Planned Parenthood, Rocky Mountains Serv. V. Owens
| Decision Date | 16 August 2000 |
| Docket Number | No. Civ.A. 99-WM-60.,Civ.A. 99-WM-60. |
| Citation | 107 F.Supp.2d 1271 |
| Parties | 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, 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; Sara 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 E. 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 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; and Michael F. Green, in his official capacity as District Attorney for the Twenty-Second Judicial District, State of Colorado; Defendants. |
| Court | Colorado Supreme Court |
Edward T. Ramey, Blain D. Myhre, Stacey Stern Chapman, Isaacson, Rosenbaurm, Woods & Levy, P.C., Denver, CO, Tim Atkeson, Arnold & Porter, Denver, CO, Kevin D. Paul, Office of Special Counsel, Planned Parenthood of the Rocky Mountains, Inc., Denver, CO, Mark Silverstein, American Civil Liberties Union Foundation of Colorado, Denver, CO, Louise Melling, Jennifer E. Dalven, Jody Yetzer, Talcott Camp, American Civil Liberties Union Foundation, Reproductive Freedom Project, New York City, for plaintiffs.
Ken Salazar, Attorney General, Maurice G. Knaizer, Deputy Attorney General, Denver, CO, Henry R. Reeve, Robert J. Whitley, Office of the District Attorney, Denver, CO, Jeanne M. Smith, District Attorney, Fourth Judicial District, Colorado Springs, CO, for defendants.
The issue of this case is whether the Colorado Parental Notification Act (Act)1, Colo.Rev.Stat. §§ 12-37.5-101, et seq. (1998), which requires a physician to notify the parents of a minor prior to performing an abortion upon her, violates the minor's rights protected by the United States Constitution.
The organizational plaintiffs are corporations that provide abortion services to women under the age of eighteen. The individual plaintiffs are physicians in the state of Colorado who perform abortions. The plaintiffs bring this action on behalf of themselves and their minor patients.
Defendant William Owens is the governor of the state of Colorado. The remaining defendants are the district attorneys from the twenty-two judicial districts of the state of Colorado who handle criminal indictments, informations, actions and proceedings within their respective districts. All defendants are sued in their official capacities.
The Colorado Parental Notification Act — a citizen-initiated measure — was approved at Colorado's general election on November 3, 1998, and proclaimed law by the governor on December 31, 1998. Its legislative declaration states:
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.
"Minor" is defined as "a person under eighteen years of age," Colo.Rev.Stat. § 12-37.5-103(1), but no definition is provided for an "unemancipated" minor.
"Abortion" is defined as "the use of any means to terminate the pregnancy of a minor with knowledge that the termination by those means will, with reasonable likelihood, cause the death of that person's unborn offspring at any time after fertilization." Colo.Rev.Stat. § 12-37.5-103(3).
The Act generally prohibits physicians from performing abortions on an "unemancipated minor" until at least 48 hours after written notice has been delivered to the minor's parent, guardian or foster parent. Colo.Rev.Stat. §§ 12-37.5-103(2), 104(1). Delivery must be made to both of the minor's parents if they are living or to one parent if only one is living or one "cannot be served with notice." Colo.Rev.Stat. § 12-37.5-103(2). The 48-hour period does not begin to run until actual delivery is accomplished. Colo.Rev.Stat. § 12-37.5-104(1)(a). In lieu of personal delivery, notice may be sent "postpaid certified mail, addressed to the parent at the usual place of abode of the parent, with return receipt requested and delivery restricted to the addressee." Delivery is then presumed to occur at 12:00 noon on the next day of regular mail delivery. Colo.Rev. Stat. § 12-37.5-104(1)(e)(i).
Any person performing or attempting to perform an abortion in willful violation of the Act commits a class one misdemeanor2 and is also liable for proximate damages. Colo.Rev.Stat. § 12-37.5-106(1). Anyone who encourages a pregnant minor to provide false information in order to induce a physician to perform an abortion commits a class five felony.3 Colo.Rev.Stat. § 12-37.5-106(3).
The Act provides two exceptions to the notice requirement:
1. The persons entitled to notice certify they have already been notified; or,
2. The minor declares she is victim of child abuse or neglect by the persons entitled to notice and the physician has reported in accordance with the Child Protection Act of 1987.4 Colo.Rev.Stat. § 12-37.5-105.
The Act also provides two affirmative defenses:
1. The physician reasonably relied upon representations by the minor as providing true information necessary to comply with the Act; or
2. The physician performed the abortion to prevent imminent death, and there was insufficient time to provide the required notice. Colo.Rev.Stat. § 12-37.5-106(2).
Finally, the Act contains a contingent judicial bypass effective in the event the Act is enjoined or restrained for lack of a judicial bypass. Colo.Rev.Stat. § 12-37.5-107(1). Under the bypass procedure, the minor may avoid parental notification if she petitions a judge to dispense with the notice requirements and the judge determines that such notice is not in her best interest or that the minor is sufficiently mature to make the abortion decision. The proceedings are to be conducted confidentially and decided without undue delay. Colo.Rev.Stat. § 12-37.5-107(2).
On December 22, 1998, the plaintiffs filed their complaint in state court, asserting six claims for relief:
1. The Act is facially unconstitutional under the United States Constitution because it lacks an exception to permit a physician to perform an abortion without notice or a waiting period to protect the health or life of the pregnant minor;
2. The Act fails to provide a judicial procedure to bypass the parental notification requirements in the case of mature, abused, or "best interest" children and thus violates the United States Constitution;
3. The contingent judicial bypass provided by the Act does not protect the federal constitutional rights of minors because it lacks adequate procedures to ensure confidentiality, expedition and appointment of counsel;
4. The Act violates the due process rights guaranteed by the Colorado Constitution;
5. The Act violates the Colorado Constitution's separation of legislative and judicial functions; and
6. The Act's definition of abortion unconstitutionally imposes a parental notification requirement on the use of contraceptives.
The plaintiffs seek declaratory relief that the Act violates both the federal and state constitutions and injunctive relief to prevent enforcement of the Act. The federal claims arise...
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...judicial bypass statute, Colo. Rev. Stat. Ann. § 12–37.5–107, declared unconstitutional in Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 107 F.Supp.2d 1271, 1285 (D. Colo. 2000), aff'd, 287 F.3d 910 (10th Cir. 2002) ); Nevada (parental notification and judicial bypass statute......
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