Reprod. Health Servs. v. Strange

• Decision Date: 30 June 2021
• Docket Number: No. 17-13561,17-13561
• Parties: REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff, June Ayers, RN, Plaintiffs - Appellees, v. Luther STRANGE, in his official capacity as Attorney General of the State of Alabama, Defendant, Daryl D. Bailey, in his official capacity as District Attorney of Montgomery County, Alabama, Steve T. Marshall, in his official capacity as Attorney General of the State of Alabama, Defendants - Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

3 F.4th 1240

REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff, June Ayers, RN, Plaintiffs - Appellees,

v.Luther STRANGE, in his official capacity as Attorney General of the State of Alabama, Defendant,Daryl D. Bailey, in his official capacity as District Attorney of Montgomery County, Alabama, Steve T. Marshall, in his official capacity as Attorney General of the State of Alabama, Defendants - Appellants.

No. 17-13561

United States Court of Appeals, Eleventh Circuit.

June 30, 2021

Andrew D. Beck, Jennifer Dalven, Renee Paradis, American Civil Liberties Union Foundation, New York, NY, Randall C. Marshall, Law Office of Randall C Marshall, Lolo, MT, for Plaintiffs-Appellees.

Brad A. Chynoweth, James W. Davis, Edmund Gerard LaCour, Jr, Kyle Adam Beckman, Alabama Attorney General's Office, Montgomery, AL, for Defendants-Appellants.

Before WILSON, JORDAN, and HIGGINBOTHAM,^* Circuit Judges.

PER CURIAM:

This appeal concerns a set of amendments to Alabama's Parental Consent Act, Ala. Code § 26-21-4, which regulates an unemancipated minor's ability to obtain an abortion. After the amendments were enacted in 2014, Reproductive Health Services (RHS), an abortion facility in Montgomery, Alabama, and June Ayers, its administrator and owner, challenged some of the Act's amended provisions in a suit against the Attorney General of Alabama and the District Attorney of Montgomery County.

The district court, ruling on cross-motions for judgment on the pleadings, held that some of the challenged provisions were unconstitutional, severed those provisions from the rest of the Act, and entered a declaratory judgment that rendered the severed provisions unenforceable.

The Attorney General and the District Attorney argue on appeal that RHS's claims are non-justiciable and that the provisions struck down by the district court are constitutional. With the benefit of oral argument, we affirm.¹

I. ALABAMA'S PARENTAL CONSENT ACT

Alabama's Parental Consent Act, Ala. Code § 26-21-1 et seq., requires a physician to obtain the written consent of one parent or guardian before performing an abortion on an unemancipated minor. See § 26-21-3(a). Alternatively—and as required by the Supreme Court, see, e.g. , Bellotti v. Baird (Bellotti II ), 443 U.S. 622, 647, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion)—a minor may seek a judicial order authorizing the procedure if she can establish that she is "mature and well-informed enough to make the abortion decision on her own," or that the abortion would be in her "best interest."² Ala. Code § 26-21-4(g). The burden is on the minor to prove that she meets one or both statutory criteria, and courts are instructed to consider the "totality of the evidence." § 26-21-4(h).

The 2014 amendments changed the process by which a minor may obtain a judicial order to bypass the parental-consent requirement, transforming it from a proceeding that was designed to be more of an avuncular visit in chambers with the judge than an open court, call-your-first-witness affair. The state legislature, in amending the Act, explained that Alabama's interest is "to not only ... protect the rights of the minor mother, but also to protect the state's public policy to protect unborn life." § 26-21-1(d).

The Act mandates that all proceedings "shall be confidential and anonymous," and requires that the minor "be identified by initials only" in all pleadings. § 26-21-4(o). But that assurance of confidentiality is undermined by another provision, § 26-21-4(c), which provides that the minor's identity may be disclosed not only to the court, to a guardian ad litem, or to court personnel, but also to the District Attorney, and to any other witness or person who has a need to know.

Another provision of the Act says "[n]otice by the court to the minor's parents, parent, or legal guardian shall not be required or permitted." § 26-21-4(a). But § 26-21-4(l ) instructs that if the minor's parents or guardian are "otherwise aware" of the bypass proceeding, they "shall be given notice of and be permitted to participate in the proceeding and be represented by counsel with all of the rights and obligations of any party to the proceeding."

