Planned Parenthood Ass'n of Atlanta Area v. Harris

• Decision Date: 08 September 1987
• Docket Number: Civ. A. No. 87-1405A.
• Citation: 670 F. Supp. 971
• Parties: PLANNED PARENTHOOD ASSOCIATION OF the ATLANTA AREA, INC., and Planned Parenthood of East Central Georgia, Inc., Plaintiffs, v. Joe Frank HARRIS, Governor of the State of Georgia, Individually and in His Official Capacity, Defendant.
• Court: U.S. District Court — Northern District of Georgia

670 F. Supp. 971

PLANNED PARENTHOOD ASSOCIATION OF the ATLANTA AREA, INC., and Planned Parenthood of East Central Georgia, Inc., Plaintiffs, v. Joe Frank HARRIS, Governor of the State of Georgia, Individually and in His Official Capacity, Defendant.

Civ. A. No. 87-1405A.

United States District Court, N.D. Georgia, Atlanta Division.

September 8, 1987.

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Margie Pitts Hames, Robert L. Goldstucker, Nall, Miller, Owens, Hocutt & Howard, Elizabeth Joan Appley, Atlanta, Ga., Dara Klassel, Beth Otten, Roger K. Evans, Planned Parenthood Federation of America, New York City, for Planned Parenthood Ass'n of the Atlanta Area.

Margie Pitts Hames, Robert L. Goldstucker, Atlanta, Ga., for Planned Parenthood of East Cent. Georgia.

Michael J. Bowers, H. Perry Michael, William C. Joy, Kathyn L. Allen, Patricia Downing, State Atty. Gen.'s Office, Atlanta, Ga., for Jose Frank Harris, Governor.

ORDER

ROBERT H. HALL, District Judge.

Plaintiffs, providers of abortions and abortion-related services filed this class action seeking relief against the recently enacted Georgia Parental Notification Act (the "Act"), which requires unemancipated, unmarried minors to notify one parent of their intention to terminate their pregnancies or to bypass the parental notification requirement and petition the juvenile court for waiver of that requirement. Ga. Off'l Code Ann. §§ 15-11-5 and XX-XX-XXX et seq.

Plaintiffs contend that the Act is an unconstitutional restriction on the right to abortion because it will severely impede their minor patients' access to abortion services. Plaintiffs seek preliminary injunctive relief to stop the function of the Act asserting that the Act is unconstitutional on its face and would be unconstitutionally applied if allowed to be put into practice. Plaintiffs seek declaratory and permanent injunctive relief on the ground that the Act unduly restricts the right to privacy, due process and equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution.¹

PROCEDURAL BACKGROUND

The Act was scheduled to go into effect July 1, 1987. Plaintiffs brought this action and moved for a temporary restraining order and a preliminary injunction on June 25, 1987. After a hearing on the matter, this court on June 30, 1987 granted plaintiffs' motion for temporary restraining order on the grounds that the standard for a temporary restraining order had been met and in order to review the rules promulgated by the Georgia Supreme Court on June 29, 1987 to determine whether such rules sufficiently obviated the probable constitutional defects. The court on July 16-17 held a hearing on plaintiffs' motion for a preliminary injunction. The court directed both sides to file post hearing briefs by August 3, 1987 and reply briefs by August 14, 1987. This action then is currently before the court on plaintiffs' motion for preliminary injunction.

THE ACT

A. Notification Requirement

The Act makes it a misdemeanor for any person to perform an abortion on an unmarried, unemancipated minor without obtaining verification that she has notified one of her parents of her intention to have an abortion. Ga. Off'l Code Ann. §§ 15-11-112 and 118.² Verification may be accomplished in one of only two ways: (1) the minor's parent or legal guardian must accompany her to the abortion facility and furnish an affidavit that he or she is the minor's parent or guardian, § 15-11-112(a)(1)(A), or (2) the minor must find another adult to accompany her to the abortion facility and furnish an affidavit to the effect that a parent or legal guardian of the minor has been notified. § 15-11-112(a)(1)(B). The Act also provides that if the minor has no parent or legal guardian, another adult must accompany her to the abortion facility and furnish an affidavit that a person standing in loco parentis has been notified. § 15-11-112(a)(1)(C).

B. Judicial By-Pass Provision

1. Standard for Waiver

The Act provides that minors who choose not to notify their parent or guardian, or whose parent or guardian cannot be located, may petition a juvenile court for a waiver of the notice requirement. The Act provides that petition may be made by the minor's next friend. § 15-11-112(b). The notification requirement must be waived if the juvenile court finds either: (1) that the minor is "mature and well-informed enough to make intelligently the abortion decision on her own;" § 15-11-114(c)(1), or (2) that the notice "would not be in the best interests of the minor." § 15-11-114(c)(2).

