Zbaraz v. Madigan
| Citation | 572 F.3d 370 |
| Decision Date | 14 July 2009 |
| Docket Number | No. 08-1620.,No. 08-1782.,08-1620.,08-1782. |
| Parties | David ZBARAZ, M.D., Allan G. Charles, M.D., and Marilynn C. Frederiksen, M.D., Plaintiffs-Appellees, v. Lisa MADIGAN, Attorney General of Illinois, and Anita Alvarez, State's Attorney of Cook County, Illinois, in their official capacities, Defendants-Appellants. David Zbaraz, M.D., Allan G. Charles, M.D., and Marilynn C. Frederiksen, M.D., Plaintiffs-Appellees, v. Lisa Madigan, Attorney General of Illinois, and Anita Alvarez, State's Attorney of Cook County, Illinois, in their official capacities, Defendants-Appellees. Appeal of Stewart Umholtz and Edward Deters, Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Lorie A. Chaiten, Attorney (argued), Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for Plaintiff-Appellee.
Thomas A. Ioppolo, Attorney, Michael A. Scodro, Attorney (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellant.
Peter Breen, Thomas L. Brejcha, Jr., Attorney, Chicago, IL, Patrick T. Gillen, Attorney (argued), Ann Arbor, MI, for Not Party-Appellant.
Patrick T. Driscoll, Jr., Attorney, Thomas A. Ioppolo, Attorney, Chicago, IL, for Defendant-Appellee.
Before CUDAHY, KANNE and TINDER, Circuit Judges.
There is no dispute that minors, like adult women, have a constitutional right to an abortion that may not be blocked by significant obstacles from the State. Nor is there any doubt that the State has an important interest in the welfare of its children that justifies regulation of the abortion of minors that would not be upheld if applied to adult women.
This case is merely the latest in a string of facial challenges to one such regulation, the Illinois Parental Notice of Abortion Act of 1995. Because we believe that this iteration of the notice statute, and the Illinois Supreme Court rule adopted to implement it, respect the Supreme Court's precedent regarding parental involvement laws, we uphold the Illinois notice act as constitutional on its face.
The question presented here is a narrow one: whether the Illinois Parental Notice of Abortion Act of 1995, 750 ILCS 70/1 et seq., is facially invalid because its judicial bypass provisions lack language authorizing a state court judge to issue an order allowing an immature minor to consent to an abortion without notifying her parents, where an abortion without notice would be in her best interests. This question requires unpacking. We start with the language of the statute.
The relevant sections of the notice act are set forth in full in the appendix. The act requires "the physician or his or her agent" to provide "at least 48 hours actual notice to an adult family member of the pregnant minor or incompetent person1 of his or her intention to perform the abortion," unless the physician or agent has received a certified written statement from a referring physician that such notice has been provided, or notice is not possible after reasonable effort, in which case forty-eight hours "constructive notice" (defined as "notice by certified mail to the last known address of the person entitled to notice") is sufficient. §§ 10, 15.
The act provides that parental notice shall be waived in a number of circumstances, § 20(1)-(5), including, as relevant here, if the minor participates in a judicial bypass procedure as outlined in § 25 of the act. A woman seeking a judicial bypass from notice "may petition any circuit court for a waiver of the notice requirement and may participate in proceedings on her own behalf." § 25(b). In addition, the bypass court is required to appoint a guardian ad litem for the minor, to advise her that she has a right to court-appointed counsel and to provide her with counsel upon her request. Id. Court proceedings under the act "shall be confidential and shall ensure the anonymity of the minor." § 25(c). The minor "shall have the right to file her petition using a pseudonym or using solely her initials." Id. The act further provides that judicial bypass proceedings shall be given precedence over other pending matters "to the extent necessary to ensure that the court reaches a decision promptly." Id. The court shall rule and shall issue written findings of fact and conclusions of law within forty-eight hours of the time the petition is filed, unless the minor requests additional time. Id. If the court fails to rule within the forty-eight-hour period, the petition shall be deemed to have been granted and the notice requirement shall be waived. Id.
The heart of the act's bypass procedure is § 25(d), which provides:
Notice shall be waived if the court finds by a preponderance of the evidence either:
(1) that the minor or incompetent person is sufficiently mature and well enough informed to decide intelligently whether to have an abortion, or
(2) that notification under Section 15 of this Act would not be in the best interests of the minor or incompetent person.
