Planned Parenthood of Northern New England v. Heed

• Citation: 296 F.Supp.2d 59
• Decision Date: 29 December 2003
• Docket Number: No. CIV. 03-491-JD.,CIV. 03-491-JD.
• Parties: PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D., v. Peter HEED, Attorney General of New Hampshire
• Court: U.S. District Court — District of New Hampshire

296 F.Supp.2d 59

PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D., v. Peter HEED, Attorney General of New Hampshire

No. CIV. 03-491-JD.

United States District Court, D. New Hampshire.

December 29, 2003.

COPYRIGHT MATERIAL OMITTED

Dara Klassel, Planned Parenthood Federation of America, Inc., Jennifer Dalven, American Civil Liberties Union Foundation, New York City, Martin P. Honigberg, Sulloway & Hollis, Concord, NH, Lawrence A. Vogelman, Shuchman Krause & Vogelman, Exeter, NH, for Plaintiffs.

Daniel J. Mullen, NH Attorney General's Office, Concord, NH, for Defendant.

ORDER

DICLERICO, District Judge.

The plaintiffs bring an action pursuant to 42 U.S.C. § 1983, seeking to have the Parental Notification Prior to Abortion Act ("Act"),¹ passed by the New Hampshire legislature, declared unconstitutional. The plaintiffs also seek an injunction to prevent enforcement of the Act. The Attorney General contends that the Act is constitutional and objects to an injunction.

At the plaintiff's request, this case has been given expedited consideration by the court in view of the fact that the Act is due to become effective on December 31, 2003.

After carefully reviewing the provisions of the Act and the applicable United States Supreme Court precedents, the court has concluded that the Act fails to meet the constitutional requirements as determined by the United States Supreme Court. Therefore, the Act cannot be enforced.

Background

In June of 2003, the New Hampshire Senate and House of Representatives passed "AN ACT requiring parental notification before abortions may be performed on unemancipated minors." The Act defines "abortion" as:

the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove an ectopic pregnancy or the products from a spontaneous miscarriage.

RSA 132:24, I (eff.12/31/03). The central provision of the Act is a prohibition on abortion in the absence of parental notification:

No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

RSA 132:25, I. Paragraph II requires written notice to be addressed to the parent at the parent's "usual place of abode" and to be "delivered personally by the physician or an agent." Paragraph III provides an alternative to allow notice by certified mail, return receipt requested, with delivery restricted to the addressee.

Notice is not required if the physician "certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death and there is insufficient time to provide the required notice; or [][t]he person or persons who are entitled to notice certify in writing that they have been notified." RSA 132:26,I. If the pregnant minor does not want to notify a parent, she may, alternatively, seek court authorization for the abortion. RSA 132:26, II. In that case, the court is required to hold a hearing and then determine whether "the pregnant minor is mature and capable of giving informed consent to the proposed abortion" or "whether the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests." Id. Such court proceedings "shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant minor." RSA 132:26,II(b).

Violation of the Act carries penalties. "Performance of an abortion in violation of this subdivision shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification." RSA 132:27. Liability may be avoided if the person who performed the abortion can establish "by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding the information necessary to comply with this section are bone [sic] fide and true, or if the person has attempted with reasonable diligence to deliver notice, but has been unable to do so." Id.

The plaintiffs simultaneously filed their complaint and a motion for a preliminary injunction to prevent the Act from being enforced once it becomes effective on December 31, 2003. The Attorney General filed an objection, and the plaintiffs filed a reply. No surreply was filed. The parties have agreed that the court may decide the plaintiffs' requests for a declaratory judgment and permanent injunctive relief on the merits based on their present filings.

Discussion

The plaintiffs contend that the Act is unconstitutional because it lacks an exception to the parental notice requirement in circumstances when the delay would threaten the health of the pregnant minor. They also contend that the Act's exception to prevent death is unconstitutionally narrow and that the confidentiality requirement for court proceedings is insufficient. The Attorney General argues that a health exception is not constitutionally required in a parental notification law, that either the judicial bypass or other New Hampshire statutes adequately protect the health of a pregnant minor, that the Act would not be applied to physicians who act in good faith, and that the confidentiality provision is sufficient.

I. Declaratory Judgment

Pursuant to 28 U.S.C. § 2201(a), the court "may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." The plaintiffs seek a declaration that the Act is unconstitutional on its face.

The parties dispute the appropriate standard for evaluating a facial challenge to the validity of a state law regulating abortion. When plaintiffs bring a facial constitutional challenge to state law, they ordinarily must show that "`no set of circumstances exists under which the Act would be valid.'" Pharm. Res. & Mfrs. of Am. v. Concannon, 249 F.3d 66, 77 (1st Cir.2001) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)), aff'd sub nom Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003). That high hurdle, however, applies only when the plaintiffs challenge a state law "that does not regulate constitutionally protected conduct." Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir.2002).

In Casey, the Court considered the facial constitutionality of a Pennsylvania law that imposed conditions on performing abortions for both adult and minor patients and, without mentioning Salerno, applied a standard of whether the challenged law imposes an "undue burden" or "will operate as a substantial obstacle to a woman's choice to undergo an abortion." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874, 877 & 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000), the Court concluded that a Nebraska abortion statute was unconstitutional, after applying a three level test, including the "undue burden" standard, also without mentioning Salerno.

The First Circuit has not addressed the question of whether the Salerno standard applies in the context of abortion legislation.² Several other courts have concluded, however, that Casey and Stenberg provide the governing standard and that the Salerno standard does not apply. See, e.g., A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.2002), cert. denied A Woman's Choice-East Side Women's Clinic v. Brizzi, 537 U.S. 1192, 123 S.Ct. 1273, 154 L.Ed.2d 1026 (2003); Planned Parenthood of the Rocky Mts. Servs. v. Owens, 287 F.3d 910, 917 (10th Cir.2002); Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142-43 (3d Cir.2000); Planned Parenthood of Southern Ariz. v. Lawall, 180 F.3d 1022, 1025-26 (9th Cir.1999), amended on denial of rehear'g, 193 F.3d 1042 (9th Cir.1999); R.I. Med. Soc'y v. Whitehouse, 66 F.Supp.2d 288, 312-13 (D.R.I.1999) (citing additional cases). The Fourth and Fifth Circuits alone have chosen to apply Salerno in the context of abortion legislation. See Manning v. Hunt, 119 F.3d 254, 269 (4th Cir.1997) (noting circuit split and citing cases). This court is satisfied that the Casey and Stenberg standard applies in the context of abortion legislation, as is well documented by a majority of courts that have considered the question. Therefore, that standard will be followed in this case.

The United States Supreme Court decided in 1973 that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In Roe, the Supreme Court held that a Texas criminal statute which excepted "only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment." Id. at 164, 93 S.Ct. 705. The Supreme Court has also held that minors, as well as adults, have a constitutional right to choose an abortion. See Bellotti v. Baird, 443 U.S. 622, 633, 642, 99 S.Ct. 3035, 61...