Reprod. Health Servs. v. Strange

• Decision Date: 02 September 2016
• Docket Number: CASE NO. 2:14-cv-1014-SRW
• Citation: 204 F.Supp.3d 1300
• Parties: REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff, et al., Plaintiffs, v. Luther STRANGE, in his official capacity as Attorney General of the State of Alabama, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

204 F.Supp.3d 1300

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

v.Luther STRANGE, 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 September 2, 2016

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

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

MEMORANDUM OPINION AND ORDER

Susan Russ Walker, Chief United States Magistrate Judge

I. Introduction

Since 1973, the United States Supreme Court has consistently held that "[a] woman's decision to conceive or to bear a child is a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution." Hodgson v. Minnesota , 497 U.S. 417, 434, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (citations omitted); see also Roe v. Wade , 410 U.S. 113, 152–66, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (a pregnant woman has a constitutional right, under the Due Process Clause of the Fourteenth Amendment, to choose to terminate her pregnancy before viability.). That clause, as interpreted by the Court, protects a woman's right to make such decisions independently and privately, free of unwarranted government intrusion. Hodgson , 497 U.S. at 434, 110 S.Ct. 2926 (citations omitted).

Nearly forty years ago, the Supreme Court extended this liberty interest to minors in Bellotti v. Baird , 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ), and Planned Parenthood of Central Mo. v. Danforth , 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). The Court determined that " 'the potentially severe detriment facing a pregnant woman ... is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. In addition, the fact of having a child brings with it adult legal responsibility, for parenthood, like attainment of the age of majority, is one of the traditional criteria for the termination of the legal disabilities of minority. In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.' " Hodgson , 497 U.S. at 434, 110 S.Ct. 2926 (citations omitted).

A. Parental consent and judicial bypass

For minors, however, this liberty interest has significant limits. " '[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor's right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.' " Hodgson , 497 U.S. at 458, 110 S.Ct. 2926 (O'Connor, J., concurring) (quoting Bellotti II , 443 U.S. 640–41, 99 S.Ct. 3035 ). Thus, states are permitted to pass laws that require a minor to have the consent of her parent or legal guardian prior to having an abortion.

However, a state's requirement of parental consent cannot be absolute. To safeguard the best interests and constitutional rights of a minor who decides to terminate her pregnancy, the Court has held that, if a state elects to enact a parental consent statute, it is constitutionally obligated also to enact a judicial bypass law that affords a pregnant minor the opportunity to obtain a court's permission to have an abortion without her parent's or legal guardian's consent. See Bellotti II , supra . The State of Alabama has enacted such laws; the constitutionality of certain recent amendments to Alabama's parental consent and judicial bypass statutes ("the Act") is the subject of this litigation. See 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).

B. The 2014 amendments

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 legal guardian. See id. For example, when a minor files a judicial bypass petition, the court now must immediately notify the district attorney ("DA") of the county in which the petition is filed or in which the petitioner resides, and the DA is then automatically joined as a necessary party to the bypass proceedings. Ala. Code § 26-21-4(i). The 2014 Act also allows the minor's parent(s) or legal guardian to be joined as parties if those individuals learn of the existence of the proceedings. Ala. Code § 26-21-4(l). The new law contains a statutory provision independent of Alabama Rule of Civil Procedure 17(c) which allows the reviewing court to appoint a GAL to represent "the interests of the unborn child[.]" Ala. Code § 26-21-4(j). The powers of the GAL are expansive, and that person also is joined as a party once appointed by the court. Id.

In addition, the 2014 Act codifies the rights and obligations of the DA, GAL, and the parent(s) or legal guardian in their capacities as parties. The DA and the GAL are statutorily mandated to "participate as [advocates] for the state to examine the petitioner and any witnesses[.]" Ala. Code § 26-21-4(i), (j). Alabama's interests, as explained by the Act, include "protecting minors from their own immaturity" and "protect[ing] the state's public policy to protect unborn life[.]" Ala. Code § 26-21-1(d). The minor's parents, once joined as parties, have the same rights as the DA, GAL, and the minor petitioner. See Ala. Code § 26-21-4(l). All parties may be represented by an attorney, appeal the hearing judge's decision, request extensions of time, and have access to subpoena powers to compel witnesses to testify.

Moreover, the 2014 Act replaces the requirement in the former law that the hearing judge must issue a decision within 72 hours and the appeal must be "perfected" within five days. Ala. Code § 26-21-4(h) (2013). The law permits discretionary delays by the reviewing judge, either sua sponte or upon request by any party, "subject to the time constraints of the petitioner related to her medical condition." Ala. Code § 26-21-4(k).

C. Parties

Plaintiff Reproductive Health Services ("RHS") is a licensed abortion facility in Montgomery, Alabama. Plaintiff June Ayers, a registered nurse, is its owner and administrator. The defendants are Luther Strange, in his official capacity as Attorney General of the State of Alabama, and Daryl D. Bailey, in his official capacity as the District Attorney for Montgomery County, Alabama (hereafter, "the DA"). (Doc. 1, ¶¶ 8-11).

D. Motion to dismiss

This action is presently before the court on defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 30). Defendants contend that this court lacks subject matter jurisdiction to entertain plaintiffs' claims or, alternatively, that the court should abstain from exercising its jurisdiction. Defendants also maintain that plaintiff's allegations fail to state a claim for relief. (Docs. 30, 31). Upon consideration of the motion to dismiss, the court concludes that it is due to be denied for the reasons set forth below.

II. Standards of review

A. Rule 12(b)(1)

Another judge of this court recently summarized the appropriate standard of review for a motion brought under Rule 12(b)(1). See McCoy v. Mallinckrodt Pharm., Inc. , No. 2:15CV00723–MHT–PWG, 2016 WL 1544732, at *2 (M.D.Ala. Mar. 23, 2016), report and recommendation adopted , No. 2:15CV723–MHT, 2016 WL 1465967 (M.D.Ala. Apr. 14, 2016) (quoting Greenwell v. University of Alabama Bd. of Trustees , 2012 WL 3637768, at *5 (N.D.Ala.2012) ). The court explained:

Challenges to subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules

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