Planned Parenthood v. Heed

• Decision Date: 24 November 2004
• Docket Number: No. 04-1161.,04-1161.
• Citation: 390 F.3d 53
• Parties: PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, et al., Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D., Plaintiffs, Appellees, v. Peter HEED, Attorney General of the State of New Hampshire, in his Official Capacity, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

390 F.3d 53

PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, et al., Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D., Plaintiffs, Appellees, v. Peter HEED, Attorney General of the State of New Hampshire, in his Official Capacity, Defendant, Appellant.

No. 04-1161.

United States Court of Appeals, First Circuit.

Heard August 6, 2004.

Decided November 24, 2004.

Daniel J. Mullen, Associate Attorney General, with whom Suzanne M. Gorman, Senior Assistant Attorney General, and Andrew B. Livernois, Assistant Attorney General, were on brief, for appellant.

Teresa Stanton Collett, Professor of Law University of St. Thomas School of Law, Minneapolis, MN, was on brief, for amici curia New Hampshire Legislators in support of appellant.

Dara Klassel, with whom Martin P. Honigberg, Sulloway & Hollis, PLLC, Jennifer Dalven, Corinne Schiff, Lawrence A. Vogelman, and Shuchman, Krause & Vogelman, PLLC, were on brief, for appellees.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and SARIS,^* District Judge.

TORRUELLA, Circuit Judge.

Defendant-appellant Attorney General of the State of New Hampshire, Peter Heed, acting in his official capacity ("Attorney General"), appeals the district court's order declaring unconstitutional and enjoining the enforcement of the Parental Notification Prior to Abortion Act (the "Act"), 2003 N.H. Laws 173, codified at N.H.Rev.Stat. Ann. ("RSA") § 132:24-28 (2003).

I. Background

In June 2003, the New Hampshire legislature passed "AN ACT requiring parental notification before abortions may be performed on unemancipated minors," which states that:

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.¹ Paragraph II specifies that "written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent." RSA 132:25, II. Paragraph III allows for notification by certified mail with return receipt requested and with restricted delivery to the addressee. RSA 132:25, III.

The notice requirement is waived if

(a) The attending abortion provider 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 required notice; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

RSA 132:26, I.

If a minor does not want her parent or guardian notified, she may request a state judge, after a hearing, to "authorize an abortion provider to perform the abortion if said judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion," or if the judge determines that "the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests." RSA 132:26, II. In these proceedings, the pregnant minor may act on her own behalf or be appointed a guardian ad litem, and she must also be advised that she has a right to request court-appointed counsel. RSA 132:26, II(a). The 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 interest of the pregnant minor." RSA 132:26, II(b). Specifically, "[i]n no case shall the court fail to rule within 7 calendar days from the time the petition is filed." RSA 132:26, II(b). The judge must also "make in writing specific factual findings and legal conclusions," and order a record of the evidence to be maintained. RSA 132:26, II(b).

If the minor's petition is denied, an "expedited confidential appeal shall be available," and the appellate court must rule within seven calendar days of the docketing of the appeal. Access to the trial and appellate courts for the purposes of these petitions "shall be afforded such a pregnant minor 24 hours a day, 7 days a week." RSA 132:26, II(c).

Violation of the Act can result in criminal penalties and civil liability:

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. A person shall not be held liable under this section if the person establishes 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 information necessary to comply with this section are bona fide and true, or if the person has attempted by reasonable diligence to deliver notice, but has been unable to do so.

RSA 132:27. The Act was to take effect on December 31, 2003. 2003 N.H. Laws 173.

On November 17, 2003, plaintiffs-appellees Planned Parenthood of Northern New England, Concord Feminist Health Center of Portsmouth, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. ("plaintiffs") filed a complaint under 42 U.S.C. § 1983, seeking a declaratory judgment that the Act is unconstitutional and a preliminary injunction to prevent its enforcement once it became effective.² The district court merged the preliminary and permanent injunction proceedings and, on December 29, 2003, issued an order holding the Act unconstitutional and permanently enjoining its enforcement.

The district court found unconstitutional both (1) the lack of an explicit exception to protect the health of the pregnant minor, and (2) the narrowness of the Act's exception for abortions necessary to prevent the minor's death. Having found the Act fatally flawed in these respects, the district court declined to rule on the constitutionality of the Act's failure to provide specific protections for the confidentiality of a minor seeking a judicial waiver.

The Attorney General, acting in his official capacity, appeals.

II. Analysis

We review the district court's decision regarding the constitutionality of a statute de novo. United States v. Lewko, 269 F.3d 64, 67 (1st Cir.2001).

The Attorney General argues that in deciding whether the Act is facially invalid we should apply the "no set of circumstances" standard set forth in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).³ This standard requires plaintiffs challenging a state law as facially invalid to show that "no set of circumstances exists under which the Act would be valid." Id. at 745, 107 S.Ct. 2095. The Attorney General's argument rests on the premise that the Salerno standard is applicable to the Act despite the agreement of a plurality of Justices in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876-77, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), that a law which "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" places an unconstitutional "undue burden" on the exercise of her right to choose abortion. A majority of the Casey Court applied that standard to determine that an abortion regulation is facially invalid if "in a large fraction of cases in which [the regulation] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion," thus imposing an "undue burden." Id. at 895, 112 S.Ct. 2791 (per Justices O'Connor, Kennedy, and Souter, joined by Justices Stevens and Blackmun). The Court has since confirmed that "`a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability' is unconstitutional." Stenberg v. Carhart, 530 U.S. 914, 921, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (quoting Casey, 505 U.S. at 877, 112 S.Ct. 2791); see also id. at 945-46, 112 S.Ct. 2791 (declaring Nebraska ban on so-called "partial birth abortion" unconstitutional under undue burden standard).

Despite the Supreme Court's clear application of the undue burden standard in Casey and Stenberg, it has never explicitly addressed the standard's tension with Salerno. In the instant case, while recognizing that this court has yet to address the issue, the district court followed the majority of circuits that apply the Casey and Stenberg standard to legislation regulating abortion. The Attorney General notes that the Supreme Court applied the Salerno standard in the abortion context prior to Casey, see, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), and urges us to follow the Fifth Circuit's decision in Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992), that Casey does not displace Salerno's"no set of circumstances" test for facial challenges to abortion regulation. See also Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1102-03 (5th Cir.1997) (declining to reverse Barnes). The overwhelming majority of circuits to address this issue, however, have disagreed with the Fifth Circuit.⁴ See, e.g., Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 142-43 (3d Cir.2000) (holding undue burden standard, instead of Salerno standard, applies in abortion context after Casey); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025-26 (9th Cir.1999) (noting inconsistency between Casey and Salerno, and following "great weight of circuit authority holding that Casey has overruled Salerno in the context of facial challenges to abortion statutes"), amended on denial of reh'g, 193 F.3d 1042 (9th Cir.1999); Women's Med. Prof. Corp. v. Voinovich, 130 F.3d 187, 193-96 (6th Cir.1997) (holding that Casey effectively overruled Salerno), cert. denied, 523 U.S. 1036, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (observing that ...