Planned Parenthood of Rocky Mountains v. Owens, No. 00-1385.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLucero
PartiesPLANNED PARENTHOOD OF THE ROCKY MOUNTAINS SERVICES, CORPORATION; Peter A. Vargas, M.D.; Boulder Abortion Clinic, P.C.; Warren M. Hern, M.D.; James A. McGregor, M.D.; Michael D. Rudnick, M.D.; Aris M. Sophocles, Jr., M.D.; and Women's Choice of Boulder Valley, Inc., Plaintiffs-Appellees, v. William OWENS, in his official capacity as Governor of the State of Colorado; David J. Thomas, in his official capacity as District Attorney for the First Judicial District, State of Colorado; A. William Ritter, Jr., in his official capacity as District Attorney for the Second Judicial District, State of Colorado; Glenn Davis, in his official capacity as District Attorney for the Third Judicial District, State of Colorado; Jeanne Marie Smith, in her official capacity as District Attorney for the Fourth Judicial District, State of Colorado; Michael Goodbee, in his official capacity as District Attorney for the Fifth Judicial District, State of Colorado; Sarah Law, in her official capacity as District Attorney for the Sixth Judicial District, State of Colorado; Wyatt Angelo, in his official capacity as District Attorney for the Seventh Judicial District, State of Colorado; Stuart A. Van Meveren, in his official capacity as District Attorney for the Eighth Judicial District, State of Colorado; Mark McLucas Myers, in his official capacity as District Attorney for the Ninth Judicial District, State of Colorado; Gus Sanstrom, in his official capacity as District Attorney for the Tenth Judicial District, State of Colorado; Edward J. Rodgers, III, in his official capacity as District Attorney for the Eleventh Judicial District, State of Colorado; Robert Pastore, in his official capacity as District Attorney for the Twelfth Judicial District, State of Colorado; Mark Adams, in his official capacity as District Attorney for the Thirteenth Judicial District, State of Colorado; Paul R. McLimans, in his official capacity as District Attorney for the Fourteenth Judicial District, State of Colorado; Ronald F. Foster, in his official capacity as District Attorney for the Fifteenth Judicial District, State of Colorado; Gary Stork, in his official capacity as District Attorney for the Sixteenth Judicial District, State of Colorado; Robert S. Grant, in his official capacity as District Attorney for the Seventeenth Judicial District, State of Colorado; James Peters, in his official capacity as District Attorney for the Eighteenth Judicial District, State of the Nineteenth Judicial District, State of Colorado; Al Dominguez, in his official capacity as District Attorney for the Nineteenth Judicial District, State of Colorado; Alexander M. Hunter, in his official capacity as District Attorney for the Twentieth Judicial District, State of Colorado; Frank J. Daniels, in his official capacity as District Attorney for the Twenty-First Judicial District, State of Colorado; Michael F. Green, in his official capacity as District Attorney for the Twenty-Second Judicial District, State of Colorado, Defendants-Appellants, Colorado Pro Life Alliance, Inc.; United Families International, Inc.; Society for Adolescent Medicine; Colorado Chapter of the American Academy of Pediatrics; American Medical Women's Association; American Public Health Association, Amici Curiae.
Docket NumberNo. 00-1385.
Decision Date17 April 2002
287 F.3d 910
PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS SERVICES, CORPORATION; Peter A. Vargas, M.D.; Boulder Abortion Clinic, P.C.; Warren M. Hern, M.D.; James A. McGregor, M.D.; Michael D. Rudnick, M.D.; Aris M. Sophocles, Jr., M.D.; and Women's Choice of Boulder Valley, Inc., Plaintiffs-Appellees,
v.
William OWENS, in his official capacity as Governor of the State of Colorado; David J. Thomas, in his official capacity as District Attorney for the First Judicial District, State of Colorado; A. William Ritter, Jr., in his official capacity as District Attorney for the Second Judicial District, State of Colorado; Glenn Davis, in his official capacity as District Attorney for the Third Judicial District, State of Colorado; Jeanne Marie Smith, in her official capacity as District Attorney for the Fourth Judicial District, State of Colorado; Michael Goodbee, in his official capacity as District Attorney for the Fifth Judicial District, State of Colorado; Sarah Law, in her official capacity as District Attorney for the Sixth Judicial District, State of Colorado; Wyatt Angelo, in his official capacity as District Attorney for the Seventh Judicial District, State of Colorado; Stuart A. Van Meveren, in his official capacity as District Attorney for the Eighth Judicial District, State of Colorado; Mark McLucas Myers, in his official capacity as District Attorney for the Ninth Judicial District, State of Colorado; Gus Sanstrom, in his official capacity as District Attorney for the Tenth Judicial District, State of Colorado; Edward J. Rodgers, III, in his official capacity as District Attorney for the Eleventh Judicial District, State of Colorado; Robert Pastore, in his official capacity as District Attorney for the Twelfth Judicial District, State of Colorado; Mark Adams, in his official capacity as District Attorney for the Thirteenth Judicial District, State of Colorado; Paul R. McLimans, in his official capacity as District Attorney for the Fourteenth Judicial District, State of Colorado; Ronald F. Foster, in his

