Manning v. Hunt
| Citation | 119 F.3d 254,1997 WL 381581 |
| Decision Date | 11 July 1997 |
| Docket Number | No. 97-1126,97-1126 |
| Parties | Richard O. MANNING, M.D.; Raleigh Women's Health Organization, Incorporated; Takey Crist, M.D., on their own behalf and on behalf of their minor patients, Plaintiffs-Appellants, v. James B. HUNT, Jr., Governor of the State of North Carolina, in his official capacity; Ronald L. Moore, District Attorney of Buncombe County, in his official capacity; Peter S. Gilchrist, III, Mecklenburg County District Attorney, in his official capacity; C. Colon Willoughby, Jr., Wake County District Attorney, in his official capacity; William H. Andrews, Onslow County District Attorney, in his official capacity, Defendants-Appellees, North Carolina Right To Life, Incorporated, Amicus Curiae. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Deborah Koff Ross, ACLU-NC Legal Foundation, Raleigh, NC, for Appellants. Grady L. Balentine, Jr., Assistant Attorney General, Raleigh, NC, for Appellees. ON BRIEF: Ellen W. Gerber, High Point, NC; C. Frank Goldsmith, Marion, NC; Catherine Weiss, Louise Melling, Talcott Camp, Reproductive Freedom Project, American Civil Liberties Union Foundation, New York City, for Appellants. Michael F. Easley, North Carolina Attorney General, Raleigh, NC for Appellees. Paul Stam, Jr., Theodore S. Danchi, Apex, NC, for Amicus Curiae.
Before MURNAGHAN and WILLIAMS, Circuit Judges, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Senior Judge CLARKE wrote the opinion, in which Judge MURNAGHAN and Judge WILLIAMS joined.
This case comes before the Court on appeal of the District Court's denial of a preliminary injunction enjoining enforcement of North Carolina's Act to Require Parental or Judicial Consent for an Unemancipated Minor's Abortion, N.C. Gen.Stat. § 90-21.6 to .10 ("the Act"). In their complaint, Appellants challenge the Act as violating various provisions of the U.S. Constitution on its face. On November 30, 1995, the United States District Court for the Western District of North Carolina entered a preliminary injunction partially enjoining enforcement of the Act. On May 22, 1996, this Court vacated the District Court's order in its entirety and remanded for further proceedings. Appellants then renewed their motion for a preliminary injunction. That motion was denied by the District Court on December 18, 1996. Manning v. Hunt, No. 1:95cv229 (W.D.N.C. Dec. 18, 1996). Appellants now appeal the District Court's decision. For the reasons set forth below, this Court affirms the District Court's opinion.
Under the terms of the Act, an unemancipated minor may not obtain an abortion unless the physician obtains the written consent of the minor and:
(3) A parent with whom the minor is living, or
(4) A grandparent with whom the minor has been living for at least six months immediately preceding the date of the minor's written consent.
N.C. Gen.Stat. § 90-21.7(a) (Michie 1996). These requirements do not apply when, in the physician's best judgment, it is determined that a medical emergency exists which requires an immediate abortion. Id. § 90-21.9.
The Act contains a judicial bypass of these consent requirements. Under the bypass procedure, the minor may petition a state district court for a waiver of the above consent requirement if the persons empowered to give consent refuse to do so or are unavailable within a reasonable time or manner, or if the minor elects not to seek the required consent. Id. § 90-21.7(b). The minor may proceed on her own or through a guardian ad litem, and the state district court is required to advise her of her right to counsel and appoint counsel if she so requests. Id § 90-21.8(c). The Act requires court proceedings regarding a petition for the waiver of parental consent be confidential and be given precedence over other matters before the court. Id. § 90-21.8(d). If the minor so requests, no notice will be served upon her parents, guardian, or custodian regarding the petition. Id. § 90-21.8(f). Under no circumstances is the state district court to wait more than seven days from the time of the petition's filing before holding its hearing and ruling on the petition unless the minor agrees to an extension of time. Id. During the hearing, the state district court is required to hear evidence regarding emotional development, maturity, intellect, alternatives to the abortion, and any other evidence deemed useful. Id. The record of the evidence must be maintained in a confidential manner. Id. § 90-21.8(f). The state district court is required to waive the consent requirement if it finds that (1) the minor is mature and well-informed enough to make the decision to abort her pregnancy on her own, (2) it would be in the minor's best interest to waive the consent requirement, or (3) the minor is a victim of rape or incest. Id. § 90-21.8(e). Pursuant to rules enacted by the North Carolina Supreme Court, the state district court must issue its ruling at the conclusion of the hearing.
