Wicklund v. Salvagni
| Decision Date | 16 August 1996 |
| Docket Number | No. 95-36028,95-36028 |
| Citation | 93 F.3d 567 |
| Parties | 96 Cal. Daily Op. Serv. 6122, 96 Daily Journal D.A.R. 10,021 Susan WICKLUND, M.D.; James H. Armstrong, M.D.; Lindsay Richards, M.D., Susan Cahill, P.A.; Douglas Webber, M.D.; Beth E. Thompson, M.D.; Mary Stranahan, D.O.; and Mark Miles, M.D., on behalf of themselves and their patients throughout Montana, and surrounding states and Canada, Plaintiffs-Appellees, v. Michael SALVAGNI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Clay R. Smith, Assistant Attorney General, Helena, Montana, for defendant-appellant.
Simon Heller, Center for Reproductive Law and Policy, New York City, for plaintiff-appellee.
Appeal from the United States District Court for the District of Montana, James F. Battin, District Judge, Presiding. D.C. No. CV-93-00092-JFB.
Before: REAVLEY, * REINHARDT, WIGGINS, Circuit Judges.
The issue in this case is whether a Montana statute that requires that minors notify a parent before obtaining an abortion is constitutional. The statute provides for a form of "judicial bypass" of its parental notification provision for certain minors. Plaintiffs filed an action in district court contending that the notification statute was unconstitutional because the bypass was inadequate. The district court found the statute unconstitutional. On appeal the parties explore a number of difficult issues. We do not reach them because we conclude that we are bound by our earlier decision in Glick v. McKay, 937 F.2d 434 (9th Cir.1991), and therefore affirm.
In November 1993, six physicians, a physician assistant, and an organization providing abortion services brought suit on behalf of Dr. Susan Wicklund as well as minors of Montana and neighboring states challenging Montana's Abortion Control Act, Mont.Code Ann. § 50-20-107(1)(b) (1993). The Act required minors to notify their parents before obtaining an abortion. It did not provide for a judicial or alternate bypass procedure through which a qualified minor could avoid giving notice in appropriate circumstances. In December 1993, the District Court issued an order permanently enjoining the enforcement of Mont.Code Ann. § 50-20-107(1)(b) based on a stipulation by the defendant that the provision was unconstitutional.
In direct response to that court order, the Montana Legislature repealed § 50-20-107 and passed a new parental notification law entitled the Parental Notice of Abortion Act (the Act). Mont.Code Ann. § 50-20-201 et seq (1995). That Act, which is now before us, prohibits a physician from performing an abortion upon a minor or an incompetent person unless that physician or a referring physician has given 48 hours actual notice to one parent or a legal guardian of the patient concerning the intent to perform the abortion. Mont.Code Ann. § 50-20-204. Notice need not be given under certain circumstances, including when it is waived judicially under Mont.Code Ann. § 50-20-208. Section 50-20-212's bypass provision states:
Procedures for judicial waiver of notice
(2) (a) The minor or incompetent person may petition the youth court for a waiver of the notice requirement and may participate in the proceedings on the person's own behalf.
(4) If the court finds by clear and convincing evidence that the petitioner is sufficiently mature to decide whether to have an abortion, the court shall issue an order authorizing the minor to consent to the performance or inducement of an abortion without the notification of a parent or guardian.
(5) The court shall issue an order authorizing the petitioner to consent to an abortion without notification of a parent or guardian if the court finds by clear and convincing evidence, that:
(b) the notification of a parent or guardian is not in the best interests of the petitioner.
Plaintiffs filed a motion for leave to file a supplemental complaint to challenge the constitutionality of the act, which the district court granted. The parties filed cross-motions for summary judgment, and the district court granted plaintiffs'. The district court determined that a minor who seeks to bypass parental notification and shows that an abortion is in her best interests must be able to obtain an abortion without notifying a parent of guardian. The County Attorney appeals.