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official capacity as District Attorney for the Fifteenth Judicial District, State of Colorado; Gary Stork, in his official capacity as District Attorney for the Sixteenth Judicial District, State of Colorado; Robert S. Grant, in his official capacity as District Attorney for the Seventeenth Judicial District, State of Colorado; James Peters, in his official capacity as District Attorney for the Eighteenth Judicial District, State of the Nineteenth Judicial District, State of Colorado; Al Dominguez, in his official capacity as District Attorney for the Nineteenth Judicial District, State of Colorado; Alexander M. Hunter, in his official capacity as District Attorney for the Twentieth Judicial District, State of Colorado; Frank J. Daniels, in his official capacity as District Attorney for the Twenty-First Judicial District, State of Colorado; Michael F. Green, in his official capacity as District Attorney for the Twenty-Second Judicial District, State of Colorado, Defendants-Appellants,
Colorado Pro Life Alliance, Inc.; United Families International, Inc.; Society for Adolescent Medicine; Colorado Chapter of the American Academy of Pediatrics; American Medical Women's Association; American Public Health Association, Amici Curiae.
No. 00-1385.
United States Court of Appeals, Tenth Circuit.
April 17, 2002.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Maurice G. Knaizer, Deputy Attorney General (Ken Salazar, Attorney General, John S. Sackett, Assistant Attorney General, State of Colorado, Denver, Colorado; A. William Ritter, Jr., District Attorney, Henry R. Reeve, Deputy District Attorney, Second Judicial District, Denver, Colorado; and Jeanne M. Smith, District Attorney, Fourth Judicial District, Colorado Springs, Colorado, with him on the briefs), for Defendants-Appellants.

Jennifer Ellen Dalven, American Civil Liberties Union Foundation Reproductive Freedom Project, New York, N.Y. (Louise Melling, American Civil Liberties Union Foundation Reproductive Freedom Project, New York, NY, Edward T. Ramey, Isaacson, Rosenbaum, Woods & Levy, P.C., Denver, CO, Tim Atkeson and Keri Howe, Arnold & Porter, Denver, CO, Mark Silverstein, American Civil Liberties Union Foundation of Colorado, Denver, CO, Kevin C. Paul, Planned Parenthood of the Rocky Mountains, Inc., Denver, CO, with her on the brief), for Plaintiffs-Appellees.

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Paul Benjamin Linton, Northbrook, IL, filed an amici curiae brief on behalf of the Colorado Pro Life Alliance, Inc., and United Families International, Inc., in support of Defendants-Appellants.

A. Stephen Hut, Jr., Kimberly A. Parker, and Julie M. Riewe, Wilmer, Cutler & Pickering, Washington, DC, filed an amici curiae brief on behalf of the Society for Adolescent Medicine, the Colorado Chapter of the American Academy of Pediatrics, the American Medical Women's Association, and the American Public Health Association, in support of Plaintiffs-Appellees.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.


Plaintiffs filed suit seeking to have a Colorado statute regulating abortion declared unconstitutional and to have enforcement of that statute enjoined. The district court granted summary judgment for plaintiffs, holding that the lack of a health exception for the parental notification requirement of the statute rendered it unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

The Colorado Parental Notification Act ("PNA") was adopted as an initiative in Colorado's general election of November 3, 1998.1 It generally requires that minors in the state of Colorado provide notice to at least one of their parents before obtaining an abortion. The legislative declaration of the act states:

The people of the state of Colorado ... declare that family life and the preservation of the traditional family unit are of vital importance to the continuation of an orderly society; that the rights of parents to rear and nurture their children during their formative years and to be involved in all decisions of importance affecting such minor children should be protected and encouraged, especially as such parental involvement relates to the pregnancy of an unemancipated minor, recognizing that the decision by any such minor to submit to an abortion may have adverse long-term consequences for her.

Colo.Rev.Stat. § 12-37.5-102.

