Planned Parenthood League of Massachusetts v. Bellotti, 88-1221

• Decision Date: 07 February 1989
• Docket Number: No. 88-1221,88-1221
• Citation: 868 F.2d 459
• Parties: PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, et al., Plaintiffs, Appellants, v. Francis X. BELLOTTI, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 459

868 F.2d 459

PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, et al Plaintiffs, Appellants, v. Francis X. BELLOTTI, etc., et al., Defendants, Appellees.

No. 88-1221.

United States Court of Appeals First Circuit.

Feb. 7, 1989.

Rehearing and Rehearing En Banc Denied March 20, 1989.

John H. Henn with whom Foley, Hoag & Eliot, Boston, Mass., and Richard H. Pildes, Washington, D.C., were on brief for plaintiffs, appellants.

Carl Valvo, Asst. Atty. Gen., with whom Gerald Fitzgerald, First Asst. Atty. Gen., William L. Pardee, and Mary Connaughton, Asst. Attys. Gen., Boston, Mass., were on brief for defendants, appellees.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from a decision of the district court for the District of Massachusetts to abstain, on Burford ¹ and Younger ² grounds, from further entertaining a suit challenging the constitutionality of a Massachusetts statute, as actually implemented, that regulates abortions. The statute requires a minor seeking an abortion to obtain parental consent or to persuade a justice of the superior court that she is either mature enough to make an informed decision to have an abortion or that such an operation is in her best interests. ³

I.

Plaintiffs' first challenge to section 12S of M.G.L. ch. 112 began in 1978, when they sought to enjoin the original version of the statute. After certification to the Massachusetts Supreme Judicial Court, the United States Supreme Court struck the provisions that required parental notice of a minor's decision to seek an abortion, and that granted state judges the authority to withhold consent even for minors sufficiently mature to make an informed decision. Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). Massachusetts amended Sec. 12S to its current form, and plaintiffs renewed their challenge. We discuss in some detail the relevant history of this second litigation, now in its ninth year.

1. In June of 1980, plaintiffs Planned Parenthood League of Massachusetts (PPLM), a nonprofit abortion counselling and referral foundation, a medical clinic, a physician, and an unmarried pregnant minor, on their own behalf and on behalf of classes certified by the district court (all hereinafter simply PPLM), brought suit challenging the facial constitutionality of amended Sec. 12S. The original defendants were the then Attorney General of Massachusetts, Francis X. Bellotti, the Commissioner of Public Health, and the Suffolk County District Attorney, representing prosecutors as a class. The district court denied a motion for preliminary injunction that would have prevented the implementation of Sec. 12S. Planned Parenthood League v. Bellotti, 499 F.Supp. 215 (D.Mass.1980).

2. In 1981, we reversed the district court's decision not to preliminarily enjoin the requirements that a minor sign a consent form that included a description of the fetus and that she wait for 24 hours after signing the form before having an abortion. We directed that a preliminary injunction issue. We affirmed the court's refusal to enjoin the provisions of Sec. 12S requiring parental consent or judicial bypass authorization for abortions, stating that "on a record undeveloped as to the actual operation of the judicial approval procedure, we are not prepared to hold that its effects will be so burdensome as to deny due process of law to minors seeking to use it." Planned Parenthood League v. Bellotti, 641 F.2d 1106, 1011 (1st Cir.1981) (footnote omitted). ⁴

3. On April 17, 1981, PPLM instituted suit in the Massachusetts Supreme Judicial Court against the same defendants, facially challenging Sec. 12S on state grounds, Articles I, II, X and XVI of the Massachusetts Declaration of Rights. Injunctive relief was denied on April 22 and Sec. 12S became effective on April 23, 1981. On May 19, 1981, PPLM amended its state complaint to add an as-applied basis for the challenge and a reques that the Supreme Judicial Court invoke its general superintendency power over implementation of the statute.

4. On June 16, 1981, Justice Liacos of the Supreme Judicial Court, acting as a single justice, propounded guidelines for handling Sec. 12S proceedings in the superior court, supplementary to the earlier Standing Order No. 12-80 of that court. (We had earlier reproduced that standing order in an appendix to our opinion. 641 F.2d at 1025-26.) The state case was transferred to Suffolk Superior Court. Under an agreed procedure in an order issued by Chief Justice Morse of that court, statistical records on Sec. 12S cases are maintained and made available to PPLM. They reflect the number of petitions processed, the length of time involved, the number of trips a minor must make to the courthouse, and other facts concerning Sec. 12S cases. Very little activity has since taken place in this case, which is now on the superior court's suspended docket.

