Planned Parenthood of Blue Ridge v. Camblos, 97-1853

• Decision Date: 20 August 1998
• Docket Number: No. 97-1853,97-1853
• Citation: 155 F.3d 352
• Parties: PLANNED PARENTHOOD OF THE BLUE RIDGE; Herbert C. Jones, Jr., M.D.; Planned Parenthood of Metropolitan Washington; Virginia League for Planned Parenthood; Hillcrest Clinic; Richmond Medical Center for Women; Thomas Gresinger, M.D.; Commonwealth Women's Clinic; Planned Parenthood of Southeastern Virginia, Plaintiffs-Appellees, v. James L. CAMBLOS, in his official capacity as Commonwealth's Attorney for the County of Albemarle, and as a representative of all the Commonwealth's Attorneys in Virginia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 352

155 F.3d 352

PLANNED PARENTHOOD OF THE BLUE RIDGE; Herbert C. Jones,

Jr., M.D.; Planned Parenthood of Metropolitan Washington;

Virginia League for Planned Parenthood; Hillcrest Clinic;

Richmond Medical Center for Women; Thomas Gresinger, M.D.;

Commonwealth Women's Clinic; Planned Parenthood of

Southeastern Virginia, Plaintiffs-Appellees, v James L. CAMBLOS, in his official capacity as Commonwealth's Attorney for the County of Albemarle, and as a representative of all the Commonwealth's Attorneys in Virginia Defendant-Appellant.

No. 97-1853

United States Court of Appeals Fourth Circuit.

Argued March 3, 1998.

Decided Aug. 20, 1998.

ARGUED: William Henry Hurd, Deputy Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Simon Heller, The Center for Reproductive Law & Policy, New York City, for Appellees. ON BRIEF: Richard Cullen, Attorney General of Virginia, Claude A. Allen, Deputy

Attorney General, Siran S. Faulders, Senior Assistant Attorney General, Garland L. Bigley, Assistant Attorney General, Alison P. Landry, Assistant Attorney General, Brian M. McCormick, Assistant Attorney General, Daniel J. Poynor, Assistant Attorney General, Rita R. Woltz, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Karen A. Raschke, Macaulay, Lee & Powell, Richmond, Virginia, for Appellees.

Before WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON and Judges WIDENER, WILKINS, NIEMEYER, and WILLIAMS joined. Chief Judge WILKINSON wrote a concurring opinion. Judge WIDENER wrote a concurring opinion. Judge MICHAEL wrote an opinion concurring in the judgment, in which Judges MURNAGHAN, ERVIN, and DIANA GRIBBON MOTZ joined.

OPINION

LUTTIG, Circuit Judge:

Following eighteen years of public debate among the citizens of the Commonwealth of Virginia, the General Assembly of the Commonwealth enacted, and the Governor of the Commonwealth signed into law, the state's Parental Notice Act, which requires that a minor who decides to have an abortion inform one of her parents twenty-four hours prior to performance of the procedure. Only hours before this law was to become effective, the federal district court for the Western District of Virginia enjoined enforcement of the Act by the Commonwealth. Upon extraordinary motion of Virginia's Attorney General, we immediately stayed the district court's injunction, and allowed the law to become effective in accordance with its terms.

We hold today that the Commonwealth's parental notice statute, as legislation that respects the fundamental interests of responsible parents in the rearing and in the educational, moral, and religious development of their children, without unduly burdening the fundamental abortion right, is facially constitutional under the Fourteenth Amendment. A contrary holding--that the People of Virginia are forbidden by the Constitution of the United States from requiring that the responsible mother and father of a pregnant teenage daughter even be told of the life-defining decision their own daughter confronts--we are convinced, would be a holding not of law, but of will, and thus would betray the trust upon which our very legitimacy as an institution depends.

I.

Virginia's Governor Allen signed into law the Commonwealth's Parental Notice Act, Va.Code § 16.1-241(V), on March 22, 1997. The Virginia General Assembly had passed the measure a month earlier. By its terms, the Act was to become effective at 12:01 Tuesday morning, July 1, 1997.

As the title denotes, the Act is a parental notice statute, not a parental consent statute; it prohibits a physician from performing an abortion on an unemancipated minor unless, twenty-four hours in advance of the procedure, notice of the anticipated abortion is provided to one of the minor's parents, to a duly appointed legal guardian or custodian of the minor, or to one standing in loco parentis to the minor.