Over the last 15 years, the Supreme Court has examined the circumstances under which states may require parental consent before allowing a minor to procure an abortion. E.g., City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ); Planned Parenthood Association of Kansas v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). Where a minor is insufficiently mature or emancipated to make the abortion decision for herself, the state may require such consent. Bellotti, 443 U.S. at 640, 99 S.Ct. at 3046-47 (plurality opinion). However, if the state does so, the statute must also include a means by which "qualified" minors may circumvent the requirement. Id. at 643, 99 S.Ct. at 3048; see also Akron I, 462 U.S. at 439-40, 103 S.Ct. at 2497-98. That typically comes in the form of a "judicial bypass." A judicial bypass is designed to allow the minor the opportunity to persuade the court to allow her to have an abortion without having to notify a parent and obtain parental consent. Under Bellotti, a minor is entitled to avoid having to a bypass if she can show either:
(1) that she is mature enough and well informed enough to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.
Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048 (plurality opinion); see also Akron II, 497 U.S. at 511-13, 110 S.Ct. at 2979-80 (citing Bellotti ). In addition, "[t]he proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained." Bellotti, 443 U.S. at 644, 99 S.Ct. at 3048.
The Supreme Court has left open the question of whether or not a judicial bypass to a parental notification provision (such as the one at issue here) is constitutionally required. The Court considered the constitutionality of a notification provision in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II), but avoided deciding whether a bypass was required. In Akron II, the Court first considered whether the notice bypass of the Ohio statute met the test for a consent-bypass set forth in Bellotti:
In analyzing this aspect of the dispute, we note that, although our cases have required bypass procedures for parental consent statutes, we have not decided whether parental notice statutes must contain such procedures. We leave the question open, because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures, H.B. 319's bypass procedure meets the requirements identified for parental consent statutes in [Planned Parenthood of Central Missouri v.] Danforth [428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)], Bellotti, Ashcroft, and Akron. [I]t is a corollary to the greater inclusiveness of consent statutes that a bypass procedure that will suffice for a consent statute will suffice also for a notice statute.
Akron II, 497 U.S. at 510-11, 110 S.Ct. at 2978-79. Because the Court concluded that the notice-bypass provision satisfied the Bellotti standard, it did not reach the question whether a notice-bypass is constitutionally required, and if so, what form it must take. 1
Appellees contend that the Montana statute is unconstitutional because it does not provide for a bypass as a matter of right to those minors who can show that an abortion is in their best interests. Justice Powell's opinion in Bellotti, 443 U.S. at 643, 99 S.Ct. at 3048, and subsequent cases make clear that where a minor can show that (1) she is sufficiently mature to make her own decision whether to have an abortion or (2) an abortion is in her best interests, state law must allow her to obtain that abortion without obtaining parental consent. Akron II, 497 U.S. at 510-11, 110 S.Ct. at 2978-79. Apparently in obedience to that dictate, the Montana statute allows mature minors to avoid parental notification. However, unlike in states with consent statutes, minors in Montana who can show that an abortion is in their best interests may nevertheless be compelled to comply with the parental notification requirement.
Appellees argue that if a minor is willing to go to court, undergo the emotional strain and practical difficulties of the judicial bypass procedure, and establish that it is in her best interests to have an abortion, her actions demonstrate that she is so afraid or unwilling to inform her parents that forcing her to do so would constitute an undue burden on her right to have an abortion. Appellees contend, therefore, that a minor who is unalterably opposed to letting her parents know of her condition, and her plans for an abortion, should be able to obtain a waiver of the parental notification requirement simply by showing that having an abortion is in her best interests. They argue that whatever the judge may think objectively of the wisdom of a minor's notifying her parents, the question is a highly subjective one, and if, in the end, the young woman is sufficiently distressed by the prospect of a hostile or abusive parental reaction that she is unwilling to notify them, then the notification requirement will necessarily constitute an undue burden. In short, the argument goes,...
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