Memphis Planned Parenthood, Inc. v. Sundquist

• Decision Date: 05 May 1999
• Docket Number: No. 97-6239,97-6239
• Citation: Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456 (6th Cir. 1999)
• Parties: MEMPHIS PLANNED PARENTHOOD, INC., Plaintiff-Appellee, v. Donald SUNDQUIST, Governor of the State of Tennessee, and John Knox Walkup, Attorney General, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 456

175 F.3d 456

MEMPHIS PLANNED PARENTHOOD, INC., Plaintiff-Appellee, v. Donald SUNDQUIST, Governor of the State of Tennessee, and John Knox Walkup, Attorney General, Defendants-Appellants.

No. 97-6239.

United States Court of Appeals Sixth Circuit.

Argued Nov. 3, 1998.

Decided May 5, 1999.

Michael W. Catalano, Associate Solicitor General (argued and briefed), Office of the Attorney General, Nashville, Tennessee, for Defendants-Appellants.

Julie K. Sandine, Dodson, Parker & Behm, Nashville, Tennessee, Louise Melling (argued and briefed), Talcott Camp (briefed), American Civil Liberties Union Foundation, New York, New York, Dara Klassel (briefed), Planned Parenthood Federation of America, New York, New York, for Plaintiff-Appellee.

Before: KEITH, NELSON, and NORRIS, Circuit Judges.

ALAN E. NORRIS, J., delivered the opinion of the court. DAVID A. NELSON, J. (pp. 467-68), delivered a separate concurring opinion. KEITH, J. (pp. 468-97), delivered a separate dissenting opinion.

ALAN E. NORRIS, Circuit Judge.

Memphis Planned Parenthood, Inc., ("MPP") petitioned the district court for a preliminary injunction preventing the State of Tennessee from enforcing its Parental Consent for Abortion by Minors Act ("Consent Act" or "Act"). The district court granted the injunction, and the state appeals.

I. BACKGROUND

In 1995, the Tennessee General Assembly passed the Consent Act, making it illegal for a physician to perform an abortion on an unemancipated minor, unless the minor obtains the consent of one parent or receives a waiver of the consent requirement through a judicial bypass procedure. Tenn.Code Ann. ("TCA") §§ 37-10-301 through 37-10-307 (1998). MPP sought a preliminary injunction against enforcement of the Act. The district court granted the injunction, ruling that the judicial bypass procedure was not sufficiently expeditious and did not provide sufficient anonymity. The state appealed. Rule 24 of the Rules of the Supreme Court of Tennessee ("Rule 24") elaborates on the procedures to be followed in pursuing a judicial bypass. During the pendency of the state's appeal from the original grant of the preliminary injunction, the Supreme Court amended Rule 24. This court thereafter vacated the injunction as moot and remanded the case. Memphis Planned Parenthood, Inc. v. Sundquist, No. 96-6104, 1997 WL 436566 (6th Cir.1997) (unpublished opinion). The district court subsequently determined that despite the amendments to Rule 24, a preliminary injunction should issue. That decision is the subject of the instant appeal. MPP challenged the following five provisions of the judicial bypass procedure found in either the Consent Act or Rule 24:

(1). The twenty-four hour time to appeal: A minor seeking to bypass the consent requirement must petition the juvenile court. TCA § 37-10-303(b). So long as the juvenile court rules within forty-eight hours of the filing of the minor's petition, a notice of appeal must be filed within twenty-four hours of the decision of the juvenile court. TCA § 37-10-304(g). If the juvenile court does not rule within forty-eight hours, the petition is deemed denied and the minor may file an appeal at any time. TCA § 37-10-304(d), (g).

(2). The statement of mental capacity: Rule 24(5)(a)(iv) requires the minor seeking to judicially bypass the consent requirement to state in her petition "whether the applicant is of sound mind and has sufficient intellectual capacity to consent to the abortion."

(3). The venue restriction: Although TCA § 37-10-303(b) allows the minor seeking a judicial bypass to petition "the juvenile court of any county of this state," Rule 24(4) requires the minor to file her petition in either the county in which she resides or the county in which the abortion is sought.

(4). De novo hearing by circuit court: If the juvenile court denies the petition, the minor may appeal to the circuit court. TCA § 37-10-304(g) provides that review of the juvenile court decision shall be de novo, and Rule 24(12)(d) allows the circuit court to call witnesses.

(5). The pre-petition physician consultation: The model petition appended to Rule 24 would have the minor swear that she "has consulted with the physician who is to perform the abortion, or with a referring physician," concerning the abortion.

According to MPP, minors who feel they cannot involve their parents in their abortion decision face logistical problems in obtaining an abortion. MPP points to a number of reasons why a minor might choose not to involve her parent in her decision, such as: fear that her parents will not consent because of pro-life or strongly held religious views; fear of physical abuse if a parent learns of the pregnancy; worry over causing her parent stress; inability to involve a parent where the pregnancy resulted from incest; and inability to notify unavailable parents. The provisions in the bypass procedure set out above, MPP asserts, unnecessarily require the minor to make phone calls, to travel to court and to a physician, to secure absences from home and school, and to incur additional expense. MPP claims that a minor will face great difficulty in meeting these logistical demands while keeping her parents unaware of her pursuit of a judicial bypass.

II. DISCUSSION

"This court reviews a challenge to the grant or denial of a preliminary injunction under an abuse of discretion standard and accords great deference to the decision of the district court. The district court's determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard." ¹ Blue Cross & Blue Shield Mutual of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted). "When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Id. (citations omitted).

The district court determined that MPP had demonstrated a strong likelihood of success on the merits and that the other preliminary injunction factors weighed in favor of granting the injunction. The district court also ruled that, under Tennessee law, the provisions it found likely unconstitutional should not be severed from the rest of the judicial bypass procedure. We hold that the district court abused its discretion in finding that MPP had demonstrated a strong likelihood of success on the merits. Alternatively, we hold that the district court abused its discretion in not severing the provisions it found offensive.

A. Likelihood of success on the merits

The Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to include a woman's right to an abortion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and affirmed the central holding of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). A plurality of the justices in Casey recognized the weighty concerns of the state in "the protection of potential life" and reasoned that, although "the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the state is prohibited from taking steps to ensure that this choice is thoughtful and informed." Id. at 871-72, 112 S.Ct. 2791. The plurality determined that regulations the state places on abortion prior to viability should be analyzed under the "undue burden" standard.

A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.

Id. at 877, 112 S.Ct. 2791. Although only a plurality of the justices employed the undue burden test, the courts of appeals, including this court, have used it in evaluating abortion regulations. See Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997) (employing undue burden standard), cert. denied, --- U.S. ----, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998).

The undue burden test is directed at two principles. First, a state may impose restrictions on the woman's access to an abortion that are designed to help her make the most informed decision or that serve some other valid state interest; however, a state may not erect procedural hurdles in the path of a woman seeking an abortion simply to make it more difficult for her to obtain an abortion. Second, any procedural restriction must not be substantial.

The Constitution extends substantive due process protections to minors as well as adults. Bellotti v. Baird, 443 U.S. 622, 633, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). However, the constitutional rights of children are not co-extensive with those of adults because of "the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing." Id. at 634, 99 S.Ct. 3035. In reconciling these principles, the Supreme Court in Bellotti II held that while a state may require the consent of one or both parents before allowing a minor to obtain an abortion, it must provide a way for the minor to...