistance benefits that may be available, liability of the father, and the right to review printed material provided by the State; and (2) the definition of "medical emergency." ³ It also challenges two provisions of the preexisting Act--the definition of "abortion" ⁴ and the general penalty provision. We affirm the judgment of the district court.

After North Dakota amended its Abortion Control Act in 1991, the Organization brought this action asserting that the Act is unconstitutional on its face. The Organization sought a declaratory judgment that the provisions were unconstitutional and immediate injunctive relief prohibiting enforcement of the Act.

On August 23, 1991, the district court granted a preliminary injunction as to the informed consent and twenty-four hour waiting period requirements. The parties agreed to hold this case in abeyance pending the Supreme Court's decision in Planned Parenthood v. Casey, --- U.S. ----, 112 S.Ct 2791, 120 L.Ed.2d 674 (1992), since the statutory provisions at issue in Casey were nearly identical to the provisions in this case. The district court accepted the parties' stipulations regarding the substantial overlap of this case and Casey, and required that the parties delay filing summary judgment motions until after release of the Casey decision. After the Supreme Court issued its opinion in Casey, the State moved for summary judgment. The district court granted summary judgment for the State, vacated the preliminary injunction, and ordered that the case be dismissed. Fargo Women's Health Org. v. Sinner, 819 F.Supp. 862, 865 (D.N.D.1993). The Organization then sought a stay pending appeal, which the district court denied. Fargo Women's Health Org. v. Schafer, 819 F.Supp. 865, 866 (D.N.D.1993). The next day Judge McMillian granted the Organization's motion for a temporary stay pending appeal. On March 30, 1993, a panel of this court vacated the stay and denied the injunction pending appeal. ⁵ The following day the Organization sought and obtained a stay pending appeal from Justice Blackmun who referred the case to the full Supreme Court for a decision on the stay application. Fargo Women's Health Org. v. Schafer, No. A-742 (Mar. 31, 1993). On April 2, 1993, the Supreme Court denied the stay pending appeal. Fargo Women's Health Org. v. Schafer, --- U.S. ----, 113 S.Ct. 1668, 123 L.Ed.2d 285 (1993). Justice O'Connor, joined by Justice Souter, wrote a separate concurrence, stating that she believed the lower courts should have conducted an inquiry as to whether the North Dakota provisions at issue constitute an undue burden for women seeking abortions. Id. at ----, 113 S.Ct. at 1669. We heard argument on the merits and thereafter granted a stay pending determination of this appeal.

The Organization argues on appeal that the Supreme Court's decision in Casey, --- U.S. ----, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), and its articulation of the "undue burden" standard require that the district court make factual findings, that a facial challenge may succeed even if the statute could be applied constitutionally to some women, and that the preliminary injunction should be reinstated pending trial on the merits. The State argues that the district court properly granted summary judgment and dismissed the Organization's facial challenge to North Dakota's law because it is similar to the Pennsylvania statute upheld in Casey, and that the district court correctly rejected the Organization's claim that the statute was void for vagueness.

We review an appeal from a decision granting summary judgment de novo. Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Relying on United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), and Rust v. Sullivan, 500 U.S. 173, 182-84, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991), the district court held that a successful challenge to the facial validity of a statute requires a showing that no set of circumstances exists under which a statute would be constitutional. Fargo Women's Health Org., 819 F.Supp. at 864. The court stated that merely demonstrating that the Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid. Id. (citing Salerno, 481 U.S. at 745, 107 S.Ct. at 2100). The district court rejected the Organization's argument that the court should factually assess the degree of burden imposed by the Act under the Casey "undue burden" standard. ⁶ 819 F.Supp. at 865. When a panel of this court considered the Organization's appeal for a stay pending appeal, it agreed with the standard the district court employed in considering a facial challenge. Fargo Women's Health Org. v. Schafer, No. 93-1579, slip op. at 3-6, 1993 WL 603600 (8th Cir. March 30, 1993). Nevertheless, according to Justice O'Connor in her concurrence with the Supreme Court's denial of the Organization's motion for a stay pending appeal of this case, the facial challenge standard should include a factual inquiry in abortion regulation cases. Fargo Women's Health Org., --- U.S. at ----, 113 S.Ct. at 1669. Justice O'Connor wrote: "In striking down the Pennsylvania law, we did not require [plaintiffs] to show that the provision would be invalid in all circumstances." Id. Justice O'Connor, joined by Justice Souter, emphasized that a law constitutes an "undue burden," and is therefore invalid, if "in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." Id. (quoting Casey, --- U.S. at ----, 112 S.Ct. at 2830). Thus, the first question we must decide is whether the district court, and this court in its opinion of March 30, 1993, denying the stay pending appeal, followed Supreme Court mandate in applying the Salerno facial challenge test.

The Casey decision and the comments of Justice O'Connor and Justice Souter concurring in the denial of stay entered April 2, 1993, cause us to question whether the undue burden test of Casey replaces the Salerno test. This is an issue that we believe only the Supreme Court can ultimately decide. In the present posture that we face, we believe we should first analyze the questions before us under the Salerno test, and then analyze the issues as if the undue burden test has replaced Salerno. We pause to explain the cause for our concern with the appropriate standard and our reasons for concluding that we must approach this case first as if Salerno applies and then as if it does not apply.

First, as we pointed out in our opinion of March 30, 1993, we find support from Casey for our conclusion that the Salerno standard remains the law. The Casey joint opinion authors--Justices O'Connor, Souter, and Kennedy--carefully reviewed and selectively departed from other earlier precedent, but did not specifically reject Salerno. See --- U.S. at ----, 112 S.Ct. at 2823 (overruling parts of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ), and Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986)); id. --- U.S. at ----, 112 S.Ct. at 2830-31 (holding that Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 21 L.Ed. 442 (1872), and Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), expressed views inconsistent with today's understanding of family, individuals, and the Constitution). If the three justices wanted to depart from the Salerno standard, we believe they would have specifically stated that the standard did not apply. Chief Justice Rehnquist stated in his dissent that "because this is a facial challenge to the [Pennsylvania] Act, it is insufficient for petitioners to show that the [spousal] notification provision 'might operate unconstitutionally under some conceivable set of circumstances.' " Casey, --- U.S. at ----, 112 S.Ct. at 2870 (Rehnquist, C.J., dissenting in part) (quoting Salerno, 481 U.S. at 745, 107 S.Ct. at 2100). In light of this strong statement and the absence of response to it in the three-justice opinion, the continuing vitality of Salerno is at least an open question.

Moreover, Justice Souter joined Justice O'Connor in her April 2, 1993, concurrence, but Justice Kennedy, who had joined in the three-justice opinion in Casey, did not. Further, Justice White, who joined in Justice Rehnquist's dissent in Casey, has retired, and the Supreme Court has not considered this issue since Justice Ginsburg assumed office. We do not see our role as attempting to divine the Court's present or...