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Zbaraz v. Hartigan

May 20, 1985

DAVID ZBARAZ, M.D. AND ALLAN G. CHARLES, M.D., INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES
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-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84 C 771--Hubert L. Will, Judge.

Bauer, Coffey, Circuit Judges, and Brown, Senior District Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

This appeal concerns the constitutionality of Illinois' Parental Notice Abortion Act of 1983 (the Act). The district court fund that the twenty-four hour waiting period imposed by Section 4(a) of the Act was unconstitutional because it unduly burdened the minor's right to have an abortion in the absence of a compelling state interest. Zbaraz v. Hartigan, 584 F. Supp. 1452, 1458-59 (N.D. Ill. 1982). The district court also found that the judicial procedures contained the Section 5 of the Act permitting waiver of notice to the minor's parents were unconstitutional because they failed to assure the expeditious and confidential disposition of the proceedings at the trial level and on appeal. 584 F. Supp. at 1460-62. The district court held that these provisions were not severable from the Act because without them the Act would have little "operative significance," and therefore declared the entire Act unconstitutional. Id. at 1464. Appellants appeals these holdings.

We affirm the district court's holding that the twenty-four hour waiting period imposed by Section 4(a) in unconstitutional. We vacate, however, the district court's holding that the provisions relating to the waiting period are not severable, and accordingly we sever those provisions from the Act. We also vacate the district court's holding that the judicial procedures permitting waiver of notification provided for under Section 5 are unconstitutional, but enjoin enforcement of the Act until the Illinois Supreme Court promulgates rules which assure the expeditious and confidential disposition of the waiver of notice proceedings at trial and on appeal.

I. Statement of Facts

On November 2, 1983, the Illinois General Assembly enacted the Illinois Parental Notice of Abortion Act of 1983, P.A. 83-890, overriding the veto of Governor James Thompson. On January 26, 1984, plaintiffs filed a class action suit in federal court challenging the constitutionality of the Act. On that date the district court entered a temporary restraining order enjoining enforcement of the Act.

The district court subsequently certified both plaintiff and defendant classes. The plaintiff class consists of all licensed physicians presently performing or desiring to perform abortions for unemancipated minors and disabled persons in Illinois and all unemancipated minors capable of giving informed consent to an abortion or whose best interests would not be served by notice to both parents. The defendant class consists of all the State's Attorneys of the various counties in Illinois.

On May 4, 1984, the district court granted plaintiffs' motion for summary judgment, declaring the Act unconstitutional and permanently enjoining its enforcement. The district court fund that the twenty-four hour waiting period imposed by the Act after a minor had notified both parents of her decision to have an abortion unconstitutionally burdened her right to have an abortion. The district court also found that the judicial alternative to notice provided by the Act was unconstitutional because it failed to assure that the proceedings would be conducted expeditiously and confidentially. The district court upheld the other provisions of the Act, but found that it could not sever the unconstitutional provisions without eviscerating the Act, and therefore declared the entire Act unconstitutional.

On June 30, 1984, the Illinois General Assembly amended the Act to provide that the waiver of notice proceedings "shall insure anonymity" and added a severability clause to the Act. P.A. 83-1128. These amendments were immediately enjoined. Defendants then filed this appeal, challenging the district court's holdings.

II. The Twenty-Four Hour Waiting Period

In City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), the Supreme Court struck down an ordinance which imposed a twenty-four hour waiting period on women who had, pursuant to the ordinance, given written consent to obtain an abortion. 103 S. Ct. at 2503. The stated purpose underlying the waiting period was to allow a woman time to reflect upon her decision to have an abortion, thereby making a more "informed" decision. The Court found that this provision imposed a burden on women seeking to obtain an abortion and that the state had failed to demonstrate that the waiting period furthered any legitimate state interest. Id, at 2503. Therefore, the Court held that the provision was unconstitutional.

