Nova Health Systems v. Edmondson
| Decision Date | 10 June 2005 |
| Docket Number | No. 05-CV-280-HDC-FHM.,05-CV-280-HDC-FHM. |
| Citation | 373 F.Supp.2d 1234 |
| Parties | NOVA HEALTH SYSTEMS, d/b/a Reproductive Services, on behalf of itself, its staff and its patients, Plaintiff, 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. |
| Court | U.S. District Court — Northern District of Oklahoma |
Bebe Jill Anderson, Galen Sherwin, New York City, Janet Lynne Crepps, Simpsonville, SC, Martha Moody Hardwick, Hardwick Law Office, Tulsa, OK, for Plaintiff.
Elizabeth Rose Sharrock, Guy Lee Hurst, Office of the Attorney General, Oklahoma City, OK, David Thomas Iski, James Dashiell Dunn, District Attorney's Office, Tulsa, OK, for Defendants.
The Court has before it the plaintiff's motion for temporary restraining order and/or preliminary injunction. On May 24, 2005, following notice to the defendants and an opportunity to respond, the Court conducted a hearing on the plaintiff's motion. At the conclusion of the hearing, the Court took the issue of injunctive relief under advisement. Now, having considered the arguments of counsel, the pleadings and applicable law, the Court finds as follows.1
On May 20, 2005, Governor Brad Henry signed into law Okla. H.B. 1686, 50th Leg., 1st Reg. Sess. (Okla.2005), to be codified at Okla. Stat. tit, 63, §§ 1-740.1 to 1-740.5. The plaintiff challenges only Sections 11 through 15 of that Act. ("the Act"). The Act, by its terms, immediately became effective upon the Governor's signature. The Act establishes a parental notification requirement, with a judicial bypass provision, before an abortion may be obtained by an unemancipated minor or a female for whom a guardian has been appointed ("minor"). Specifically, the Act prohibits a physician from performing an abortion on a minor unless, forty-eight hours in advance of the procedure, notice of the anticipated abortion is provided to one of the minor's parents. The Act provides that no notice is required when a physician certifies that the abortion is necessary to prevent the mother's death, or if there is insufficient time to provide the required notice, or if the delay would create a serious risk to the minor of substantial and irreversible impairment of a major bodily function. The Act also includes a judicial bypass provision which allows the minor to petition "any judge of a court of competent jurisdiction" to authorize her abortion without notification to one of her parents. The court shall authorize the abortion if the minor is found to be mature and capable of giving informed consent. If she is found not to be mature, or if the minor does not claim to be mature, the court shall authorize the abortion without a parental notification if it is found to be in the minor's best interest. The Act confers upon every minor who avails herself of the judicial bypass procedure the right to participate in the court proceeding on her own behalf or to have counsel appointed to assist her throughout the proceeding.
The Act mandates that the proceeding 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 interest of the minor. The judge is required to make, in writing, specific factual findings and legal conclusions supporting the decision, and to record the proceeding. An expedited confidential appeal is available to the minor if the court denies authorization of an abortion without notification. However, an order authorizing the abortion without notification is non appealable. All filing fees are waived, and access to file motions or pleadings to the trial and appellate courts is afforded to the minor twenty four hours a day, seven days a week.
At 4:30 p.m., immediately following Governor Henry's signing the Act, plaintiff filed the subject motion for temporary restraining order and/or preliminary injunction requesting this Court to enjoin enforcement of the Act as "fatally flawed." At the onset, it is important to correct any misconceptions of the limited issue raised in the plaintiff's motion for injunctive relief. The plaintiff is not challenging the parental notification or judicial bypass provisions contained in the Act. In its motion, plaintiff challenges only the purported lack of any time limits regarding the judicial bypass provision. Specifically, plaintiff claims the Act "fails to establish a definite, specific time frame for determination of either petitions for a judicial bypass or appeals from denials of judicial bypass petitions, thus failing to guarantee that such proceedings will be expeditious, as constitutionally required in the time-sensitive context of abortion."
The Supreme Court has established specific guidelines to be followed by states when enacting statutes requiring a parental notification before a minor may obtain an abortion. In Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II), the Supreme Court imposed a requirement that any parental notification statute must also afford to the minor a judicial bypass as "an alternative procedure whereby authorization of an abortion can be obtained" [without parental notification]. Id. at 643, 99 S.Ct. 3035. To be valid, the judicial bypass proceeding must meet the following test:
A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeal 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 (footnote omitted).
The Supreme Court stated that any state enacted judicial bypass procedure must ensure that the provision requiring parental notification does not in fact amount to the "absolute, and possible arbitrary, veto on a minor's right to obtain an abortion." Id. "The constitutional right to seek an abortion may not be unduly burdened by state-imposed conditions upon initial access to court." Id. at 648, 99 S.Ct. 3035. It is in view of the Supreme Court's requirement that any judicial bypass provision must assure that resolution of the issue will be completed with "sufficient expedition to provide an effective opportunity for an abortion to be obtained" and not to "unduly burden" the minor's initial access to the courts, that the Act herein must be tested. If the Act complies with the requirements of Bellotti II, the Act cannot be found to be unconstitutional on its face.
"A preliminary injunction is an extraordinary remedy, the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir.1984). "Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established." Goldammer v. Fay, 326 F.2d 268, 270 (10th Cir.1964). In this circuit, a party seeking a preliminary injunction must satisfy four prerequisites: "(1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest." Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). A right to relief must be clear and unequivocal. Salt Lake Tribune Publishing Co. v. AT & T Corp., 320 F.3d 1081, 1099 (10th Cir.2003) (citing Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001)). Because the plaintiff must satisfy each of the four prerequisites to be entitled to injunctive relief, a finding that the plaintiff has failed to establish one or more of the four criteria would be sufficient to deny the plaintiff's motion.
Substantial likelihood of success on the merits
As to the first element, the plaintiff must establish a prima facie case showing a reasonable probability that it will ultimately prevail on its claim that the judicial bypass provision is insufficient under the requirements of Bellotti II and is therefore unconstitutional.
Plaintiff claims the Act violates the privacy rights of the plaintiff's minor patients by failing to guarantee an expeditious alternative procedure by which a minor can obtain a waiver of the notification requirement. The plaintiff argues that the Act is open-ended and does not on its face provide a time frame within which the minor's judicial bypass application is to be decided because the Act fails to set forth a definitive time-limit either for the district court to reach its decision or for any appeal to be resolved. The plaintiff argues the Act states only that the court "may reach a decision promptly and without delay so as to serve the best interest of the pregnant unemancipated minor, H.B. 1686, § 13.C, and that `an expedited confidential appeal shall be available to any pregnant unemancipated minor for whom the court denies an order authorizing abortion without notification.'" H.B. 1686, § 13. D.
The Court finds no merit in the plaintiff's contention. On its face, the statute clearly comports with the above stated requirements of Bellotti II. The Act provides to the minor complete access to the state court system, without jurisdictional or venue limitations. It allows the minor to file her petition before "any...
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