Womancare of Orlando, Inc. v. Agwunobi
| Decision Date | 18 July 2005 |
| Docket Number | No. 4:05CV222-WS.,4:05CV222-WS. |
| Parties | WOMANCARE OF ORLANDO, INC.; Womancare of Daytona, Inc.; Ralph L. Bundy, M.D.; Planned Parenthood of Southwest and Central Florida, Inc.; A Jacksonville Women's Health Center, Inc.; and Edward R. Watson, M.D., Plaintiffs, v. John O. AGWUNOBI, in his official capacity as Secretary of the Florida Department of Health, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
Richard Errol Johnson, Law Office of Richard E. Johnson, Tallahassee, FL, Galen L. Sherwin, Eve C. Gartner, New York, NY, Janet L. Crepps, Simpsonville, SC, for Plaintiffs.
Christopher M. Kise, Attorney General, Timothy M. Cerio, Office of General Counsel, Thomas D. Koch, George N. Meros, Jr., Gray Robinson PA, Tallahassee, FL, for Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
The plaintiffs in this case challenge, on its face, the Florida Legislature's recently-enacted Parental Notice of Abortion Act (the "Act"), signed into law on May 25, 2005, and codified at section 390.01114, Florida Statutes. The Act went into effect on June 30, 2005, upon the adoption of rules and forms by the Florida Supreme Court.
Before the court at this time is the plaintiffs' motion for temporary restraining order and/or for preliminary injunction. Doc. 2. The defendant, John O. Agwunobi, Secretary of the Florida Department of Health, has responded in opposition to the motion, as has the intervenor, Allan G. Bense, Speaker of the Florida House of Representatives. Does. 26 & 27. The court heard argument from counsel on July 7, 2005. Having determined that the Plaintiffs were not likely to succeed on the merits of their claims, the court denied their motion for preliminary injunction in open court. This order commemorates that in-court ruling.
In 1999, the Florida Legislature passed a parental notification of abortion act that was challenged in court under the privacy provisions of the Florida Constitution. In North Florida Women's Health and Counseling Services v. State, 866 So.2d 612 (Fla.2003), the Florida Supreme Court held that the 1999 act violated Florida's constitutional right to privacy.
In response to the Florida Supreme Court's decision in North Florida Women's Health and Counseling Services, the Florida Legislature proposed, and the voters ratified, a constitutional amendment authorizing the Florida Legislature, notwithstanding a minor's right to privacy under Florida law, to require notification to a parent or guardian before termination of a minor's pregnancy. Specifically, the amendment provides as follows:
The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor's right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor's pregnancy. The Legislature shall provide exception to such requirement for notification and shall create a process for judicial waiver of the notification.
The 2005 Florida Legislature responded to the Florida voters' mandate by enacting the Act that is being challenged in this case. In essence, the Act requires a physician to notify the parent or legal guardian of a minor at least 48 hours before performing an abortion on that minor. Fla. Stat. § 390.01114(3)(a). The physician must provide "actual notice"1 unless "actual notice is not possible after a reasonable effort has been made," in which case "constructive notice"2 must be given. Id. Notice is not required if: (1) "[i]n the physician's good-faith clinical judgment, a medical emergency exists and there is insufficient time for the attending physician to comply with the notification requirement;" (2) the parent or guardian waives notice in writing; (3) the minor is or has been married or has had the disability of nonage removed; (4) the minor has a minor dependent child; or (5) the minor has successfully petitioned a circuit court for a waiver of the notice requirement. § 390.0114(3)(b).
To obtain a judicial waiver of the notice requirement, a minor "may petition any circuit court in a judicial circuit within the jurisdiction of the District Court of Appeal in which she resides." § 390.01114(4)(a) (emphasis added). The Act does not define the term "resides;" nor does it expressly limit the availability of a judicial waiver to residents of the State of Florida.
The bypass provision gives the minor the right to court-appointed counsel, allows the minor to file her petition under a pseudonym or through the use of initials, and— because the petition is deemed granted if the circuit court fails to rule within 48 hours after the petition is filed—guarantees expeditious handling of the petition by the circuit court. § 390.01114(4)(a), (b).
