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ZBARAZ v. HARTIGAN

May 4, 1984

DAVID ZBARAZ, M.D., AND ALLAN G. CHARLES, M.D., INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NEIL HARTIGAN, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF ILLINOIS; AND RICHARD M. DALEY, IN HIS OFFICIAL CAPACITY AS STATE'S ATTORNEY FOR COOK COUNTY, ILLINOIS; THEIR AGENTS AND SUCCESSORS; AND ALL OTHERS SIMILARLY SITUATED, DEFENDANTS.



The opinion of the court was delivered by: Will, District Judge.

  MEMORANDUM OPINION

On November 2, 1983, the Illinois General Assembly passed, over the veto of Governor Thompson, the Parental Notice Abortion Act, P.A. 83-890 (Senate Bill or "SB 521") which plaintiffs here challenge as unconstitutional on a number of grounds. SB 521 regulates the performance of abortions on unemancipated minors and incompetents. Section 8 of the Act provides that anyone who "intentionally, knowingly, or recklessly fails to conform" to any of the Act's requirements is guilty of a Class A misdemeanor.

Shortly before the Act was to take effect on January 31, 1984, plaintiffs filed a class action suit requesting a preliminary injunction or, alternatively, a temporary restraining order. On January 30, 1984, the parties agreed to extend a temporary restraining order, entered January 26, 1984, pending resolution of the issues presented in this case. On February 17, 1984, we certified a plaintiff class consisting of Drs. Allen G. Charles and David Zbaraz, as representatives of all duly licensed physicians presently performing or desiring to perform pregnancy terminations for unemancipated minors and disabled persons in the State of Illinois, on their own behalves, and on behalf of certain of their patients desiring abortions.*fn1 The defendant class consists of Richard M. Daley, in his official capacity as State's Attorney for Cook County, Illinois, and as representative of all the State's Attorneys of all of the counties of Illinois.*fn2

Before us are the parties' simultaneous cross-motions for summary judgment. After a careful consideration of SB 521 in the light of recent Supreme Court decisions, as well as those of the Seventh Circuit, we find, as did Governor Thompson, that SB 521 is constitutionally defective. Therefore, plaintiffs' motion for summary judgment is granted and we will permanently enjoin defendants from enforcing its provisions.

I. Parental Notice Abortion Act of 1983*fn3

Section 2 of the Act delineates the legislative intent in enacting the parental notice provisions — to further the compelling state interests of "1) protecting minors against their own immaturity, 2) fostering the family structure and preserving it as a viable social unit, and 3) protecting the rights of parents to rear children who are members of their households." The legislature found as fact

  that 1) immature minors often lack the ability to
  make fully informed choices that take account of both
  immediate and long-range consequences, 2) the
  medical, emotional and psychological consequences of
  abortion are serious and can be lasting, particularly
  when the patient is immature, 3) the capacity to
  become pregnant and the capacity for mature judgment
  concerning the wisdom of an abortion are not
  necessarily related, 4) parents ordinarily possess
  information essential to a physician's exercise of
  his best medical judgment concerning the child, and
  5) parents who are aware that their minor daughter
  has had an abortion may better ensure that she
  receives adequate medical attention after her
  abortion. The legislature further finds that parental
  consultation is usually desirable and in the best
  interests of the minor.

Section 2(b)(1)-(5).

Section 4(a) of the Act provides that "[n]o person shall perform an abortion upon an unemancipated minor or upon an incompetent unless he or his agent has given at least 24 hours actual notice [in person or by telephone] to both parents or to the legal guardian. . . ." However, a minor or incompetent who objects to notice "may petition, on her own behalf or by next friend, the circuit court of the county in which the minor resides or in which the abortion is to be performed for a waiver of the notice requirement. . . ." Section 4(c).

Section 5 delineates the procedure for waiver of notice. A minor or incompetent may participate on her own behalf in the proceedings. The court shall appoint a guardian ad litem for her and advise her that she has a right to court appointed counsel, available upon her request. Court proceedings "shall be confidential" and "shall be given precedence" to ensure a prompt decision. The circuit court is also required to rule within 48 hours of the application. The court shall waive the notice requirement if it finds that the applicant is mature and well-informed enough to make the abortion decision on her own or if notification would not be in the applicant's best interests. Section 5(e) provides that a confidential record of the evidence be maintained. Further, if a circuit court denies waiver of notice, "[a]n epedited confidential appeal shall be available as the Supreme Court provides by rule. . . ." Section 5(f). Section 5(g) states that "[t]he Supreme Court is respectfully requested to promulgate any rules and regulations necessary to ensure that proceedings . . . are handled in an expeditious and confidential manner."

