Planned Parenthood of Idaho, Inc. v. Wasden

Decision Date16 July 2004
Docket NumberNo. 02-35714.,No. 02-35700.,02-35700.,02-35714.
Citation376 F.3d 908
PartiesPLANNED PARENTHOOD OF IDAHO, INC.; Glenn H. Weyhrich, M.D., Plaintiffs-Appellants, v. Lawrence WASDEN,<SMALL><SUP>*</SUP></SMALL> Attorney General of the State of Idaho; Greg Bower, Ada County Prosecuting Attorney, Defendants-Appellees. Planned Parenthood of Idaho, Inc.; Glenn H. Weyhrich, M.D., Plaintiffs-Appellees, v. Lawrence Wasden,<SMALL><SUP>*</SUP></SMALL> Attorney General of the State of Idaho; Greg Bower, Ada County Prosecuting Attorney, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Helene T. Krasnoff, Planned Parenthood Federation of America, Washington, DC, for the plaintiffs-appellants-cross-appellees.

Clinton E. Minor, Deputy Attorney General and Jeremy Chou, Deputy Attorney General, State of Idaho, Boise, ID; Scott J. Smith, Racine, Olson, Nye, Budge & Bailey, Pocatello, ID, for the defendants-appellees-cross-appellants.

William T. Sali, Kuna, ID, for the amici-curiae.

A. Stephen Hut, Jr., Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for amici-curiae Society for Adolescent Medicine, American Public Health Ass'n and Physicians for Reproductive Choice and Health.

Appeal from the United States District Court for the District of Idaho; Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. CV-00-00353-MHW.

Before HAWKINS, McKEOWN, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

These appeals concern Idaho's law governing minors' access to abortion services. We conclude that the statute's definition of "medical emergency" is unconstitutionally narrow, and that, without an adequate medical exception, the parental consent statute is invalid.

A. The Statutes

The statutes at issue are 2000 Idaho Session Laws 7, Senate Bill No. 1299, and 2001 Idaho Session Laws 277, House Bill No. 340 (together, the "parental consent statute"), which together replaced, amended, or added sections 9-340G, 18-602, 18-604, 18-605, 18-608A, 18-609, 18-609A, 18-614, and 18-615 to the Idaho Code.1 Although the instant suit challenges only sections 18-605, 18-609A, and 18-614, an outline of the overall statutory scheme aids in evaluating the legal issues before us:

Section 18-602 sets forth legislative findings supporting the remainder of the statute; section 18-604 defines various terms used in the statute.

Section 18-605 establishes civil and criminal penalties for persons who perform abortions other than as permitted by the remainder of title 18, chapter 6 of the Idaho Code.

Section 18-609A specifies special consent prerequisites to performing an abortion upon a minor. The law requires either written, informed consent from the minor and her parent; written, informed consent from the minor along with proof of her emancipation; a court order; or the presence of an urgent medical emergency. Idaho Code § 18-609A(1)(a).

An abortion may be performed pursuant to the medical emergency provision only if the attending physician certifies the existence, in his medical judgment, of an emergency so urgent as to require performance of the abortion sooner than parental consent or a court order could be obtained. If an emergency abortion has been performed, the operating physician must provide immediate notice to the minor's parent. If immediate notice is not possible, the physician must take responsibility for the minor's postoperative care, diligently attempt to notify her parent, and eventually provide actual notice to her parent that the abortion was performed and why. Should the physician believe notification of a parent would endanger the minor, or if the minor is homeless or abandoned, he can discharge his duty by making a report to law enforcement to that effect. Id. § 18-609A(1)(a)(v).

The term "medical emergency," central to our decision in this case, is defined as follows:

(i) "Medical emergency" means a sudden and unexpected physical condition which, in the reasonable medical judgment of any ordinarily prudent physician acting under the circumstances and conditions then existing, is abnormal and so complicates the medical condition of the pregnant minor as to necessitate the immediate causing or performing of an abortion:

1. To prevent her death; or

2. Because a delay in causing or performing an abortion will create serious risk of immediate, substantial and irreversible impairment of a major physical bodily function of the patient.

(ii) The term "medical emergency" does not include:

1. Any physical condition that would be expected to occur in normal pregnancies of women of similar age, physical condition and gestation; or

2. Any condition that is predominantly psychological or psychiatric in nature.

Id. § 18-609A(5)(c).