The circuit court must dismiss the petition unless it finds, (1) by clear and convincing evidence, that the minor "is sufficiently mature to decide whether to terminate her pregnancy;" (2) by a preponderance of the evidence, that there "is evidence of child abuse or sexual abuse of the petitioner by one or both of her parents or her legal guardian;" or (3) by a preponderance of the evidence, that "the notification of a parent or guardian is not in the best interest of the petitioner." § 390.01114(4)(c), (d). "An expedited appeal shall be available, as the Supreme Court provides by rule, to any minor to whom the circuit court denies a waiver of notice." § 390.01114(4)(f). On June 30, 2005, the Florida Supreme Court adopted an amendment to Florida Rule of Appellate Procedure 9.110, which provides that a "district court of appeal shall render its decision on the appeal [of an order dismissing a petition for judicial waiver of parental notice of termination of pregnancy] as expeditiously as possible and no later than 10 days from the filing of the notice of appeal." Fla. R.App. P. 9.110(n).
Under the Act, if the court finds "evidence of child abuse or sexual abuse of the minor petitioner by any person, the court [must] report the evidence of child abuse or sexual abuse of the petitioner, as provided in s. 39.201." § 390.01114(4)(d). Section 39.201 provides that "[a]ny person .. . who knows, or has reasonable cause to suspect, that a child is abused ... by a parent, legal custodian, caregiver, or other person responsible for the child's welfare shall report such knowledge or suspicion to the [Department of Children and Families]."
Any violation of the Act by a physician "constitutes grounds for disciplinary action under s. 458.331 or s. 459.015." § 390.01114(3)(c). Such disciplinary action may lead to the revocation or suspension of the physician's license to practice and/or to the imposition of administrative fines of up to $10,000 for each violation. On its face, the Act does not contain any scienter or mens rea requirement for violations.
The plaintiffs ("Plaintiffs") are two physicians and four clinics that provide reproductive health care services in Florida, including abortions. They seek a preliminary injunction blocking enforcement of the Act on the grounds that the Act infringes upon the constitutional rights of both physicians who provide abortions and minors who seek abortions. For purposes of their motion for preliminary injunction, Plaintiffs contend that the Act: (1) violates the due process rights of physicians because the provision regarding disciplinary action lacks a scienter requirement; (2) is unconstitutionally vague in that it fails to define what constitutes a physician's "reasonable effort" to effect notice; (3) is unconstitutionally vague in that it fails to give physicians adequate guidance about when the medical emergency provision applies; (4) impermissibly burdens the right of minors to seek an abortion by failing, to contain any deadlines for resolution of appeals from a dismissal of a bypass petition; (5) violates minors' right to travel by failing to provide a venue for non-resident minors seeking abortions in Florida; and (6) impermissibly burdens the right of minors to confidentially and anonymously seek an abortion by requiring the court to report evidence of sexual abuse.
Although the Supreme Court has held that parents may not exercise "an absolute, and possibly arbitrary, veto" over a minor's decision to terminate a pregnancy, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 90-91, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), "it has never challenged a State's reasonable judgment that the decision should be made after notification to and consultation with a parent." Hodgson v. Minnesota, 497 U.S. 417, 445, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (op. of Stevens, J., joined by O'Connor, J.). Indeed, the Court has consistently recognized that a state "furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child." Danforth, 428 U.S. at 91, 96 S.Ct. 2831; see also H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) () (quoting Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)); Hodgson, 497 U.S. at 484, 110 S.Ct. 2926 () (Kennedy, J., concurring in the judgment in part and dissenting in part) (internal quotation and citation omitted). As observed by the Court in Bellotti v....
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...a conclusion that she may file a petition for judicial waiver in any circuit court in the state. In Woman-care of Orlando v. Agwunobi, 448 F.Supp.2d 1293 (N.D.Fla.2005), a facial challenge to the Act was filed. The federal district court accepted the argument of the Florida Department of He......