There are several exceptions to the 24 hour notice requirement available to the applicant: (1) medical emergency as determined by the physician (section 6); (2) when notice has been given and the parties (the parents to whom notice is due under section 4) accompany the minor or incompetent to the place of the abortion or submit signed notarized statements indicating that they have been properly notified (section 7(a)); and (3) notice to a minor's father is not necessary if the mother accompanies her and submits a notarized statement of notification and states orally to the physician that she has a reasonable belief that the father of the unborn child is the minor's father.

Section 8 of the Act provides that anyone who fails to conform to any of the Act's requirements is guilty of a Class A misdemeanor. Further, failure to provide persons to whom notice is due with the requisite information "is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions" for which exemplary damages are not precluded by the statute.

On September 26, 1983, Governor Thompson vetoed SB 521. He found "many constitutional deficiencies", including the "waiver of notice" provisions which, he stated, could not pass constitutional muster under City of Akron v. Akron Center for Reproductive Health, Inc., ___ U.S. ___, 103 S.Ct. 2481, 2991 n. 10, 76 L.Ed.2d 687 (1983) ("Akron") and Bellotti v. Baird, 443 U.S. 622, 644, 99 S.Ct. 3035, 3048, 61 L.Ed.2d 797 (1979) ("Bellotti II". The Governor's veto was overriden on November 2, 1983.*fn4

II. Roe v. Wade and its Progeny: Children and Abortion

A decade*fn5 after the Supreme Court held that the right of privacy, grounded in the concept of personal liberty, guaranteed by the Constitution, encompasses a woman's right to decide whether to terminate her pregnancy, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court reaffirmed that decision in Akron, ___ U.S. ___, 103 S.Ct. 2481, 2487 & n. 1, 76 L.Ed.2d 687 (1983) ("Since Roe was decided in February, 1973, the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy") (citations omitted). However, a "woman's" fundamental right is not absolute, as the Court recognized in Roe, and the right becomes somewhat diluted as the particular "woman" is identified as a minor child or, per the Illinois Act, an "incompetent" or unemancipated minor. See, e.g., H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).

Although a child, merely on account of her minority, is not beyond the protection of the Constitution, see, e.g., Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 222 (1969) (first amendment rights are available to students in a public school), the status of minors under the law is unique in many respects. Bellotti II, 443 U.S. at 633, 99 S.Ct. at 3042.

The Supreme Court has recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children, their inability to make critical decisions in an informed, mature manner, and the importance of the parental role in child rearing. Id. at 634, 99 S.Ct. at 3043. These reasons become especially salient in the context of a minor's decision to undergo an abortion. Moreover, a majority of the Court has indicated that it believes that pregnant adolescents are likely to reach poorly reasoned decisions concerning abortion.*fn6 See, e.g., Bellotti II, supra, 443 U.S. at 640, 99 S.Ct. at 3046; Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 91, 96 S.Ct. 2831, 2851, 49 L.Ed.2d 788 (1976).

State regulations restricting a woman's right to choose abortion must be supported by a compelling state interest. Akron, supra, 103 S.Ct. at 2491. The Court has emphasized, however, that because of the unique status of children under the law, "[s]tates have a `significant' interest in certain abortion regulations aimed at protecting children `that is not present in the case of an adult'". Id. at n. 10, citing Danforth, supra, 428 U.S. at 75, 96 S.Ct. at 2843. To protect immature minors and to promote family integrity, a State may ensure that the abortion decision is made with understanding and after careful deliberation. Akron, supra, 103 S.Ct. at 2500 n. 32, citing H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). However, any State restriction of the right to choose abortion must be "subject to searching judicial examination." Akron, supra, 103 S.Ct. at 2491.

With these considerations in mind, we will assess the constitutionality of SB 521.

III.

Plaintiffs challenge SB 521 on a number of grounds, including its allegedly unconstitutional 24 hour waiting period, its allegedly inadequate judicial alternative to parental notification, and its assertedly over- broad application to incompetents.

Abstention

Defendants argue, for the first time in their reply brief, that because Illinois courts have never had a chance to construe the procedural aspects of SB 521 and to apply them in a constitutional manner, we should abstain from deciding the constitutional issue presented in this case. Under the circumstances, we may not do so.

In Bellotti v. Baird, 428 U.S. 132, 146-147, 96 S.Ct. 2857, 2865-2866, 49 L.Ed.2d 844 (1976) ("Bellotti I"), the Supreme Court indicated that "abstention is appropriate where an unconstrued statute is susceptible of a construction by the state judiciary `which might avoid in whole or in part the necessity for federal constitutional adjudication. . . .'" (citations omitted) The Court noted that, while the equitable practice of abstention is limited by considerations of delay and expense which application of the doctrine inevitably engenders, the Supreme Judicial Court of Massachusetts had adopted a Rule of Court under which an issue of interpretation of Massachusetts law could be certified directly to that court for prompt resolution. Id. At 150, 96 S.Ct. at 2867. The Court admitted that the availability of certification greatly simplified the abstention analysis, especially in the context of resolution of abortion issues where the importance of speed is "manifest". Id. at 151, 96 S.Ct. at 2868. Unlike Massachusetts, the Illinois certification procedures, as provided by Illinois Supreme Court Rule 20, are available only to the Supreme Court of the United States or to the Seventh Circuit Court of Appeals. Cf. Wynn v. Scott, 449 F. Supp. 1302, 1313-1314 (N.D.Ill. 1978), aff'd sub nom Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979) (since abstention is an equitable doctrine, courts should consider whether its consequences are equitable; the absence of a state certification procedure, while not dispositive, points to the long delay which would follow abstention and prolong the uncertainty that women and their physicians would have to endure.) See also Wynn v. Carey, 582 F.2d 1375, 1380-83 (7th Cir. 1978).

