Nova Health Systems v. Edmondson

• Decision Date: 25 August 2006
• Docket Number: No. 05-5085.,05-5085.
• Citation: 460 F.3d 1295
• Parties: NOVA HEALTH SYSTEMS, d/b/a Reproductive Services, on behalf of itself, its staff and its patients, Plaintiff-Appellant, v. W.A. Drew EDMONDSON, in his official capacity as Attorney General of the State of Oklahoma; and TIM HARRIS, in his official capacity as Tulsa County District Attorney, and their employees, agents and successors in office, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

460 F.3d 1295

NOVA HEALTH SYSTEMS, d/b/a Reproductive Services, on behalf of itself, its staff and its patients, Plaintiff-Appellant, v. W.A. Drew EDMONDSON, in his official capacity as Attorney General of the State of Oklahoma; and TIM HARRIS, in his official capacity as Tulsa County District Attorney, and their employees, agents and successors in office, Defendants-Appellees.

No. 05-5085.

United States Court of Appeals, Tenth Circuit.

August 25, 2006.

Sanford M. Cohen, Center for Reproductive Rights, New York, N.Y. (Galen Sherwin, Center for Reproductive Rights, New York, NY, M.M. Hardwick, Hardwick Law Office, Tulsa, OK, with him on the briefs), for Plaintiff-Appellant.

Teresa S. Collett, Special Attorney General for the State of Oklahoma, Minneapolis, MN (David T. Iski and James D. Dunn, Assistant District Attorneys, Tulsa County District Attorney's Office, Tulsa, OK, with her on the brief), for Defendants-Appellees.

Before MURPHY, EBEL and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Nova Health Systems ("Nova") challenges the district court's denial of its motion to enjoin a recently-enacted state statute requiring parental notification before a minor may receive an abortion. Specifically, Nova argues that the statute fails to ensure that a minor's petition for judicial approval of an abortion without notification to her parents will be decided with "sufficient expedition." As the text of the statute plainly requires prompt and expedited decisions, and as Nova points to no evidence that the state courts will not meet these mandates, we hold that Nova has not shown a likelihood of success on the merits of its action. We therefore AFFIRM the decision of the district court.

BACKGROUND

Oklahoma recently enacted H.B. 1686 (the "Oklahoma Act" or "Act"), a statute that, inter alia, requires parental notification before an abortion is performed on an "unemancipated minor."¹ H.B. 1686, 50th Leg., 1st Reg. Sess. (Okla.2005) (codified at Okla. Stat. tit. 63, §§ 1-740.1-1-740.5). Specifically, the Oklahoma Act requires a physician to notify a parent or legal guardian at least 48 hours before performing the abortion. Okla. Stat. tit. 63, § 1-740.2(A). The notice must be personally delivered or sent by certified mail to the parent or guardian's "usual place of abode." Id. § 1-740.2(A)(1)-(2). Alternatively, the parent or guardian may certify in a notarized statement that he or she has been notified. Id. § 1-740.2(A)(3).²

There are two ways to bypass this notice requirement. First, notice can be waived in a case of medical emergency or where the abortion is necessary to prevent the death of the minor. Id. § 1-740.2(B)(1)-(2). Second, a court may authorize the abortion be performed without notice. Id. § 1-740.3. It is this second bypass procedure — "judicial bypass" — that is the subject of the present appeal.

The Oklahoma Act provides, in relevant part, that

[i]f a pregnant unemancipated minor elects not to allow the notification of her parent, any judge of a court of competent jurisdiction shall, upon petition or motion, and after an appropriate hearing, authorize a physician to perform the abortion if the judge determines that the pregnant unemancipated minor is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the pregnant unemancipated minor is not mature, or if the pregnant unemancipated minor does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent would be in her best interest and shall authorize a physician to perform the abortion without notification if the judge concludes that the pregnant unemancipated minor's best interests would be served thereby.

Id. § 1-740.3(A). The Act does not set forth a definite time frame within which the decision on the bypass petition must be made, providing instead that

[p]roceedings in the court . . . shall be confidential and shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant unemancipated minor. . . .

