Planned Parenthood Ass'n of Atlanta Area, Inc. v. Miller

• Decision Date: 17 June 1991
• Docket Number: No. 88-8599,88-8599
• Citation: 934 F.2d 1462
• Parties: PLANNED PARENTHOOD ASSOCIATION OF THE ATLANTA AREA, INC., Planned Parenthood of East Central Georgia, Inc., Orrin Moore, M.D., individually and on behalf of their minor patients and all others similarly situated, Plaintiffs-Counterclaim Defendants-Appellees, Cross-Appellants, v. Zell MILLER, Governor, individually and in his official capacity, Defendant-Counterclaim Plaintiff-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1462

934 F.2d 1462

PLANNED PARENTHOOD ASSOCIATION OF THE ATLANTA AREA, INC. Planned Parenthood of East Central Georgia, Inc., Orrin Moore, M.D., individually and on behalf of their minor patients and all others similarly situated Plaintiffs-Counterclaim Defendants-Appellees, Cross-Appellants, v. Zell MILLER, Governor, individually and in his official capacity, Defendant-Counterclaim Plaintiff-Appellant, Cross-Appellee.

No. 88-8599.

United States Court of Appeals Eleventh Circuit.

June 17, 1991.

Rehearing Denied July 30, 1991.

Kathryn Allen, Sr. Asst. Atty. Gen., Atlanta, Ga., for defendant-counterclaim plaintiff-appellant-cross appellee.

Dara Klassel, Planned Parenthood Federation of America, Inc., New York City, Elizabeth J. Appley, Tony G. Powers, Merritt & Tenney, Atlanta, Ga., for plaintiffs-counterclaim defendants-appellees-cross appellants.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, ANDERSON and CLARK, Circuit Judges.

TJOFLAT, Chief Judge:

Plaintiffs in this case, an abortion counseling facility, an abortion provider, ¹ and a physician, challenge the constitutionality of the Georgia Parental Notification Act, Ga.Code Ann. Secs. 15-11-110 to -118 (1990)--an act compelling persons, under threat of criminal sanctions, to notify an unemancipated minor's parent or guardian before performing an abortion on her. ²

The Georgia legislature enacted its first parental notice law on April 14, 1987. See Parental Notification Act, 1987 Ga. Laws 1013. This act required a pregnant minor to notify a parent or guardian before obtaining an abortion; she could verify that she had given notice in two ways: (1) her parent or legal guardian could accompany her to the abortion facility and provide an affidavit attesting to parentage or guardianship or (2) another adult could accompany her to the facility and furnish an affidavit stating that the minor had notified a parent, legal guardian, or person standing in loco parentis. If the minor could not--or did not want to--comply with these requirements, she could petition the court to waive them. Id.

Following suit by Planned Parenthood, the district court enjoined the implementation of the Act. See Planned Parenthood Ass'n v. Harris, 670 F.Supp. 971 (N.D.Ga.1987) (Planned Parenthood I ). ³ The court held, inter alia, that the "accompanying adult" feature of the Act unduly burdened the liberty interest of a minor who willingly involved a parent in her abortion decision and, in addition, intruded on the family's privacy, i.e., its "interest in avoiding disclosure of personal matters." The court also addressed the constitutionality of the Act's judicial bypass procedure, holding that it did not guarantee sufficient expedition and confidentiality to conform to the Supreme Court's decision in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion). ⁴ The State appealed.

While the appeal was pending, however, the Georgia legislature amended the Act in an attempt to harmonize it with the district court's ruling. See Parental Notification Act Amendments, 1988 Ga.Laws 661. Planned Parenthood, believing that the amendments did not cure the Act's constitutional defects, again sued to enjoin its operation. See Planned Parenthood Ass'n v. Harris, 691 F.Supp. 1419 (N.D.Ga.1988) (Planned Parenthood II ). On June 16, 1988, a panel of this court remanded Planned Parenthood I to the district court, which, pursuant to Fed.R.Civ.P. 42, consolidated the two cases. On July 11, 1988, the district court entered an order enjoining the implementation of the amended Act. ⁵ The State now appeals this order.

I.

The Act forbids a physician, or any other person, from performing an abortion upon an unemancipated minor unless (1) the minor signs a form indicating that she "freely and without coercion" consents to the abortion and (2) one of her parents or guardians is notified, actually or constructively, in accordance with the Act. Ga.Code Ann. Sec. 15-11-112(a). ⁶ Notice may be given in three ways. First, the physician, or his agent, may notify the minor's parent or guardian in person or by telephone that the minor wants to have an abortion. If the parent or guardian indicates either that consultation with the minor is unnecessary or that he previously had been advised of the minor's wishes, the abortion may proceed immediately; otherwise, the minor must wait twenty-four hours. Second, the physician, or his agent, may notify the parent or guardian by "regular mail." If the physician chooses this method of notification, he may rely on a statutory provision that deems delivery to have occurred forty-eight hours after mailing "unless delivery is otherwise sooner established." A twenty-four hour waiting period again applies unless the parent or guardian tells the physician that he already has been notified that the minor is seeking an abortion or that he does not need time to consult with her. Third, if the minor wishes to further expedite the process, the Act permits her parent or guardian to furnish a statement affirming that he has been notified. Under this alternative, the abortion may proceed immediately. Id.