Recently, in Akron, supra, 103 S.Ct. at 2498-2499, and in Planned Parenthood, Kansas City, Mo. v. Ashcroft, infra, ___ U.S. ___, 103 S.Ct. 2517 at 2526 n. 21, 76 L.Ed.2d 733 (1983), the Supreme Court declined to abstain from considering challenges to statutory provisions regarding notification and parental consent. Similarly, in Indiana Planned Parenthood v. Pearson, infra, 716 F.2d 1127 at 1133 (7th Cir. 1983) the Seventh Circuit was urged to abstain until the Indiana courts had an opportunity to construe the procedural aspects of the notification statute. The court rejected that suggestion. In addition to its concern with respect to inadequate bypass procedures, the court was also troubled, as are we, "that a substantial period of time will elapse before a state record of interpretations of the statute will be developed, deterring in the meantime many minors from seeking waiver of parental notification." Id.

Because Illinois lacks a procedure whereby a federal district court may certify state law questions to the Illinois Supreme Court for relatively quick determination, see Wynn, supra, 449 F. Supp. at 1314, citing Bellotti I, and because of the urgency inherent in any constitutional determination of the abortion rights of young women, we do not believe that abstention is appropriate here.

24 Hour Waiting Period

Plaintiffs first contend that the 24 hour waiting period required by section 4(a) is unconstitutional, based on the recent Seventh Circuit decision in Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson, 716 F.2d 1127 (7th Cir. 1983) ("Pearson"). In Pearson, the court considered the constitutionality of several sections of an Indiana statute requiring that a physician not perform an abortion upon an unemancipated minor without first notifying her parents. Specifically, the plaintiffs had challenged the constitutional sufficiency of the statutory provisions regarding waiver of the notice requirement. In concluding that these provisions were constitutionally inadequate, the Seventh Circuit based its analysis expressly on the two Supreme Court cases decided last year, Akron and Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, ___ U.S. ___, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) ("Ashcroft").

Plaintiffs point out that the notice provisions in the statute struck down in Pearson (Ind.Code § 35-1-585-2.5(a)) are virtually indistinguishable from the notice provisions of SB 521. Section 2.5(a) provides:

  Sec. 2.5. (a) No physician shall perform an abortion
  upon an unemancipated pregnant woman under the age of
  eighteen (18) years without first having given at
  least twenty-four (24) hours actual notice to one (1)
  of the parents or the legal guardian of the minor
  pregnant woman as to the intention to perform such
  abortion, or if such parent or guardian cannot be
  reached after a reasonable effort to find him or her,
  without first having given at least forty-eight (48)
  hours constructive notice to one (1) of the parents
  or the legal guardian of the minor pregnant woman by
  certified mail to the last known address of one (1)
  of the parents or guardian computed from the time of
  mailing.

In Pearson, Judge Pell held that "the state cannot require that an abortion be delayed once notice has been effected upon a minor's parents." Pearson, supra, 716 F.2d at 1143 (emphasis added). The statute before us requires a waiting period of at least twenty-four hours after notice has been given to the minor's parents, precisely the same waiting period as in Pearson.

While the Supreme Court has not "directly addressed the constitutionality of waiting periods imposed in connection with parental notification or consent statutes," Pearson, supra, 716 F.2d at 1142, it has found a 24 hour waiting period unconstitutional as applied to adult women seeking abortions. Akron, supra, 103 S.Ct. at 2503. Such a waiting period impermissibly burdens a woman's abortion choice by causing delay. The delay increases the cost and attendant scheduling problems of an abortion by requiring a woman to make two trips to the abortion clinic and often results in a delay of more than 24 hours. Both the Seventh Circuit and the Supreme Court have voiced concern over the "two-trip" problem and we share this concern. The possible necessity of "two-trips" would affect minors and incompetents to the same degree that it affects an adult woman.*fn7

In Akron, the Court held that no legitimate state interest was shown to be furthered by "an arbitrary and inflexible waiting period." Akron, supra, 103 S.Ct. at 2503. This holding was based on the Court's conviction that the State's legitimate concern, that a woman's decision be informed, was not reasonably served by a 24 hour delay. Id. While the considerations with respect to minors are not identical with those applicable to adults, in ...


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