Reprod. Health Servs. v. Marshall

• Citation: 268 F.Supp.3d 1261
• Decision Date: 28 July 2017
• Docket Number: CASE NO. 2:14–cv–1014–SRW
• Parties: REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff, et al., Plaintiffs, v. Steven T. MARSHALL, in his official capacity as Attorney General of the State of Alabama, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

268 F.Supp.3d 1261

REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff, et al., Plaintiffs,

v.Steven T. MARSHALL, in his official capacity as Attorney General of the State of Alabama, et al., Defendants.

CASE NO. 2:14–cv–1014–SRW

United States District Court, M.D. Alabama, Northern Division.

Signed July 28, 2017

Andrew David Beck, Jennifer Dalven, pro hac vice, American Civil Liberties Union, New York, NY, Randall C Marshall, ACLU of Alabama Foundation, Inc., Montgomery, AL, for Plaintiffs.

Kyle A. Beckman, William G. Parker, Jr., Mary Mangan, Office of the Alabama Attorney General, Montgomery, AL, for Defendants.

MEMORANDUM OPINION, DECLARATORY JUDGMENT, AND ORDER ¹

Susan Russ Walker, United States Magistrate Judge

This matter is before the court on the parties' cross motions for judgment on the pleadings.

I. Introduction

On September 2, 2016, the court determined that a justiciable controversy exists in this case with respect to plaintiffs' challenges to the State of Alabama's parental consent and judicial bypass statutes ("the Act"), which were substantially amended in 2014. See Reproductive Health Services v. Strange , 204 F.Supp.3d 1300 (M.D. Ala. 2016) (‘‘ RHS I ");² see also Ala. Code §§ 26–21–1, et seq. ; H.B. 494, 2014 Leg. Sess. (Ala. 2014) (enacted; effective July 1, 2014); Ala. Code § 26–21–4 (judicial bypass provision). The court subsequently held a status conference, during which the parties agreed that the plaintiffs' claims and defendants' defenses are exclusively matters of law to be decided without the need for an evidentiary record. See, e.g., Planned Parenthood Ass'n of Kansas City v. Ashcroft , 462 U.S. 476, 491, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (the Bellotti II analysis is "one purely of statutory construction."). Following the status conference, the court set a deadline for the parties to file any motions for judgment on the pleadings, and plaintiffs and defendants respectively filed such motions pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 60, 63).

The parties all argue that a declaratory judgment is due to be entered as to all of plaintiffs' claims. Specifically, the plaintiffs and defendants each seek a declaratory judgment as to the constitutionality of the following provisions of the Act in light of the Supreme Court's plurality opinion in Bellotti v. Baird , 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (" Bellotti II ") and its progeny: Alabama Code §§ 26–21–4(a), (c), (f), (e), (i), (j), (k), (l) and (n).³ (Doc. 1; Count I). Moreover, all parties request a declaratory judgment regarding plaintiffs' claim that the Act violates a minor petitioner's "right to liberty and privacy as guaranteed by the due process clause of the Fourteenth Amendment ... by permitting" disclosure of "deeply sensitive, private information about the minor to others, including to any potential witnesses." (Doc. 1 at 13; Count II) ("informational privacy claim"). In addition, the plaintiffs claim that certain provisions of the Act violate out-of-state minors' rights to travel and to equal protection under the law, but all parties are in agreement regarding the correct interpretation of the challenged provisions. (Doc. 1; Counts III, IV). Plaintiffs also move for preliminary injunctive relief and a permanent injunction prohibiting enforcement of the challenged provisions of the Act. (Doc. 1, 2). These motions and issues have been fully briefed and are ripe for decision.

Under Bellotti II , plaintiffs claim that the State of Alabama has created an unconstitutional judicial bypass option for minors who seek an abortion without the consent of a parent or legal guardian. Specifically, the plaintiffs contend that the addition of a district attorney ("DA"), a guardian ad litem on behalf of the fetus ("GAL"), and—under some circumstances—the minor petitioner's parent, parents or legal guardian as parties to the bypass proceeding causes that proceeding no longer to afford the minor the constitutionally guaranteed option of an anonymous and expeditious bypass. Also, plaintiffs argue that certain provisions of the Act allowing subpoenas to issue for the presence of witnesses violate a minor petitioner's right to anonymity, and that the Act permits discretionary delays in the resolution of the petition such that the bypass process lacks the requisite expedition to satisfy the Supreme Court's mandates in Bellotti II. In addition, the plaintiffs maintain that the Act "unconstitutionally transforms the bypass from an ex parte hearing into an adversarial" proceeding. (Doc. 61 at 11). For their part, defendants zealously defend the constitutionality of the Act.

