Planned Parenthood of Southern Arizona v. Neely, CIV 89-489 TUC ACM.

• Decision Date: 08 October 1996
• Docket Number: No. CIV 89-489 TUC ACM.,CIV 89-489 TUC ACM.
• Citation: 942 F.Supp. 1578
• Parties: PLANNED PARENTHOOD OF SOUTHERN ARIZONA AND ITS CORPORATE CHAPTER, ARIZONA WOMEN'S CLINIC, INC.; Planned Parenthood of Central and Northern Arizona, Inc.; and Dr. David Rhae, M.D., and Dr. Maryanna Friederich, M.D., individually and on behalf of their minor patients, Plaintiffs, v. Stephen D. NEELY, as County Attorney for the County of Pima, and as representative for all other prosecuting attorneys similarly situated throughout the State of Arizona, including without limitations City Attorneys, Defendants.
• Court: U.S. District Court — District of Arizona

942 F.Supp. 1578

PLANNED PARENTHOOD OF SOUTHERN ARIZONA AND ITS CORPORATE CHAPTER, ARIZONA WOMEN'S CLINIC, INC.; Planned Parenthood of Central and Northern Arizona, Inc.; and Dr. David Rhae, M.D., and Dr. Maryanna Friederich, M.D., individually and on behalf of their minor patients, Plaintiffs, v. Stephen D. NEELY, as County Attorney for the County of Pima, and as representative for all other prosecuting attorneys similarly situated throughout the State of Arizona, including without limitations City Attorneys, Defendants.

No. CIV 89-489 TUC ACM.

United States District Court, D. Arizona.

October 8, 1996.

John N. Iurino, Lewis & Roca, Tucson, Arizona, for Plaintiffs.

Anthony B. Ching, Office of Attorney General, Phoenix, Arizona, for Defendants.

MEMORANDUM DECISION

MARQUEZ, Senior District Judge.

INTRODUCTION

Plaintiffs originally filed this action on August 29, 1989 to enjoin the Defendants from enforcing the prior version of A.R.S. § 36-2152, which required minor women to obtain parental consent prior to an abortion and imposed criminal penalties on physicians violating the statute. By Order dated September 14, 1992, this Court found that language dealing with "Medical Procedure with Respect to an Abortion" was unconstitutionally vague and further determined that the Statute's medical emergency applied only in life-threatening cases whereas prevailing law requires protection of a woman's right to an abortion without delay if the alternative is a serious health risk. The Court entered a permanent injunction on September 14, 1992. That decision was not appealed.

The Arizona legislature reenacted an amended version of A.R.S. § 36-2152 effective July 20, 1996.

The Court granted Plaintiffs' Motion for Leave to File a Supplemental Complaint challenging the constitutionality of the new statute.

The Plaintiffs are health care providers and physicians providing medical services, including abortions, to unemancipated minor women and thus are parties to whom A.R.S. § 36-2152 purports to apply.

Defendant Stephen D. Neely is the County Attorney for Pima County, Arizona and is the state agent responsible for the administration and enforcement of the statute challenged within the boundaries of Pima County, Arizona. The Court has jurisdiction pursuant to 28 U.S.C. § 2201, 42 U.S.C. § 1983, and the United States Constitution.

The Court has previously certified this action as a Class Action. The Court found that Defendant Neely would fairly and adequately be able to represent the interests of the Class Defendants. The Class Defendants consist of 15 county attorneys, their subordinates, employees, agents, and representatives and all city and other prosecuting attorneys located throughout the State of Arizona and their employees, subordinates, agents, and representatives.

On July 17, 1996, this Court entered a Temporary Restraining Order enjoining the Defendant Stephen D. Neely and all members of the Class from enforcing A.R.S § 36-2152. Counsel were asked to brief the legal issues and the matter was set for hearing on September 6, 1996 (later continued to September 9, 1996).

At the hearing on September 9, 1996, the Court granted the Plaintiffs' Application for a Permanent Injunction. Judgment was entered at that time. This Memorandum explains the Court's reasons for granting of the Permanent Injunction.