The Act expressly allows the performance of abortions without notice in circumstances in which the minor seeking the abortion has been the victim of parental abuse or neglect, and in circumstances in which either an abortion is immediately necessary to prevent the mother's death or there is insufficient time to permit notification without exposing the minor to serious health risk.

Although the Supreme Court has never held that a parental notification law must include a judicial bypass procedure in order to withstand constitutional challenge, the Parental Notice Act includes such a procedure. That procedure permits, if it does not require, authorization of an abortion without parental notification for a minor who shows that she is mature and capable of giving informed consent, and it requires such authorization for an immature minor, and at least the abused mature minor as well, as to whom it is determined that an abortion would be in her best interest.

The Act confers upon every minor who avails herself of the bypass procedure the right to participate in the court proceedings on her own behalf and to have counsel assist her throughout the proceedings. If the minor so requests, the court is obligated to appoint counsel for the purpose of assisting the young woman in the bypass proceedings.

The Act also provides that bypass proceedings, which are to be conducted before the Commonwealth's Juvenile and Domestic Relations District Court, "shall be confidential." And the statute further provides both that judicial bypass proceedings "shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor" and that bypass petitions "shall be heard as soon as practicable but in no event later than four days after the petition [seeking judicial authorization] is filed." Finally, the Act provides any minor for whom judicial bypass of notification is denied "an expedited confidential appeal to the circuit court."

Notwithstanding the Commonwealth's inclusion of a judicial bypass procedure in its Parental Notice Act, and of the other aforementioned safeguards, the Federal District Court for the Western District of Virginia, on the eve of the Act's effective date, preliminarily enjoined enforcement of the Act by the Commonwealth, holding that a substantial probability exists that the Act is facially unconstitutional. See District Court's Memorandum Op. at 7-8.

At 4:00 p.m. that afternoon, following issuance of the district court's order and the district court's subsequent denial of the Commonwealth's motion for stay of its decision, the Commonwealth filed a motion with a single Circuit Judge to stay the district court's injunction, and, at 7:45 p.m. that night, the judgment of the district court was stayed pending appeal. See Planned Parenthood v. Camblos, 116 F.3d 707 (4th Cir.1997). The stay was thereafter affirmed by the en banc court, see Planned Parenthood v. Camblos, 125 F.3d 884 (4th Cir.1997), and the full en banc court subsequently heard oral argument in the matter on March 3, 1998.

II.

In enjoining Virginia's Parental Notice Act, the district court relied entirely upon the Supreme Court's decision in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ), reasoning that, in that decision, the Supreme Court had set forth the constitutional standards applicable to state parental notification statutes, not merely parental consent statutes. Thus, said the district court, "[t]his court will ... apply [Planned Parenthood v.] Casey, [505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ] and Bellotti II to the case at bar. Bellotti II requires that a judicial bypass satisfy four criteria." Memorandum Op. at 9 (footnote and citation omitted). And the court went on to examine the judicial bypass provisions of Virginia's parental notification statute under the criteria identified by the Court in Bellotti II as essential in order for a judicial bypass procedure within a parental consent statute to satisfy the Constitution.

Specifically, the district court observed that the Supreme Court in Bellotti II held that "[i]f [a pregnant minor] satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent." Memorandum Op. at 10 (quoting Bellotti II, 443 U.S. at 647, 99 S.Ct. 3035 (op. of Powell, J.) (emphasis added by district court)). The court then contrasted this requirement with the relevant provision of the Commonwealth's Act, which provides that, "[a]fter a hearing, a judge may authorize a physician to perform an abortion upon finding that the minor is mature and capable of giving informed consent to the proposed abortion." Id. (quoting Va.Code § 16.1-241(V) (emphasis added by district court)). Concluding that the Virginia statute confers upon the judicial officer the absolute discretion whether to authorize a physician to perform an abortion without notice on a minor whom the court has determined is mature, the district court held that "[t]his discretion violates the Bellotti II rule for 'mature' minors." Memorandum Op. at 11.

As discussed more fully below, although the Supreme Court held in Bellotti II that parental consent statutes must include specified judicial bypass procedures, including mandatory judicial bypass for mature minors, the Court did not address what, if any, such procedures are necessary in the context of a parental notice statute, like that enacted by the Commonwealth. And although the Supreme Court has subsequently upheld parental notice statutes which included Bellotti II-style bypass procedures, see Lambert v. Wicklund, 520 U.S. 292, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997) (per curiam)...