When a minor files a judicial-bypass petition, the Act requires the court to "immediately notify the district attorney's office of the county in which the minor is a resident, or the county where the petition was filed." § 26-21-4(i). The District Attorney "shall participate as an advocate for the state to examine the [minor] and any witnesses, and to present evidence for the purpose of providing the court with a sufficient record upon which to make an informed decision and to do substantial justice." Id. The District Attorney may request the court for additional time "to obtain evidence, subpoena witnesses, or to obtain and present any evidence or information which will be necessary and appropriate for the court to make an informed decision." § 26-21-4(k). Such a delay shall not exceed one business day, "unless justice requires an extension thereof." Id. The District Attorney can file an appeal from the bypass court's decision. § 26-21-4(n).

The court, in its discretion, "may appoint" a guardian ad litem to represent "the interests of the unborn child" in the minor's judicial-bypass proceeding. § 26-21-4(j). Such a guardian "shall" have the same rights and obligations of participation in the proceeding as given to the District Attorney. Id.

The guardian ad litem for the fetus and the parents or guardians of the minor may cross-examine the minor and any other witnesses. § 26-21-4(i), (j), (l ). They are also allowed to subpoena witnesses to testify at the bypass hearing. § 26-21-4(f), (k). And they (along with anyone else involved in the proceeding) can request to extend the 48-hour period for a ruling on a bypass petition in order to obtain further testimony or evidence necessary for the court "to make an informed decision and to do substantial justice." § 26-21-4(e). "[A]ny such delay shall not be more than one business day ... unless justice requires an extension thereof." § 26-21-4(k). There appear to be no limits on what justice may "require[ ]" in terms of an extension.

A minor can appeal a court's decision denying her bypass petition. § 26-21-4(n). The District Attorney, the guardian ad litem for the fetus, and the minor's parents or guardians may also appeal a decision granting a minor's bypass petition. Id. The appeal must be perfected and the record prepared within five days from the filing of the notice of appeal. Id.

"Any person who intentionally performs or causes to be performed an abortion in violation of" the Act, or who "intentionally fails to conform to any requirement" of the Act, "shall be guilty of a Class A misdemeanor." § 26-21-6(a)(1). A conviction for a Class A misdemeanor is punishable by a term of imprisonment of up to one year and a fine of up to $6,000. §§ 13A-5-7(a)(1), 13A-5-12(a)(1). A violation may also "result in the suspension of the person's professional license for a period of at least one year," and failure to comply "provide[s] a basis for professional disciplinary action ... for the suspension or revocation of any license of physicians, psychologists, licensed social workers, licensed professional counselors, registered nurses, or other licensed or regulated persons." § 26-21-6(a)(2), (b).

II. THE PLAINTIFFS’ COMPLAINT AND THE DEFENDANTS’ ANSWER

RHS offers reproductive health services to women in Alabama and neighboring states. As the only licensed abortion facility in Montgomery, Alabama, it provides abortion services to adults and minors, including minors who judicially bypass the parental-consent requirement. Ayers, a registered nurse, has been the owner and administrator of RHS for the past 30 years.

The plaintiffs’ complaint contains several factual allegations and four legal claims.

A. THE PLAINTIFFS’ FACTUAL ALLEGATIONS

RHS and Ayers asserted that abortion is one of the safest medical procedures in the United States for both adult women and minors. The rate of complications from abortion is extremely low—less than 0.3% of abortion patients have complications requiring hospitalization, and minors have lower rates of complication than adult women. RHS's rate of complications is even lower. Still, the risks of an abortion increase as pregnancy progresses into the second trimester.

Most minors who seek an abortion inform at least one parent of that decision. The younger the minor, the more likely she will be to involve a parent in her decision to obtain an abortion. When a minor does not involve a parent in her decision to terminate her pregnancy, she generally has compelling reasons, including the fear of violence, being asked to leave home, being disowned, or being forced to carry an unwanted pregnancy to term.

For minors who seek a judicial bypass, confidentiality is essential—and any breach of confidentiality can cause harm, given the intensely private nature of the decision to terminate a pregnancy. When minors cannot be certain that the judicial-bypass system will guarantee their confidentiality, some will go to extreme lengths—including obtaining an illegal abortion or self-inducing an abortion—for fear of retribution if they were to end their pregnancy.

Going to court can be intimidating for minors in any setting, but that is particularly true for minors who seek judicial authorization for an abortion, which requires placing in the government's hands a decision that will change the course of one's life forever. These fears are heightened, RHS says, by the 2014 amendments—which allow adverse parties (including prosecutors) to participate and to cross-examine minors about their personal lives, their sexual experiences, and their decision to seek to terminate their pregnancy. Because any of the adverse parties can subpoena witnesses to testify, minors also will not know who else might appear and participate at a bypass proceeding. The people...