ISSUES BEFORE THE COURT

A.R.S. § 36-2152 reads as follows (insofar as material herein): "A person shall not knowingly perform an abortion on a pregnant unemancipated minor unless the attending physician has secured the written consent from one of the minor's parents...." The Statute further provides the circumstances under which an unemancipated minor woman may terminate her pregnancy without first providing this written consent to her physician. Among the circumstances delineated by the Statute is a procedure by which a woman to whom the Statute applies may seek an order from a Superior Court Judge that the procedure may occur without parental consent. The Superior Court must grant such permission if it finds the minor to be "mature" or if performing the abortion without the consent of the parent or guardian would be in her best interest. Plaintiffs complain that although the Statute provides that the court should expedite such judicial bypass proceedings, the Statute contains absolutely no specific time guidelines nor does it direct the Arizona courts to create such guidelines by rule or otherwise. Also, that although the Statute provides that such proceedings be confidential, it fails to provide a specific confidential procedure (Sup.Complaint para. 12).

The Complaint also alleges that the rules promulgated by the Supreme Court under the predecessor to A.R.S. § 36-2152, if they apply under the new Statute, were and remain constitutionally defective and do not provide a sufficiently expeditious and confidential procedure to protect a minor's rights to prompt judicial relief (Sup.Complaint para. 12, pg. 5).

The Supplemental Complaint further alleges that the requirements of the Statute which provide that a physician may avoid criminal liability by establishing "by written evidence" that he or she "relied on evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with the Section are true" places an unduly high burden of proof on providers seeking to defend themselves against civil or criminal liability.

Another challenge to the Statute is the provision that requires an attending physician to certify on the minor's medical records that "on the basis of the physician's good faith clinic judgment" the pregnant minor has a "condition that so complicates her medical condition as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay would create serious risk of substantial and irreversible impairment of major bodily function and there is insufficient time to obtain the required parental consent or judicial authorization." (Sup.Complaint para. 14).

The Defendants have filed a Motion to Dismiss and Motion to Dissolve the Temporary Restraining Order. The Defendants' arguments are as follows:

1.) The Plaintiffs have no standing to challenge the bypass provision;

2.) The Judicial bypass provision is not subject to a facial challenge;

3.) A bypass statute need not contain specific time lines;

4.) There is no requirement that a state bypass law must contain a provision for constructive authorization of the application in case of untimely judicial action;

5.) Whether Rule 102 is still valid is immaterial;¹

6.) An appeal from a bypass ruling is not constitutionally required 7.) The confidentiality provision in the bypass provision is constitutional;

8.) The bypass provision's expedition requirement is constitutional and not vague;

9.) The medical emergency exception is constitutional and not vague; and

10.) The "abortion" definition in the Statute is not vague.

STANDARD OF REVIEW

A young woman is not beyond the protection of the Constitution merely on account of her minority. Bellotti v. Baird (Bellotti II), 443 U.S. 622, 633, 99 S.Ct. 3035, 3043, 61 L.Ed.2d 797 (1979). It follows that it is a constitutional liberty of a minor woman to have some freedom to terminate her pregnancy. The Supreme Court has held the undue burden standard as the appropriate means of reconciling the state's interest with a woman's constitutionally-protected liberty interest. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

A finding of an undue burden is a determination that a state regulation has a purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose or effect is invalid because the means chosen by the state to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. A statute which, while furthering the state's interest in potential life, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends and is an undue burden, and, is unconstitutional. Id.

In its application of the undue burden standard of review, this Court acknowledges the right of the state to enact regulations to further the health or safety of a woman seeking an abortion and to promote its interest in the potentiality of human life subsequent to viability by proscribing abortions "except where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother." Casey, 505 U.S. at 837, 112 S.Ct. at 2799; (reaffirming Roe v. Wade, 410 U.S. 113, 164-65, 93 S.Ct. 705, 732, 35 L.Ed.2d 147 (1973)).

STANDING

The Defendants argue that the court lacks jurisdiction over the adjudication of the bypass provision because the Plaintiffs have no standing to challenge the provision. Defendants cite Lujan v. Defenders of Wildlife, 504 U.S. 555, 558-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) for the standing test: 1) injury in fact; 2) causation; and 3) redressability. Defendants also rely on Cleveland Surgi-Center v. Jones, 2 F.3d 686, 688 (6th Cir.1993) (physicians lacked standing to challenge bypass provision where basis of the claim was that state judges wrongly decided the petitions; judicial decisions of state courts are not redressable) cert. denied, 510 U.S. 1046, 114 S.Ct. 696, 126 L.Ed.2d 663 (1994).

There is no merit to the Defendants' position. The Plaintiffs have standing to bring this action and the court has jurisdiction to consider Plaintiffs' facial challenge to the constitutionality of A.R.S. § 36-2152. Medical providers, such as physicians, who provide abortions have standing to represent their patients. City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 440 n. 30, 103...