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Wynn v. Carey

decided: August 17, 1978.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 237 - Prentice H. Marshall, Judge.

Before Swygert, Circuit Judge, Moore, Senior Circuit Judge,*fn1 and Sprecher, Circuit Judge.

Author: Swygert

In this appeal we must determine whether the recently enacted Illinois Abortion Parental Consent Act is constitutional. The question pivots upon three separate important interests those of the pregnant minor, her parents, and the State which compete and at times directly conflict with each other. The statute is an attempt by the Illinois General Assembly to balance these competing interests. Our job is to determine whether the General Assembly was, within constitutional contours, successful in its endeavor.


On November 16, 1977 the Illinois General Assembly enacted the "Illinois Abortion Parental Consent Act of 1977." Public Act 80-1139, Ill.Rev.Stat. ch. 38, §§ 81-51 Et seq. This Act, set forth in full as the Appendix to this opinion, became effective on January 1, 1978.*fn2 Section 4 of the Act provides in part:

No abortion shall be performed in this State if the woman is under 18 years of age and has not married except:

(1) By a duly licensed, consenting physician in the exercise of his best clinical medical judgment;

(2) After the minor, 48 hours prior to submitting to the abortion, certifies in writing her consent to the abortion and that her consent is informed and freely given and is not the result of coercion; and

(3) After the consent of her parents is secured and certified in writing.

If such consent is refused or cannot be obtained, consent may be obtained by order of a judge of the circuit court upon a finding, after such hearing as the judge deems necessary, that the pregnant minor fully understands the consequences of an abortion to her and her unborn child. Such a hearing will not require the appointment of a guardian for the minor. Notice of such hearing shall be sent to the parents of the minor at their last known address by registered or certified mail. The procedure shall be handled expeditiously.

The Act thus requires that an unmarried minor must attempt to obtain consent of her parents before she can obtain an abortion.*fn3 If one or both of her parents refuse to consent, the statute allows a minor to petition the court to authorize her abortion. The petition must be granted if the court finds that the minor is capable of making an informed decision. The attempt to obtain parental consent is in all cases, however, a prerequisite to initiating the judicial proceeding. Minors who are married, divorced, or widowed are not covered by the Act. Furthermore, it does not apply to any abortion "which is necessary for the preservation of the life of the mother." Any person who performs an abortion in violation of the Act commits a misdemeanor.


This action for declaratory and injunctive relief was commenced in the district court on January 23, 1978. Asserting jurisdiction under 28 U.S.C. §§ 1331 and 1343(3) and seeking relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201 and 2202, plaintiffs claimed that the Parental Consent Act of 1977 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The plaintiffs and the classes they represent are as follows:

(1) Jane Doe and Sally Roe, two unmarried minors under the age of eighteen, pregnant at the time of the filing of the suit, and residents of the State of Illinois. Each alleged that she wished to terminate her pregnancy without obtaining either parental consent or a judicial order. Plaintiffs were certified by the district court as representative of a class of "all unmarried minor females desiring pregnancy terminations within the State of Illinois."

(2) Ralph M. Wynn, M.D., Allan G. Charles, M.D., Jerzy Jozef Biezenski, M.D., and Marvin Rosner, M.D., four physicians licensed to practice in Illinois. Each is engaged in the practice of obstetrics and gynecology, and each performs pregnancy terminations as part of his medical practice. Plaintiff-physicians were certified as representative of a class of "all duly licensed physicians and surgeons presently performing or desiring to perform pregnancy terminations on minor patients in the State of Illinois and on behalf of minor patients desiring pregnancy terminations within the State of Illinois."

The defendants and the classes they represent are as follows:

(1) William J. Scott, Attorney General of the State of Illinois.

(2) Bernard Carey, State's Attorney of Cook County, who is responsible for enforcing the Act in Cook County, Illinois. Carey, sued in his official capacity, was certified as a representative of all State's Attorneys of the various counties in Illinois.