2. Venue

The Act limits venue for such a petition to the juvenile court in the county in which the minor resides or the county in which the abortion is to be performed. § 15-11-112(b). The minor petitioner or next friend will be notified of the date, time and place of the hearing at the time of filing. § 15-11-113. The parent, or their surrogate guardian or person standing in loco parentis shall not be notified. § 15-11-113.

3. Timetable for Hearing and Appeal

The Act provides only that once the petition is filed that a hearing must be held within three days excluding Saturdays, Sundays and holidays. § 15-11-113. The Act provides no specific time limit for a decision to be rendered on the petition but states that juvenile courts should give the petitions precedence over other pending matters to ensure a decision be reached "as expeditiously as is possible under the circumstances of the case." § 15-11-114(b). The Act provides for "an expedited appeal" but gives no time frame for hearing an appeal or disposition. § 15-11-114(e). The Act authorizes and requests the state appellate courts to make rules to implement expeditious appeal. § 15-11-114(e).

4. Preservation of Anonymity

The Act provides that all court proceedings be conducted in a manner to preserve the anonymity of the parties both in juvenile court and on appeal § 15-11-114(b) and (e). The appeals courts are "authorized and required" to make rules to implement the guarantee of anonymity. § 15-11-114(e).

THE RULES PROMULGATED BY THE SUPREME COURT AND COURT OF APPEALS

The Act § 15-11-114(e) authorizes and requests the "appellate courts" to promptly issue such rules as are necessary to preserve anonymity and to ensure the expeditious disposition of procedures provided by the Act. The Georgia Supreme Court on June 29, 1987 promulgated Rules 23.1-23.7 amending the Uniform Juvenile Court rules. The Georgia Court of Appeals on July 8, 1987 amended the Rules for the Court of Appeals adding new rule 51 providing for expedited appeals under the Parental Notification Act.³

A. Rule 28 of the Uniform Juvenile Court Rules

The Supreme Court amended the Uniform Juvenile Court Rules to specify that whenever a minor petitions the juvenile court for relief pursuant to the Act, the court shall appoint a guardian ad litem to protect the minor's interests. Rule 23.2. The amendment requires that the hearing provided for in Ga. Off'l Code Ann. § 15-11-113 be conducted by a judge in all instances. Rule 23.4. The petitioning minor or next friend must be notified of the date, time and place of the hearing at the time the petition is filed. Rule 23.5. The hearing must be held within three days of the filing of the petition excluding Saturdays, Sundays and holidays. Id.

The amendment requires the court to issue a written order stating specific factual findings and legal conclusions supporting its decision. Rule 23.6. Such order is to be styled in the same manner as the petition and shall reflect the minor's social security number and date of birth. Id. A certified copy of the order shall be furnished the minor within 24 hours of the conclusion of the hearing. Id.

The new rules provide that the name of the minor not appear in any public record including any transcript of the hearing. Rule 23.7. The Clerk is directed to obliterate or render illegible any reference to the minor's name on any public record. Id.

B. Rule 51, Rules of the Georgia Court of Appeals

New Rule 51(b) provides an "expedited appeal" when a juvenile court has denied a petitioning minor waiver of the notification requirements under Ga. Off'l Code Ann. § 15-11-114(c). Rule 51(b). A minor seeking an expedited appeal shall file a Notice of Appeal and a certified copy of the order denying waiver of notice with the Clerk of the Court of Appeals within five days of the receipt by the minor of the Juvenile Court's order. Rule 51(c); 51(i). A copy of the Notice of Appeal must also be filed with the Juvenile Court. Id. Upon receipt of the Notice of Appeal, the Court of Appeals will issue an order to the Juvenile Court directing that the record be transmitted to and received by the Court of Appeals within five days from the date of the filing of the Notice of Appeal with the Court of Appeals. Id. Any brief or enumeration of errors must be filed within this time period. Id.

The rules provide that the record of the Juvenile Court be certified by the Clerk of the Juvenile Court and transmitted to the Court of Appeals under seal. Rule 51(d). The Clerk of the Court of Appeals then assigns the appeal to a panel of the judges of that court who must take the matter under consideration and issue a decision within five days of receipt of the record. Rule 51(e). Any motion for rehearing of an adverse ruling must be decided within five days of the filing of such a motion. Rule 51(f).

All pleadings, briefs, orders, transcripts, exhibits and any other written recorded material that are part of the record shall be considered and treated by the Court of Appeals as confidential. Rule 51(j). Upon conclusion of the appellate proceedings the record will be sealed, and the contents of the record shall not be disclosed, except upon order of the Court of Appeals or the Georgia Supreme Court. Id.

TESTIMONY AT HEARING

At the hearing held July 16-17, 1987 the court heard witnesses testify as to (1) some of the background facts about minors...