If the court finds that the minor has been the victim of rape or incest, it is required to report this finding to the Director of North Carolina's Department of Social Services. Id. § 90-21.8(f). This requirement is consistent with another North Carolina statute which places on all persons a duty to report child abuse, neglect, or death due to maltreatment. Id. § 7A-543. All information received by the Department of Social Services is to be held in the strictest confidence. Id. § 7A-544. Of course, the Department's investigation may well bring the allegations of rape or incest to the attention of the minor's parents.
The Act provides that the minor may appeal a denial of her petition by the state district court to the superior court. Id. § 90-21.8(h). The minor must file the appeal within 24 hours from the date of the issuance of the state district court's order. Id. This hearing is de novo and, by statute, is to be held as soon as possible within seven days of the filing of the appeal. Id. The North Carolina Supreme Court has implemented rules requiring that the superior court issue its decision within 48 hours of its hearing. Further appeals may be made to the North Carolina Court of Appeals and Supreme Court, but the Act contains no provisions governing such appeals. In the only state court opinion regarding the Act that has come to our attention, the North Carolina Court of Appeals has ruled that the minor does not have an appeal as of right to the appellate courts beyond the superior court, but may petition for a writ of certiorari, which the appellate courts must review promptly under standard procedures. In re Doe, 485 S.E.2d 354, 357 (N.C. Ct.App.1997).
Any person who, with knowledge or with reckless disregard as to whether the patient is an unemancipated minor, intentionally performs an abortion on an unemancipated minor and who intentionally or knowingly fails to conform to the Act's requirements is guilty of a class 1 misdemeanor. Id. § 90-21.10.
Plaintiffs-Appellants are physicians, who practice in North Carolina, and the Raleigh Women's Health Organization, Inc. Dr. Richard O. Manning is medical director of the Western Carolina Medical Clinic in Asheville, North Carolina, and of Family Reproductive Health in Charlotte, North Carolina. Dr. Manning states that many of his patients are minor women who need abortions. Dr. Takey Crist is a physician practicing obstetrics and gynecology in Onslow County, North Carolina, and claims that he routinely performs abortions on unemancipated minors. The Raleigh Women's Health Organization, Inc., located in Wake County, North Carolina, provides health and educational services to women, including abortions through the twentieth week of pregnancy. Many of its patients are unemancipated minors seeking abortions who cannot obtain parental consent or involve their parents in their decision to have an abortion. Defendants-Appellees are officials within the government of North Carolina and are sued in their official capacities. These officials are bound to carry out the laws of North Carolina, including the Act which is the subject of this litigation and its provisions for prosecution of anyone who performs an abortion which does not comply with the Act's requirements.
Appellants filed this facial challenge--in which the Appellants argue that the Act is unconstitutional based on its language and the language of the rules accompanying it without consideration of the actual application of the Act--seeking preliminary and permanent injunctive relief enjoining enforcement of the Act on November 2, 1995. Appellants claim that the Act violates the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution. The Act, as argued in their complaint, imposes an undue burden on the right of a pregnant unemancipated minor to an abortion by (1) failing to clearly define the term "parent with custody," (2) failing to provide an adequate, expeditious, and confidential judicial bypass for pregnant minors who appeal a denial of her petition to the appellate courts of North Carolina, (3) requiring that a pregnant minor file her appeal of a denial of her petition by the state district court to the superior court within 24 hours of the state district court's decision, (4) requiring that the hearing before the superior court be held de novo, (5) requiring that the minor state affirmatively that she does not want her parents, custodian, or guardian to be informed of her decision to have an abortion, and (6) requiring that a judge who finds that the minor was the victim of rape or incest report such finding to the Department of Social Services ("reporting requirement").
In its first opinion on Appellants' motion for a...
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