If the minor, for whatever reason, does not want to notify her parents, she can petition a juvenile court to waive the Act's requirements. See Ga.Code Ann. Sec. 15-11-112(b). ⁷ The Act instructs the juvenile court to grant a waiver if it finds either that the minor is mature, id. Sec. 15-11-114(c)(1), or that notice to her parent would not be in her best interests, id. Sec. 15-11-114(c)(2).

The minor's waiver petition proceeds in accordance with the Act and its implementing rules, the Uniform Juvenile Court Rules and the Court of Appeals Rules. These permit the minor to file her petition in the juvenile court of any Georgia county, id. Sec. 15-11-112(b); whereupon, a guardian ad litem is appointed to assist her, Ga.Unif.Juv.Ct.R. 23.2. The court must conduct a hearing on the petition within three days of the filing date, excluding Saturdays, Sundays, and holidays, Ga.Code Ann. Sec. 15-11-113; Ga.Unif.Juv.Ct.R. 23.5, and then render its decision within twenty-four hours of the hearing, Ga.Code Ann. Sec. 15-11-114(d); Ga.Unif.Juv.Ct.R. 23.6. If the hearing is not held, or the decision not issued, within these time periods, the petition is deemed to be granted. Ga.Code Ann. Sec. 15-11-113, -114(d).

If the juvenile court denies the minor's petition, she may appeal. Id. Sec. 15-11-114(e). The Georgia Court of Appeals Rules require that she initiate the appeal by filing a notice of appeal and a certified copy of the juvenile court order with the appellate court. Ga.Ct.App.R. 51(c). Within five calendar days ⁸ from the date of filing, the juvenile court must deliver the record to the court of appeals, which then must issue its decision no more than five days from the date it receives the record. Id. R. 51(c), (e).

To ensure the confidentiality of the hearing and appeals process, see Ga.Code Ann. Sec. 15-11-114(b), (e), the Act mandates that the record be sealed, id. Sec. 15-11-114(d). ⁹ In addition to this general directive, the Uniform Juvenile Court Rules instruct the court to redact the name of the minor if it appears in any of the public records, including the transcript of the proceeding, Ga.Unif.Juv.Ct.R. 23.7, and the Court of Appeals Rules mandate that the record "be considered and treated by the [appellate] Court as confidential"--its contents must be sealed upon conclusion of the appeal, and they may not be disclosed except upon order of the court. Ga.Ct.App.R. 51(j).

II.

Planned Parenthood challenges two aspects of the Act's notification requirement and five aspects of the judicial bypass procedure. ¹⁰ It contends that the notice provision is defective because (1) it mandates regular mail notification of parents over more expeditious means and (2) it subjects minors to a twenty-four hour delay following notification. Planned Parenthood claims that these requirements place an undue burden on a minor's fundamental right to an abortion since they are not narrowly tailored to further an important state interest. ¹¹ Planned Parenthood also challenges the judicial bypass procedure established by the Act and its implementing rules because (1) it does not provide a mechanism for a minor to prove that the state has failed to act upon her petition within the requisite statutory time frame (and, thus, that she is constructively authorized to obtain an abortion); (2) it does not adequately preserve a minor's anonymity; (3) it places a potential third-party veto over a minor's decision by requiring the juvenile court intake officer to divert a minor's petition or recommend its dismissal if he concludes that this is in the best interests of the minor and the public; (4) it burdens a minor's abortion right by mandating the appointment of a guardian ad litem, who may oppose the petition based on his own view of the minor's best interests; and (5) it is not sufficiently expeditious. With these defects, Planned Parenthood argues, the Georgia procedure cannot comport with Bellotti v. Baird.

After reviewing these challenges, the district court enjoined implementation of the amended Act, holding that it unduly burdened the minor's liberty and privacy interests. The court first determined that the regular mail requirement was unconstitutional. According to the court, the legislature contemplated delivery only by United States Postal Service first-class mail and not by more expeditious means of delivery such as express mail ¹² or Federal Express. Given this interpretation, the requirement was invalid--the State had not offered any justification for its decision to restrict the permissible means of written notification. The court did, however, uphold the twenty-four hour waiting period, noting that this requirement fostered the State's interest in promoting family consultation. ¹³

The...