Section 18-609A(1)(b) specifies how a minor may bypass the parental consent requirement: The minor may file a bypass petition in the county of her residence or in the one in which the abortion is to be performed. The minor may assert in her petition either that she is sufficiently mature to provide her own consent to the procedure or that, notwithstanding her lack of maturity, the procedure would be in her best interest. If the minor requests aid in completing the petition, Idaho must provide it, through a guardian ad litem (who must be an attorney) or through some other person. Id. § 18-609A(1)(b)(i) & (ii).

At a hearing on the petition, the minor may be assisted by a guardian ad litem. If no attorney is available to fill that role, the court may appoint a nonattorney. Id. § 18-609A(1)(b)(iii). After holding a hearing, at which the court may hear any relevant evidence, the court must, within five days, determine whether the minor has shown sufficient maturity to be allowed to choose to end her pregnancy; whether, notwithstanding her failure to make that showing, an abortion would nonetheless be in her best interests; or whether neither of these circumstances obtains and the petition should be denied. Id. § 18-609A(1)(b)(iv). The five-day deadline can be delayed should the minor so request or for "other good cause." Id. § 18-609A(1)(d). The minor may within two days appeal an order denying her petition; the appeal is to receive expedited attention. Id. § 18-609A(1)(c).

The court hearing the petition is obligated to order an "investigation" if the evidence it receives in hearing the petition makes it aware of facts that would, if true, constitute a criminal offense under Idaho law or a violation of Idaho child-protection laws, "with due consideration for the confidentiality of the [bypass] proceedings." Id. § 18-609A(1)(b)(iv). A bypass petitioner's statements at the bypass hearing will generally be inadmissible against her in any criminal prosecution arising from the investigation triggered by her bypass hearing. Id.

Physicians accused of violating section 18-609A have an affirmative defense to prosecution if, prior to the procedure, they obtained identification from the woman seeking the abortion that a reasonable person would take to prove she was either emancipated or of the age of majority. Id. § 18-614(1). If the abortion was performed due to a medical emergency, the physician may obtain the identification after performing the abortion, and may claim the defense so long as he is unable to determine her age "after reasonable inquiry." Id. § 18-614(3).2

Finally, section 18-615 provides a severability clause, asserting that the legislature "would have passed every section ... and each provision, section, subsection, sentence, clause, phrase or word" regardless of the invalidation of any other part of the statute.

B. The Litigation

This case began in June 2000, when Glenn H. Weyhrich, M.D., a Boise obstetrician-gynecologist, and Planned Parenthood of Idaho, Inc. ("Planned Parenthood"), a not-for-profit medical and educational service that does not perform abortions, filed suit challenging the then-new parental consent statute. The complaint sought to enjoin the defendants — the Idaho attorney general and the district attorney for Ada County, where Boise is located — from enforcing the entirety of the 2000 Act.3 The complaint challenged as facially unconstitutional the identification requirement contained in section 18-614, as enacted by the 2000 Act; the judicial bypass provision; the post-emergency-abortion parental notification requirement; and certain features of the criminal liability to which physicians were exposed. The district court preliminarily enjoined the enforcement of (1) the identification requirement; (2) the felony provisions, in any prosecution arising from an alleged medical emergency; and (3) the venue provision of the judicial bypass procedure, which under the 2000 Act allowed a minor to file a petition only in her home county.

In response to the preliminary injunction in this case, the Idaho legislature enacted the 2001 Act. That Act, as relevant here, revised the felony provision; replaced the affirmative-identification requirement with the affirmative defense, described above; and expanded the venue provision to allow a bypass petition to be filed either in the minor's home county or in the county in which the procedure would be performed.

The plaintiffs' amended complaint, as revised to reflect the 2001 amendments, charged that the Idaho regime (1) provides an inadequate judicial bypass to the parental consent requirement (section 18-609A(1)(a)(iv) & (b)-(d)); (2) insufficiently provides for access to abortion where a minor woman's life or health is threatened by her pregnancy (section 18-609A(1)(a)(v) & (5)(c)); (3) improperly requires parental notification after an emergency abortion (section 18-609A(1)(a)(v)); and (4) is unconstitutionally vague in defining the civil and criminal liability to which abortion providers are subject (sections 18-605 & 18-614). The plaintiffs prayed for declaratory and injunctive relief against sections 18-605, 18-609A, and 18-614,...

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