Although the ordinance struck down in Akron applied to both adults and minors, the Supreme Court has not specifically addressed the application of waiting periods only to minors or weighed the state's interest in promoting parental consultation with a minor who seeks to obtain an abortion against the burdens imposed on minors by a waiting period. The Akron court also stated that, in view of the unique status of children under the law, states have a "significant" interest in certain abortion regulations aimed at protecting children which is not present when the state seeks to regulate adults. Akron, 103 S. Ct. at 2491 n.10 (citing Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976)). The holding in Akron, therefore, may not apply to minors. In view of the other case law in this area, however, including several cases from this circuit, it is apparent that the Supreme Court's prohibition of waiting periods in abortion statutes also extends to statutes which regulate only minors.

The constitutional rights of minors do not receive lesser protection than the rights of adults. Danforth, 428 U.S. at 74 (citations omitted); Charles v. Carey, 627 F.2d 772, 785 (7th Cir. 1980). Similarly, the burdens imposed by state regulation of abortion are no different for minors than for adults. Bellotti v. Baird, 443 U.S. 622, 642, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979) (Bellotti II.); Indiana Planned Parenthood v. Pearson, 716 F.2d 1127, 1143 (7th Cir. 1983); Wynn v. Carey, 599 F.2d 193, 196 n.6 (7th Cir. 1979). Rather, the difference between abortion statutes which regulate adults and those which regulate only minors is that the state may have a significant interest promoted by a statute which regulates minors, but would have no legitimate interest in applying that state to adults. Akron, 103 S. Ct. at 2491 n.10; Danforth, 428 U.S. at 75. For example, the state has a legitimate interest in promoting parental consultation with a minor who is seeking to obtain an abortion because of the minor's presumed inability to make important decisions in an informed, mature manner and the serious concerns implicated by a decision to have an abortion. Bellotti II, 443 U.S. at 634. The state has no legitimate interest, however, in promoting such consultation when the woman seeking an abortion is mature. Akron, 103 S. Ct. at 2497.

The state clearly has a significant interest in promoting parental consultation with a minor before her decision to have an abortion. Akron, 103 S. Ct. at 2491 n.10; H.L. v. Matheson, 450 U.S. 398, 409-10, 67 L. Ed. 2d 388, 101 S. Ct. 1164 (1981) (quoting Bellotti II, 443 U.S. at 640-41); Pearson, 716 F.2d at 1143. On the other hand, a mature minor or an immature minor in whose best interest it is to have an abortion has a constitutional right to have an abortion without notifying her parents. Matheson, 450 U.S. at 420 (Powell, J., concurring); Bellotti II, 443 U.S. at 647. Accord Akron, 103 S. Ct. at 2497-98 (parental consent statute) Planned Parenthood, Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 2525, 76 L. Ed. 2d 733 (1983) (parental consent statute). In balancing these two rights, the Supreme Court upheld a parental notification statute in Matheson because that statute promoted the state's interest in parental consultation with a minor without unduly burdening a minor's right to have an abortion. Matheson, 450 U.S. at 413. Accord Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983) (upholding parental consent statute).

Neither the parental notification statute which the Court upheld in Matheson nor the parental consent statute which the Court upheld in Ashcroft requires a waiting period after notification or consent is effected. It is also worth noting that in Ashcroft the state did not appeal the Eighth Circuit's holding that the Missouri statute's forty-eight hour waiting period was unconstitutional. Ashcroft, 655 F.2d 848, 866 (8th Cir. 1981), aff'd in part, rev'd in part on other grounds, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983) (waiting period severed from statute). We have been able to find only one case in which a waiting period has been upheld, Wolfe v. Schroering, 541 F.2d 523, 526 (6th Cir. 1976), and that holding was subsequently overruled by the Sixth Circuit in City of Akron v. Akron Center for Reproductive Health, Inc., 651 F.2d 1198, 1208 (6th Cir. 1981), aff'd in part, rev'd in part on other grounds, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983). Moreover, a plethora of cases have struck down provisions imposing a waiting period. See, e.g., Akron, 103 S. Ct. at 2503 (parental consent statute); American College of Obstetricians v. Thornburgh, 737 F.2d 283, 293 (3d Cir. 1984) (parental consent and informed consent statute); Indiana Planned Parenthood v. Pearson, 716 F.2d 1127, 1143 (7th Cir. 1983) (parental notification statute) Womens Services P.C. v. Thone, 690 F.2d 667, 668 (8th Cir. 1982) vacated sub nom. for further consideration in light of Akron, Kerrey v. Women's Services P.C., 462 U.S. 1126, 103 S. Ct. 3102, 77 L. Ed. 2d 1358 (1983) (parental notification statute); Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1014-16 (1st Cir. 1981) (parental consent and informed consent statute); Charles v. Carey, 627 F.2d 772, 786 (7th Cir. 1980) (informed consent statute); Wynn v. Carey, 599 F.2d 193, 196 (7th Cir. 1979) (parental consent statute); Women's Medical Center of Providence, Inc. v. Roberts, 530 F. Supp. 1136, 1137, 1147 (D.R.I. 1982) (informed consent statute); Leigh v. Olson, 497 F. Supp. 1340, 1348 (D.N.D. 1983) (parental notification and informed consent statute); Margaret S. v. Edwards, 488 F. Supp. 181, 212 (E.D. La. 1980) (parental notification and informed consent statute); Women's Community Health Center v. Cohen, 477 F. Supp. 542, 551 (D. Me. 1979) (informed consent statute).