Access to the trial court for the purpose of a petition or motion . . . shall be afforded a pregnant unemancipated minor twenty-four (24) hours a day, seven (7) days a week.

Id. § 1-740.3(C),(D).

Similarly, although the Oklahoma Act does not establish a concrete time frame for the appellate court to consider the minor's appeal in the event she is denied relief in the trial court, the statute does provide that

[a]n expedited confidential appeal shall be available to any pregnant unemancipated minor for whom the court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification shall not be subject to appeal. No filing fees shall be required of any pregnant unemancipated minor at either the trial or the appellate level. . . . [A]ccess to the appellate courts for the purpose of making an appeal from the denial of same, shall be afforded a pregnant unemancipated minor twenty-four (24) hours a day, seven (7) days a week.

Id. § 1-740.3(D).

On May 20, 2005, the day the Oklahoma Act took effect, Nova filed suit to enjoin its enforcement. At the same time, it filed a motion for a preliminary injunction with a request for a temporary restraining order, arguing that the judicial bypass provisions were unconstitutional because they failed to specify a time frame within which minors' bypass petitions must be decided. Nova argues that the lack of time limits will increase the medical risks associated with abortion procedures. Specifically, Nova claims that the "potentially unlimited" delay a minor faces in receiving judicial approval of her request to proceed without notification could delay her abortion into the second trimester, in which case she would have to undergo a different procedure. The delay could also result in the pregnancy progressing past the point which Nova provides abortions,³ meaning that the minor would have to travel "great distances" to receive her abortion, further increasing the medical risks of the procedure.⁴

After a hearing, the district court denied Nova's motion for a preliminary injunction, finding that Nova had failed to demonstrate a need for emergency relief. Nova timely appealed.

DISCUSSION

I. Standard of Review

"`[A] preliminary injunction is an extraordinary remedy, [and thus] the right to relief must be clear and unequivocal.'" Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.2005) (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)).⁵ In order for a party to be entitled to a preliminary injunction, that party must show

"(1) he or she will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits."

Id. at 1258 (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)) (alterations omitted).⁶

We review the district court's denial of a preliminary injunction for an abuse of discretion. Schrier, 427 F.3d at 1258. "A district court abuses its discretion where it commits a legal error or relies on clearly erroneous factual findings, or where there is no rational basis in the evidence for its ruling." Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002) (citations omitted). Although either an error of law or an error of fact may constitute an abuse of discretion, we review the district court's findings in these two areas under different standards; "[w]e examine the district court's underlying factual findings for clear error, and its legal determinations de novo." Id.

II. Analysis

The district court found that Nova failed to show any of the four elements necessary for a preliminary injunction to issue. We agree with the district court that Nova has failed to show a substantial likelihood of success on the merits, and thus we affirm the district court's order on that ground without reaching the other three factors. See Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1263 (10th Cir.2005) (affirming district court's denial of preliminary injunction because plaintiffs failed to demonstrate likelihood of success on the merits).

In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), the Supreme Court considered a statute that required the consent of both parents before an unmarried minor could obtain an abortion. Id. at 625, 99 S.Ct. 3035. In passing on the constitutionality of the statute, the Court explained that the minor must be provided an alternative judicial procedure whereby authorization could be obtained, and that this proceeding "must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained." Id. at 643-44, 99 S.Ct. 3035 (emphasis added).⁷

As a threshold matter, Appellees argue that Bellotti involved a parental consent statute and that it is not clear that Bellotti's expeditious bypass requirement applies to a statute like the one at issue here, which only requires parental notification. The Supreme Court has not specifically resolved this question, see Akron Ctr. for Reprod. Health, 497 U.S. at 510, 110 S.Ct. 2972, and its decisions do not suggest a clear answer, compare Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 897, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (explaining that a spousal notice requirement "will often be tantamount to the [spousal consent requirement] found unconstitutional in [Planned Parenthood of Cent. Mo. v.]Danforth [, 428 U.S. 52, 69, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)]" because "a spousal notice requirement...