Performance of an abortion on an "unemancipated minor" is specifically prohibited until at least forty-eight hours after written notice is delivered to the minor's parent, guardian, or foster parent. Id. §§ 12-37.5-103(2), -104(1). Violation of the PNA is a class one misdemeanor and creates liability for civil damages. Id. § 12-37.5-106(1).2

There are two exceptions to the PNA's notice requirement. First, the notice requirement does not apply if the persons entitled to notice certify in writing that they have already been notified. Id. § 12-37.5-105(a). Second, the notice requirement does not apply if the minor declares that she is a victim of child abuse or neglect by the persons entitled to notice, and the physician reports this fact in accordance with Colorado law. § 12-37.5-105(b). Two affirmative defenses to liability also exist. First, the physician is absolved

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from liability if he shows that he reasonably relied upon representations by the minor indicating compliance with the PNA. Id. § 12-37.5-106(2)(a). Second, the physician can show that the abortion was necessary to prevent the imminent death of the minor and that there was insufficient time to provide the required notice. § 12-37.5-106(2)(b).

Plaintiffs filed suit challenging the constitutionality of the PNA on December 22, 1998.3 Named defendants originally were the governor of Colorado and one local district attorney; the suit was later expanded to include all local district attorneys in Colorado.4 One of plaintiffs' claims was that the PNA was facially unconstitutional because it lacked an exception permitting a physician to perform an abortion without notice or a waiting period even when necessary to protect the health of the pregnant minor.5 Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 107 F.Supp.2d 1271, 1275 (D.Colo. 2000). The district court granted summary judgment for plaintiffs on this claim. Id. at 1276.

We review the district court's grant of summary judgment de novo. Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmovant. Simms, 165 F.3d at 1326. "The mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create a dispute of fact that is `genuine'; an issue of material fact is genuine only if the nonmovant presents facts such that a reasonable jury could find in favor of the nonmovant." Id. (quotation omitted). In the absence of a genuine issue of material fact, we determine whether the district court correctly applied the substantive law. Id.

II

Key to resolution of this case is our answer to this question: Does the United States Constitution, as interpreted by the Supreme Court, require that state abortion regulations provide a health exception where such an exception is necessary to ensure that those regulations do not

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threaten the health of a pregnant woman? If the answer is yes, then a subsidiary and related question that we must also answer is: What is the appropriate standard of review to apply when a lawsuit...

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70 practice notes
  • National Abortion Federation v. Ashcroft, No. 03 CIV. 8695(RCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 26, 2004
    ...exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Hope Clinic v. Ryan, 249 F.3d 603, 604 (7th Cir.2001); Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir.2000); Causeway......
  • Impact Energy Res., LLC v. Salazar, Nos. 11–4043
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 5, 2012
    ...same subject matter—should be construed consistently with each other. See Planned Parenthood of Rocky Mountains Servs., Corp. v. Owens, 287 F.3d 910, 923 n. 13 (10th Cir.2002); Erlenbaugh v. United States, 409 U.S. 239, 243, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972) (“The rule of in pari materia ......
  • Planned Parenthood v. Heed, No. 04-1161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 24, 2004
    ...health exception requirement to parental notice or consent laws. In Planned Parenthood of the Rocky Mountains Services, Corp. v. Owens, 287 F.3d 910, 915-16 (10th Cir.2002), the Tenth Circuit held that, because circumstances existed in which a pregnancy complication could seriously threaten......
  • Richmond Medical Center for Women v. Hicks, No. 03-1821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 3, 2005
    ...the matter as one of legislative fact produces the nationally uniform approach that [Carhart] demands."); Planned Parenthood v. Owens, 287 F.3d 910, 918 (10th Cir.2002) (explaining that Carhart requires "state abortion regulations [to] provide an exception for the protection of the health o......
  • Request a trial to view additional results
70 cases
  • National Abortion Federation v. Ashcroft, No. 03 CIV. 8695(RCC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 26, 2004
    ...exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Hope Clinic v. Ryan, 249 F.3d 603, 604 (7th Cir.2001); Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir.2000); Causeway......
  • Impact Energy Res., LLC v. Salazar, Nos. 11–4043
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 5, 2012
    ...same subject matter—should be construed consistently with each other. See Planned Parenthood of Rocky Mountains Servs., Corp. v. Owens, 287 F.3d 910, 923 n. 13 (10th Cir.2002); Erlenbaugh v. United States, 409 U.S. 239, 243, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972) (“The rule of in pari materia ......
  • Planned Parenthood v. Heed, No. 04-1161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 24, 2004
    ...health exception requirement to parental notice or consent laws. In Planned Parenthood of the Rocky Mountains Services, Corp. v. Owens, 287 F.3d 910, 915-16 (10th Cir.2002), the Tenth Circuit held that, because circumstances existed in which a pregnancy complication could seriously threaten......
  • Richmond Medical Center for Women v. Hicks, No. 03-1821.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 3, 2005
    ...the matter as one of legislative fact produces the nationally uniform approach that [Carhart] demands."); Planned Parenthood v. Owens, 287 F.3d 910, 918 (10th Cir.2002) (explaining that Carhart requires "state abortion regulations [to] provide an exception for the protection of the health o......
  • Request a trial to view additional results

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