(3) Paul Q. Peterson, M.D., Director of the Department of Health in the State of Illinois, who is charged under the Act with the responsibility of prescribing parental and judicial consent forms to be maintained by physicians on pregnancy terminations of unmarried minor women.

After the complaint was filed Eugene F. Diamond, M.D., a physician licensed to practice in Illinois and engaged in the practice of pediatrics, sought to intervene as a party-defendant. The district court permitted Dr. Diamond to intervene and represent his own interest as a parent of a minor of child-bearing age.

After hearing arguments on plaintiffs' motion for a temporary restraining order, the district court on February 2, 1978 temporarily restrained the enforcement of the parental and judicial consent provisions (section 4(3)) of the Act. Thereafter the State's Attorney moved to dismiss the case and plaintiffs moved for entry of a preliminary injunction. On February 23, 1978 the district court denied the motion to dismiss and preliminarily enjoined the state defendants from enforcing the parental and judicial consent provisions contained in section 4 of the Act. 448 F. Supp. 997 (N.D.Ill.1978).

In the memorandum decision accompanying its order, the district court rejected the State's Attorney's contention that plaintiffs lacked standing to bring this action. The court further denied his motion to dismiss on the grounds of abstention under Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), concluding that the importance and urgency of the rights claimed by the plaintiff class of minor women could not wait for piecemeal adjudication in the state courts interpreting the various sections of the Act. 448 F. Supp. at 1001-04.

Reaching the merits the district court concluded that section 4(1), requiring a physician to exercise "his best clinical medical judgment," was valid under Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), and that section 4(2), requiring a forty-eight hour waiting period and written consent by the minor, was not unreasonably burdensome.*fn4 The court did, however, hold that plaintiffs were entitled to a preliminary injunction with respect to the parental and judicial consent provisions contained in section 4(3). In summarizing its position, the court stated:

(T)he 1977 Act does not provide a judicial remedy, in lieu of parental consent, which meets the Bellotti (V. Baird, 428 U.S. 132, 96 S. Ct. 2857, 49 L. Ed. 2d 844 (1976)) standards. The remedy is unduly burdensome. It is totally silent on procedures essential to its effective utilization. It makes parental consultation mandatory in all cases. The elements of the judicial inquiry are not limited to those which are constitutionally permissible. It is, in my judgment, void on its face.

448 F. Supp. at 1006.

Both the State's Attorney and the intervenor-defendant appealed from that part of the judgment holding section 4(3) unconstitutional and enjoining enforcement thereof.*fn5 Plaintiffs have not challenged the district court's upholding of the other sections of the Act.


At the outset, the State's Attorney contends that the district court should have abstained. The doctrine of abstention is "an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it." Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976). The doctrine cannot be invoked "to dismiss a suit merely because a State court could entertain it," Alabama Service Commission v. Southern Railway Co., 341 U.S. 341, 361, 71 S. Ct. 762, 774, 95 L. Ed. 1002 (1951) (Frankfurter, J., concurring), nor does the "opportunity to avoid decision of a constitutional question . . . alone justify abstention by a federal court." Colorado River, supra, 424 U.S. at 815 n.21, 96 S. Ct. at 1245. "Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S. Ct. 1060, 1063, 3 L. Ed. 2d 1163 (1959). The State's Attorney asserts that two of the recognized types of abstention apply here: the Pullman -type and the Burford -type. For the reasons noted below, we hold that this case falls into neither type.

A. Pullman -type abstention is appropriate "where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.' " Bellotti v. Baird, 428 U.S. 132, 147, 96 S. Ct. 2857, 2866, 49 L. Ed. 2d 844 (1976). See also Zbaraz v. Quern, 572 F.2d 582, 584 (7th Cir. 1978) (Per curiam ). The doctrine was designed to avoid unnecessary federal constitutional challenges to state laws, thereby avoiding needless friction between the state and federal governments. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941); Zbaraz v. Quern, supra. Our first task is to determine whether the statute under ...

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