These cases hold that a waiting period places a direct and substantial burden on women who seek to obtain an abortion. This burden is the same for minors as for adults, Bellotti II, 443 U.S. at 642; Charles v. Carey, 627 F.2d at 785, and therefore "the same objections to the waiting periods for adults listed in City of Akron apply to waiting periods for minors." Pearson, 716 F.2d at 1143. The burden imposed by a waiting period has been reiterated with little variation in these cases. The District Court of Rhode Island cogently discussed several factors which it considered part of this burden in Women's Medical Center of Providence, Inc. v. Roberts, supra, stating.

Although a mere twenty-four delay by itself may not increase the risk of an abortion to a statistically significant degree, the record in this litigation shows that the mandatory wait may combine with other scheduling factors such as doctor availability, work commitments, or sick leave availability, to increase the actual waiting period to a week or more . . . . [I]t is uncontested that delays of a week or more do indeed increase the risk of abortion to a statistically significant degree . . . . Furthermore, a delay of even twenty-four hours may push a woman into the second trimester, thus requiring that the operation be performed in a hospital, and significantly increasing the procedure's cost, inconvenience, and, of course, risk.

530 F. Supp. at 1146. *fn1

Courts have also noted that difficulties in scheduling may be complicated by the distance which a woman may have to travel in order to obtain an abortion. An extreme example of this was before the District Court of North Dakota in Leigh v. Olson, supra, in which the district court found that only one doctor in the entire state performed abortions and that women in certain parts of the state would have to drive some 400 miles in order to obtain an abortion. 497 F. Supp. at 1347. Finally, the cases cited above have noted that a waiting period may result in additional mental anguish for a significant number of women seeking abortions. See, e.g., Leigh v. Olson, 497 F. Supp. at 1347 n.8 and accompanying text.

Because a waiting period places a direct and substantial burden on women who seek to obtain an abortion, the state is required to prove that the regulation is "narrowly drawn to further a compelling interest." Charles v. Carey, 627 F.2d at 785. Accord Akron, 103 S. Ct. at 2495; Doe v. Bolton, 410 U.S. 179, 195, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1974). Although it is not disputed that the state's interest in promoting parental consultation with a minor who seeks to obtain an abortion is significant, this Circuit has held that the state's interest is insufficient to impose a waiting period in light of the burden it places on the minor's right to obtain an abortion. Pearson, 716 F.2d at 1143. Accord Wynn v. Carey, 599 F.2d at 196. Mere parental notification, however, promotes the state's interest in parental consultation and is not unduly burdensome if it provides an exception to parental notification for mature minors and immature minors whose best interests require an abortion. Akron, 103 S. Ct. at 2497-98; Ashcroft, 103 S. Ct. at 2525; Pearson, 716 F.2d at 1132. Moreover, in Pearson we noted that "[n]otification itself in most cases should lead to parental consultation without the state's additional help because minors are particularly susceptible to parental wishes." 716 F.2d at 1132. Thus, it appears that a mandatory waiting period is unconstitutional for two reasons; first, it imposes a far greater burden on a minor's rights than a parental notification requirement which provides an exception to notification for mature minors and immature minors whose best interests require an abortion, and second, it does not significantly further the state's interest in promoting parental consultation when combined with a notification requirement, which itself promotes that interest.