The court finds that neither plaintiffs nor defendants are precisely correct in their interpretations of the Act; however, based upon nearly four decades of binding Supreme Court precedent, certain provisions of the Act undoubtedly fail on a facial challenge to their constitutionality. See n. 3, supra. As explained more fully below, the offending portions of the Act are severable, and a declaration of their unconstitutionality will still leave Alabama with a constitutional bypass option, something that the Alabama Legislature clearly intended to achieve when it amended the Act in 2014. See Ala. Code §§ 26–21–1, 26–21–4.

Defendants, however, are entitled to judgment as a matter of law as to plaintiffs' informational privacy claim. Plaintiffs' claims regarding the rights of out-of-state minors no longer present an actual controversy for this court to decide.

II. Standard of review—motion for judgment on the pleadings

The Federal Rules of Civil Procedure provide that, "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A judgment on the pleadings is limited to consideration of "the substance of the pleadings and any judicially noticed facts." Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n , 137 F.3d 1293, 1295 (11th Cir. 1998).

In evaluating a motion for judgment on the pleadings, the court must review the factual allegations in the light most favorable to the nonmoving party.⁴ Cannon v. City of W. Palm Beach , 250 F.3d 1299, 1301 (11th Cir. 2001). However, the court need not credit a nonmoving party's legal contentions. See Green Leaf Nursery v. E.I. DuPont De Nemours and Co. , 341 F.3d 1292, 1304 n.12 (11th Cir. 2003) (citing Honduras Aircraft Registry, Ltd. v. Government of Honduras , 129 F.3d 543, 545 (11th Cir. 1997) ).

A judgment on the pleadings pursuant to Rule 12(c) is appropriate when "no issues of material fact exist, and the movant is entitled to judgment as a matter of law[,]" Ortega v. Christian , 85 F.3d 1521, 1524 (11th Cir. 1996), or when "the complaint lacks sufficient factual matter to state a facially plausible claim for relief that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct." Jiles v. United Parcel Serv., Inc. , 413 Fed.Appx. 173, 174 (11th Cir. 2011) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

III. Discussion

A. Alabama's parental consent and judicial bypass laws

Alabama law mandates that "no physician shall perform an abortion upon an unemancipated minor unless the physician or his or her agents first obtain the written consent of either parent or the legal guardian of the minor." Ala. Code § 26–21–3(a). There are limited exceptions to the parental consent requirement, one of which is the judicial bypass exception. See id. ; Ala. Code § 26–21–4. As a matter of law, states that have parental consent statutes must also enact a law that allows a minor to obtain a court order to bypass her parent's or guardian's consent. See Bellotti II , 443 U.S. at 649, 99 S.Ct. 3035. In RHS I , the court summarized the pertinent provisions of Alabama's judicial bypass law as follows.

Prior to the 2014 amendments, Alabama's judicial bypass statute allowed for an ex parte hearing which included as participants, in almost all instances, only the judge, the minor applicant, and her attorney. The new Act substantially alters the former bypass scheme; it is allegedly unique among all other states' judicial bypass laws. (Doc. 3 at 8).

Under Alabama's former judicial bypass law, which was enacted in 1987 and remained substantively unchanged for 27 years, the only necessary party to the bypass proceedings identified by statute was the minor petitioner. See Ala. Code 26–21–4 (2013). At his or her discretion, the presiding judge also could use a provision of the Alabama Rules of Civil procedure to appoint a guardian ad litem ("GAL") to represent the interests of the "infant unborn," but the judicial bypass law did not independently permit the appointment of a GAL or vest that person with the same rights as a party to the bypass proceedings. See Ala. R. Civ. P. 17(c) ; cf. Ala. Code § 26–21–4 (2013), Ala. Code § 26–21–4. A minor petitioner was entitled to a decision from the reviewing court within 72 hours after filing her petition, excluding Saturdays, Sundays and legal holidays, unless the petitioner requested an extension of time and the court permitted the delay. See Ala. Code § 26–21–4(e) (2013). The minor was the only person with standing to appeal the decision of the reviewing judge. Ala. Code § 26–21–4(h) (2013). "If notice of appeal [were] given, the record of appeal [was to] be completed and the appeal [was to be] perfected within five days from the filing of the notice of appeal." Id.

The 2014 Act expands the number of potential parties to a judicial bypass proceeding, and makes the inclusion of some of those parties mandatory. See Ala. Code § 26–21–4. Those additional parties are either required or permitted to "examine" the petitioner and to represent interests in addition to those of the petitioner, including the interests of the State of Alabama, the unborn child, and the minor's parent(s) or

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