Planned Parenthood League of Massachusetts v. Bellotti, 80-1580

Decision Date15 April 1981
Docket NumberNo. 80-1580,80-1580
Citation641 F.2d 1006
PartiesPLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS et al., Appellants, v. Francis X. BELLOTTI et al., Appellees.
CourtU.S. Court of Appeals — First Circuit

John H. Henn, Boston, Mass., with whom Sandra L. Lynch, and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellants.

Stephen S. Ostrach, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Carl Valvo and Donald K. Stern, Asst. Attys. Gen., Government Bureau, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This appeal puts in issue the constitutionality of a Massachusetts statute establishing three prerequisites to the performance of abortions: first, that a minor obtain parental or judicial approval prior to having an abortion; second, that any woman seeking an abortion sign a consent form prescribed by the state containing specified information about abortion; and third, that a woman wait twenty-four hours after signing that form before having an abortion.

Parties and Proceedings

Plaintiffs-appellants in this action are the Planned Parenthood League of Massachusetts, a non-profit foundation which provides abortion counselling and referral services; Crittenton Hastings House, a medical clinic which provides abortions and abortion-related services; Phillip Stubblefield, M.D., a physician whose practice includes the performance of abortions; and Jane Doe, at the commencement of the action an unmarried pregnant minor who sought to terminate her pregnancy without parental or judicial approval (hereafter jointly "appellants"). All appear both on their own behalf and on behalf of the separate classes that the district court certified them to represent. Defendants-appellees are Francis X. Bellotti, Attorney General of the Commonwealth of Massachusetts; Arthur Frechette, M.D., Commissioner of Public Health of the Commonwealth; and Newman Flanagan, District Attorney of Suffolk County, named as a representative of all District Attorneys in the Commonwealth (hereby jointly "appellees" or "the state"). All are charged with some aspect of enforcement or implementation of the challenged statute.

Appellants initially sought preliminary and permanent injunctive relief against enforcement of the statute at issue shortly before it was to take effect. The district court held a three-day hearing; it heard testimony from several witnesses, received a partial stipulation, and admitted into evidence several lengthy affidavits and substantial portions of the record before the Supreme Court in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). The district court, 499 F.Supp. 215, denied the motion for a preliminary injunction in its entirety, holding that appellants had failed to show a probability of success on the merits as to any provision of the statute. The court also denied appellants' motion for a stay of enforcement of the statute pending appeal, but did grant a 10-day stay of enforcement to allow relief to be sought in this court. We consolidated the motion for a stay with the appeal of the denial of the preliminary injunction, granted expedited review, and continued the district court's stay until further order.

The Statute

A relatively brief amendment of only one section of the comprehensive statutory scheme regulating abortions in Massachusetts, the act before us nonetheless contains significant provisions of two kinds. See Mass.Gen.Laws ch. 112, § 12S, as amended by 1980 Mass.Acts ch. 240 ("the statute"). 1 The first, applicable only to unmarried minors, requires that they obtain one of two prescribed forms of approval prior to an abortion: the consent of both parents, or of the parent having custody if the parents are divorced, or of one parent if the other is unavailable within a reasonable time, or of a guardian if both parents are unavailable; or an authorization from a judge of the state's Superior Court, which is to be given if the judge decides either that the woman seeking it is mature and capable of giving informed consent or that having an abortion would be in her best interest. The statute also sets forth certain procedures to be followed in connection with the judicial alternative, including provisions for proceeding pro se, for appointment of a guardian ad litem, for a right to court-appointed counsel, for confidentiality of proceedings, for expedited proceedings, and for the maintenance of a record including written findings of fact and conclusions of law. 2

The second set of requirements imposed by the act, applicable to all women seeking abortions in Massachusetts, establishes an "informed consent" prerequisite to the performance of abortions, comprising two related but distinct elements. One requires that a woman's written consent to an abortion be obtained on a form that the commissioner of public health is directed to promulgate. The form is to include, in language understandable to lay persons, a discussion of the procedure to be used, possible complications, and the availability of alternatives to abortion; a statement that a refusal to have an abortion does not constitute grounds for the denial of public assistance; and a description of the stage of development of the fetus. The second prong of the informed consent scheme requires that a woman sign the prescribed form at least twenty-four hours in advance of having an abortion, except in an emergency requiring immediate action. The physician is directed to retain the signed form for seven years, during which time it is not to be released to anyone except with the woman's consent, by judicial order, or to those whose approval is required under the statute.

We note also at this juncture that we have before us in addition to the text of the statute two sets of implementing documents issued pursuant to it: the interim regulations of the Superior Court setting forth in greater detail the procedures to be followed in processing applications for judicial approval, 3 and the forms prepared by the commissioner of public health to be used in obtaining a woman's consent. 4 We join with the parties and the district court in taking these documents as authoritative interpretations of key provisions of the act and view them as integral parts of the regulatory scheme before us. Accordingly, we would consider the statute to present potentially different questions of law to the extent that these interpretations were not in fact adhered to.

The Preliminary Injunction Standard

At the outset we take note of the burden that appellants must meet in order to gain a preliminary injunction, the elements of which have recently been well summarized as follows:

"In the First Circuit, a plaintiff must satisfy four criteria in order to be entitled to a preliminary injunction. The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction." Women's Community Health Ctr., Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979) (citations omitted).

We also note the standard of review applicable to an appeal from a denial of a preliminary injunction, borrowing from another court we believe to have stated the matter well:

"The decision to grant or deny a preliminary injunction is a matter for the discretion of the district court and is reversible, of course, only for an abuse of discretion. It is also well-settled, however, that the application of an improper legal standard in determining the likelihood of success on the merits is never within the district court's discretion. Similarly, misapplication of the law to particular facts is an abuse of discretion. In either of these circumstances, the denial of the preliminary injunction should be reversed and the injunction entered if necessary to protect the rights of the parties." Charles v. Carey, 627 F.2d 772, 776 (7th Cir. 1980) (citations omitted).

With these principles in mind, we turn to the merits of the case before us. Each of the challenged provisions presents difficult questions of law and policy, calling for a careful interpretation of recent Supreme Court cases together with a sensitive weighing of the important constitutional and public policy concerns implicated in the questions left unresolved by those cases. We emphasize that because we hear this matter on appeal from a denial of a preliminary injunction, all of our "conclusions" and "holdings" as to the merits of the various issues presented are to be understood as statements as to probable outcomes. We eliminate repeated reference to this fact at each relevant juncture of this lengthy opinion for purposes of brevity and simplicity.


Our determination of the constitutionality of the parental/judicial approval prerequisite to a minor's receiving an abortion must begin with a review of a trio of recent Supreme Court decisions very much on point: Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976) (Bellotti I ); and, most importantly, Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). In Danforth the Court inter alia held invalid a provision of a Missouri statute that required an unmarried minor seeking an abortion to obtain in advance the consent of one parent or a guardian, unless a physician certified the abortion as "necessary to preserve the life of the mother." See 428 U.S. at 72-75, 96 S.Ct. at 2842-2844. In Bellotti I the Court was presented with the...

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