In view of the case law, the waiting requirement imposed by Section 4 of Illinois' 1983 Parental Notice Abortion Act, standing alone, is unconstitutional. The state argues, however, that the waiting period is not mandatory, and hence, not unconstitutional, because of the provisions of Section 7 of the Act. Section 7 provides that the twenty-four hour waiting requirement imposed by Section 4 does not apply when the minor's parents have been notified of the minor's decision to obtain an abortion and both parents either accompany the minor to the place where the abortion is to be performed or "submit signed notarized statements indicating that they have been notified," presumably to the doctor who is perform the abortion. The question before this court, therefore, is whether the provisions of Section 7 remove the constitutional infirmity from the waiting period imposed by Section 4.

As noted above, one reason that a waiting period is unconstitutional is because of the undue burden which it places on a woman's right to obtain an abortion. A proper initial question might then be whether the provisions of Section 7 alleviate in any way the burden imposed by Section 4. In order to avoid the strictures of Section 4, Section 7 requires a minor to coordinate the activities of both her parents to accompany her to an abortion clinic or to appear before a notary to sign a statement. These requirements, rather than alleviating the burden imposed by a waiting period, seem to increase it. The problems of scheduling, travel, and expense inherent in a waiting period will increase threefold if a minor's parents are required to accompany her to the abortion clinic or to make arrangements to appear before a notary. Thus, the requirements of Section 7 are more likely to result in greater delay in obtaining an abortion after a minor has notified her parents than the twenty-four hour wait imposed by Section 4. Therefore, Section 7 does not alleviate the burden imposed by Section 4, but merely offers an alternative, and apparently greater, burden to that which the case law holds unconstitutional.

Moreover, Section 7 does not seem to cure the defects of a waiting period which this Circuit addressed Pearson. In Pearson, we found that the Indiana statute's waiting period was unconstitutionally "arbitrary and inflexible because it applies both to minors whose parents have been notified within the time period and object and those whose parents have already expressed approval for the abortion." 716 F.2d at 1143. This same objection applies to Illinois' statute. Section 7 does not provide an exception to the waiting period for a minor whose parents approve of her decision to have an abortion; it merely provides her with an opportunity to obtain an abortion within twenty-four hours after notifying her parent's only if she complies with further requirements. As discussed above, it is unlikely that these requirements can be fulfilled within the twenty-four waiting period. Regardless, the imposition of further burdensome requirements once notice has been effected violates the plain command of Pearson that "the state cannot require that an abortion be delayed once notification has been effected upon a minor's parents." 716 F.2d at 1143. Accord Akron, 103 S. Ct. at 2503. Thus, even if a minor could fulfill the requirements of Section 7 after only a short delay, that section is unconstitutional.

In examining Section 7's effect on the second constitutional infirmity of a waiting period, whether it sufficiently furthers the state's interest in parental consultation in view of the parental notice requirement, it is evident that the provisions of Section 7 do not make a waiting period more efficacious in promoting parental consultation. The only apparent effect of Section 7 is to make it more difficult for a minor to obtain an abortion once she has notified her parents of her decision if she does not wish to submit to the burden of a twenty-four hour waiting period. Thus, it does not appear that Section 7 promotes any state interest other than perhaps the state's interest in enforcing an unconstitutional waiting period under the guise that its statute provides "exceptions" to the waiting requirement.

In sum, Section 7 does not alleviate the burden on a minor's right to have an abortion and it does not further the state's interest in promoting parental consultation. Therefore, Section 7 does not remedy the constitutional infirmity of the waiting period imposed by Section 4.