5. After more than two years, action resumed in federal district court with a status conference in December, 1983, at which PPLM indicated its intent to change the focus to an as-applied challenge. ⁵ Defendants then moved for a more definite statement in February, 1984, and suggested an amended complaint. On March 26, 1984, PPLM filed a more definite statement, contending that "the administration and application ... of the parental/judicial consent requirements of Sec. 12S ... has violated [plaintiff's due process rights] ... in that the procedures in fact afforded ... constitute an undue burden...."

6. Shortly thereafter, PPLM, in April, 1984, moved to amend the federal complaint, by adding as defendants the Administrative Chief Justice of the trial court of Massachusetts, the Chief Justice of the superior court department of the trial court, and the clerk of the Suffolk division of that department. The Commonwealth had earlier suggested making them parties. PPLM explained the grounds by saying that the challenge focuses "on the actual workings of the statute in practice as it is administered and applied by judges and clerks." PPLM then referred to an attached article by Patricia Donovan in the November/December 1983 issue of Family Planning Perspectives, describing the operation of the judicial bypass statutes in Massachusetts, Minnesota, and Rhode Island, entitled "Judging Teenagers: How Minors Fare When They Seek Court-Authorized Abortions." ⁶ PPLM then asserted that it relied "in part on the actions of those judges and clerks, and the relief accorded herein may include specific relief against judges as a class and clerks as a class."

7. On June 29, 1984, defendants moved to dismiss the action against the two judicial defendant classes, characterizing the amended complaint as a "dangerous challenge to the core of state governance," in which the district court is asked to "sit in judgment on the manner in which individual state judges are deciding particular section 12S cases," with "the spectacle of state judges being cross-examined as to their reasons not only for deciding cases but even for their most casual trial utterances and gestures" and the possibility of a federal judge being asked to issue "detailed rules of conduct" for state judges. In their brief, the issue was starkly described: "Can a federal court ever sit as a superjudge over an entire state system?" Then followed the elaboration of five bases for dismissing the complaint as to the judges: (1) no complaint was made of the actions, individual or supervisory, of the two judicial defendants; (2) there is no case or controversy, there being no basis for monetary relief and no real and immediate threat to plaintiffs; (3) there is both an adequate and a superior remedy at law within the Massachusetts court system; (4) there should be abstention under Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), or Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); and (5) dismissal can rest on Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), to avoid duplicative litigation.

8. On August 22, 1984, PPLM filed its opposition, asserting that it sought only to strike down a statute being implemented in an unconstitutional manner by enjoining its enforcement, not an injunction against violation of individual minors' civil rights or an injunction ordering state judges and clerks to do better. It contemplated proving its case by the statistical data being gathered under the order of Chief Justice Morse, by transcripts, and by testimony from a lawyers' referral panel supplying counsel to Sec. 12S petitioners. The opposition proceeded to contest each of the five bases of dismissal asserted by the state. With this opposition was filed an affidavit of PPLM's counsel asserting that its investigation had developed information concerning the need for the volunteer legal panel, statistical data on abortions and births, statistical data on the processing of Sec. 12S petitions, data as to the ages of minor petitioners, information on recusals, information reported by the volunteer legal panel concerning hostile judges, data on out-of-state clinics performing abortions on Massachusetts minors, data on court caseloads, information on psychological trauma, and other impacts on minors undergoing Sec. 12S proceedings.

II.

On February 11, 1985, the district court issued its opinion dismissing the complaint as to the "judicial defendants," the two administrative justices of the superior court and the Suffolk County clerk. Planned Parenthood League v. Bellotti, 608 F.Supp. 800 (D.Mass.1985). The court observed that all of defendants' theories supporting dismissal centered on the foundation question: "whether a federal court may 'sit as a superjudge over an entire state judicial system?' " Id. at 803. The court noted PPLM's argument that it did not contemplate specific injunctive relief against individual state...