The judicial bypass court "shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence and the judge's findings and conclusions be maintained." § 25(e). The act requires that an expedited confidential appeal be available, as the Illinois Supreme Court provides by rule, to any minor to whom the circuit court has denied a waiver of notice. § 25(f). However, "[a]n order authorizing an abortion without notice shall not be subject to appeal." Id. Finally, the act "respectfully request[s]" the Illinois Supreme Court "to promulgate any rules and regulations necessary to ensure that proceedings under [the] Act [be] handled in an expeditious and confidential matter." § 25(g).
A physician who violates the notice act is to be referred to the Illinois State Medical Disciplinary Board, 225 ILCS 60/23(A)(4) which may recommend suspension or revocation of the physician's medical license, 225 ILCS 60/22(A)(40), or imposition of civil penalties of up to $5,000 per violation, 225 ILCS 60/22(C).
The plaintiffs filed this lawsuit in the district court in 1984, claiming that an earlier iteration of the notice act, the Parental Notice of Abortion Act of 1983, was constitutionally deficient on its face. The district court certified a plaintiff class of physicians and a defendant class of state's attorneys,2 but ultimately held that the 1983 act was unconstitutional because it failed to ensure a minor's anonymity or to provide for an expedited appeal. Zbaraz v. Hartigan, 584 F.Supp. 1452 (N.D.Ill. 1984). We affirmed and continued the injunction so that the Illinois Supreme Court could promulgate rules implementing the 1983 act's judicial bypass procedure in a way that would ensure expedited appeals and anonymity. Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir.1985). The Illinois Supreme Court later promulgated such a rule, but the district court held that it was insufficient and continued the permanent injunction. Zbaraz v. Hartigan, 776 F.Supp. 375 (N.D.Ill.1991). The Illinois General Assembly then repealed the 1983 act and replaced it with the 1995 act now before us.
On or about June 7, 1995, the plaintiffs amended their complaint to challenge the constitutionality of the 1995 act. The parties agreed to an injunction barring enforcement of the 1995 act until the Illinois Supreme Court promulgated new rules to implement the new act's judicial bypass. Then in February 1996, the district court entered a permanent injunction because the Illinois Supreme Court announced that it would not promulgate any such rules. The permanent injunction order expressly deferred the plaintiffs' constitutional challenges until such time as the Illinois Supreme Court promulgated rules.
Ten years later, in September 2006, the Illinois Supreme Court adopted Rule 303A, entitled "Expedited and Confidential Proceedings Under the Parental Notification of Abortion Act." Rule 303A purports to provide the necessary appeals procedures to implement the judicial bypass, as called for by § 25(g) of the notice act. The rule, set forth in its entirety in the appendix, reiterates that a judicial bypass court shall endeavor to rule at the close of any hearing, but must rule and issue written findings of fact and conclusions of law within forty-eight hours of the time that the petition is filed, weekends and holidays excluded, except at the minor's request for more time. The rule prescribes the content of a petition for appeal and supporting brief, and requires that they be filed within two days (weekends and holidays again excluded) of a circuit court decision denying relief, except that, again, the minor may request more time. After receiving the petition, brief and record on appeal, the appellate court has three work days to "issue a confidential written order." Rule 303A(g). The appellate court shall appoint counsel for the petitioner at her request, and all proceedings under the rule are to be confidential. Rule 303A(d), (f). The petitioner is to be identified in the petition and in any supporting brief only by her first name and last initial, or by initials only, or by pseudonym. All documents relating to the proceedings shall be sealed, and all notifications of court rulings under the rule may be informal and shall be confidential. Rule 303A(f).
In light of Rule 303A, the defendants filed a motion to dissolve the permanent injunction under Fed.R.Civ.P. 60(b)(5) and (6). The district court denied that motion, as well as a renewed motion, and continued the permanent injunction. The district court found that even with Rule 303A, the 1995 notice act was unconstitutional because it lacked language authorizing bypass courts to issue orders allowing immature minors to consent to abortions without parental notice where an abortion without notice would be in their best interests. The district court explained:
The 1995 Act authorizes the court to waive parental notification...
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