III. The Judicial Alternative to Parental Notification

As the Supreme Court stated in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), the relevant legal standards governing the adequacy of judicial alternatives to parental consent are not in dispute. 103 S. Ct. at 2497. A state's interest in protecting immature minors is sufficient to require parental consent, but "the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interest." Akron, 103 S. Ct. at 2497-98. See Planned Parenthood of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 2525, 76 L. Ed. 2d 733 (1983); Bellotti v. Baird, 443 U.S. 622, 643-44, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979) (Bellotti II). This standard also governs provisions requiring parental notification. Bellotti II, 443 U.S. at 651; Pearson, 716 F.2d at 1132. Illinois' Parental Notice Abortion Act does provide a judicial procedure for waiver of the parental notification requirement. The issue before this court is therefore whether the Illinois statute's judicial alternative is constitutionally sufficient. See Ashcroft, 103 S. Ct. at 2525.

In Bellotti II, the Supreme Court held that the judicial alternative to parental notification "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 performed." 443 U.S. at 644. See Ashcroft, 103 S. Ct. at 2525 n.16. Appellees do not contest the sufficiency of the procedures established in Section 5 for making the determination that a minor is mature or that, if the court finds that she is immature, an abortion is nonetheless in her best interests. Section 5(e) provides that the court "shall issue written and specific factual findings and legal conclusions supporting its decision." It is also uncontested that Section 5 provides that the hearing shall be held and a decision rendered with sufficient expediency. Section 5(c) provides that "in no case shall the court fail to rule within 48 hours of the time of application." Rather, the dispute is whether Sections 5(f) and (g) sufficiently provide for an expedited appeal of the court's decision.

Section 5(f) provides that "[a]n expedited confidential appeal shall be available as the Supreme Court provides by rule . . . ." Section 5(g) further states that "[t]he Supreme Court is respectfully requested to promulgate any rules and regulations necessary to ensure that proceedings under this Act are handled in an expeditious and confidential manner." Moreover, the state contends that expedited appeals are currently available to minors pursuant to Illinois Supreme Court Rules 303 and 311, and that therefore the judicial alternative to parental notification is adequate even if the Illinois Supreme Court feels "that additional rules are unnecessary at this time" Appellant's Br. at 25.

In Ashcroft, the United States Supreme Court upheld the Missouri parental consent statute's provision providing for expeditious appeals, which provided that

The notice of intent to appeal shall be given within twenty-four hours from the date of issuance of the order. The record on appeal shall be perfected within five days from the filing of notice to appeal. Because time may be of the essence regarding the performance of the abortion, the supreme court of this state shall, by court rule, provide for expedited appellate review of cases appealed under this section.

Mo. Rev. Stat. § 188.028.2(6) (Supp. 1982).

The Court held that "this section provides the framework for a constitutionally sufficient means of expediting judicial proceedings." 103 S. Ct. at 2525 n.16. Although the state supreme court had not promulgated any rules assuring expediency at the time the case was heard because the district court had enjoined enforcement of the statute immediately after it went into effect, the Court stated that it had "no reason to believe that Missouri will not expedite any appeal consistent with the mandate in our prior opinions." Id.

The Illinois statute does not provide any regulation of appellate procedure, such as the twenty-four hour and five day limitations imposed by the Missouri statute. The Illinois Constitution, however, prohibits the state legislature from making specific rules governing appellate procedure. These rules may only be enacted by the Illinois Supreme Court. See ILL. CONST. art. VI, § 16. Thus, the issue is whether Section 5's general instructions to the Illinois Supreme Court to promulgate rules providing for the expeditious and confidential appeal of decisions under the Act provide "the framework for a constitutionally sufficient means of expediting" the appeal.

The Court's language in Ashcroft that the Missouri statute's provisions were sufficient because it had "no reason to believe that Missouri will not expedite any appeal consistent with the mandate in [the Supreme Court's] prior opinion" indicates that the Court is willing to allow a state supreme court the opportunity to enact constitutional rules governing appeals before it will strike down the statute for failing to provide a judicial alternative to parental notification. Because of the Illinois legislature's constitutional inability to prescribe such rules, this approach is logical in this case. This approach also appears to be consistent with this Circuit's holding in Indiana Planned Parenthood v. Pearson, 716 F.2d 1127 (7th Cir. 1983), which struck down an Indiana parental notification statute because, among other grounds, it did not "even ...


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