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ZBARAZ v. HARTIGAN

October 3, 1991

DAVID ZBARAZ, M.D., et al., Plaintiffs,
v.
NEIL F. HARTIGAN, Attorney General of Illinois, and CECIL A. PARTEE, State's Attorney of Cook County, Defendants


Hubert L. Will, United States District Judge.


The opinion of the court was delivered by: WILL

HUBERT L. WILL, UNITED STATES DISTRICT JUDGE

 On May 4, 1984, we enjoined enforcement of the Illinois Parental Notice of Abortion Act of 1983 ("Act"). Zbaraz v. Hartigan, 584 F. Supp. 1452 (N.D. Ill. 1984), aff'd in part, vacated in part, 763 F.2d 1532 (7th Cir. 1985), aff'd, 484 U.S. 171, 108 S. Ct. 479, 98 L. Ed. 2d 478 (1987). We found that the statute was unconstitutional by imposing a 24 hour waiting period, and by failing to provide an adequate bypass procedure as an alternative to the statute's parental notice requirement. Defendants have now petitioned for us to review the constitutionality of the statute as supplemented by a judicial bypass rule promulgated by the Illinois Supreme Court ("Rule 307"). The defendants also ask us to lift our injunction of the 24 hour waiting period in light of the Supreme Court's decisions in Hodgson v. Minnesota, U.S. , 110 S. Ct. 2926, 111 L. Ed. 2d 344 (1990) and Ohio v. Akron Center for Reproductive Health, U.S. , 110 S. Ct. 2972, 111 L. Ed. 2d 405 (1990) ("Akron II"). Because we find that Rule 307 fails to assure that a minor seeking an abortion is given a constitutionally valid alterative to notifying both her parents, we continue to enjoin enforcement of the Act.

 I.

 A. Case History

 Plaintiffs filed this class action to enjoin the Illinois Attorney General and a defendant class consisting of Illinois state's attorneys from enforcing the Illinois Parental Notice of Abortion Act of 1983, Ill. Rev. Stat. ch. 38, par. 81-61, et seq. The plaintiff class includes physicians who wish to perform abortions for unemancipated minors and adjudicated disabled persons, and minors and disabled persons desiring to obtain an abortion. In 1984, we granted the plaintiffs' motion for summary judgment and permanently enjoined operation of the statute. We held that the statute's 24 hour waiting period unconstitutionally burdened a young woman's decision to have an abortion. We also found that the statute's judicial bypass procedure failed to assure a woman that her waiver of notice hearing, or a subsequent appeal if waiver was denied, would be both confidential and expeditious.

 B. Illinois Parental Notice of Abortion Act of 1983

 The Illinois Parental Notice of Abortion Act was enacted by the Illinois General Assembly on November 2, 1983, over Governor Thompson's veto. Section 4 of the statute requires a person performing an abortion upon an "unemancipated minor" or "incompetent" to give 24 hours actual notice (by phone or in person) to both the pregnant woman's parents. Only one parent must be notified if the woman's parents are divorced or if one of the parents is "not available." Another adult who is "standing in loco parentis" may be notified if neither parent is available. Section 6 of the statute provides an exception to the statute's notification requirement if a medical emergency "requires an immediate abortion." The required 24 hour waiting period is also lifted under Section 7 if the woman has already notified both her parents (or the appropriate adult as provided by Section 4) and they either accompany her to the location where the abortion will be performed or sign notarized statements stating that they have received notice.

 A pregnant minor may avoid giving notice to her parents by petitioning on her own or "by next friend" the circuit court in the county where she is living, or the one in which the abortion will be performed, for a judicial waiver of notice under the procedures set out in Section 5 of the Act. These procedures provide that the court "shall appoint a guardian ad litem" for the woman and "shall advise her that she has a right to court appointed counsel and shall provide her with such counsel upon her request." Court proceedings are to be "confidential" and "ensure anonymity."

 The circuit court must rule on the petition within 48 hours of receiving the minor's application except if the woman herself requests an extension. The court is directed to waive parental notice if it finds that the woman is mature or notice would not be in the woman's best interests. The court must issue a written opinion stating its findings and decision and must order that "a confidential record of the evidence be maintained." The Act also provides that "an expedited, confidential appeal shall be available, as the Supreme Court provides by rule" if waiver is denied, and directs the Illinois Supreme Court "to promulgate any rules . . . necessary to ensure proceedings under this Act are handled in an expeditious and confidential manner."

 C. Illinois Supreme Court Rule 307

 Section 5 of the Act now incorporates Illinois Supreme Court Rule 307(e). The Rule provides that a woman may appeal a denial of waiver of parental notice by filing a written petition in the Appellate Court. A supporting record must be filed with the petition "which shall include the notice of interlocutory appeal; the pleadings filed in the circuit court, if any; the decision of the circuit court including the specific findings of facts and legal conclusions supporting the decision; and any supporting documents of record the petition may offer." She may file her appeal "using only her initials or a pseudonym."

 The petitioner may also file a memorandum supporting her appeal within two days of the circuit court's denial of the waiver. The Rule further provides that "any respondent that desires to do so may file, with proof of personal service, any responding memorandum within two days following the filing of the petition, supporting record, and any memorandum which the minor . . . files and serves on respondents of record." The Appellate Court "may . . . order a different schedule or order that no memoranda be filed, or order that other materials need not be filed." No replies or extensions of time are allowed under the Rule and oral argument "will not be heard." The court must decide the petition within two days after receiving a complete record and any memoranda. Counsel shall be appointed at the woman's request or if the court finds it necessary. The Rule also provides that all records are to be sealed and may be examined only by the woman, her attorney or her guardian ad litem, and "judges, social workers or other individuals whom the court may find necessary to assist in this appeal."

 II.

 A woman's constitutional right to obtain an abortion extends to minors. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976); Bellotti v. Baird, 443 U.S. 622, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979) ("Bellotti II "). A State, however, "may have a significant interest promoted by a statute which regulates minors, but would have no legitimate interest in applying that statute to adults." Zbaraz, 763 F.2d at 1536. But any such statute may not allow a third party to impose an absolute veto over the woman's decision whether or not to bear a child. Danforth, 428 U.S. at 74-5.

 Statutes such as the Illinois Act, which require notification of both parents, must provide a judicial bypass procedure. See Hodgson, 111 L. Ed. 2d 344, 110 S. Ct. 2926; Bellotti II, 443 U.S. at 643. The alternative procedure must allow her to demonstrate that either she is mature enough to make an independent decision to have an abortion, or even if she lacks sufficient maturity that an abortion would be in her best interests. Bellotti II, 443 U.S. at 644. The procedure must also "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 obtained." Id. See also Akron II, 110 S. Ct. at 2979 (employing Bellotti II analysis to review bypass procedure).

 Against these standards we previously measured the bypass procedure in the Illinois Act and found that the statute failed to provide a constitutional alternative to parental notification. We now consider whether Supreme Court Rule 307 has cured the waiver procedure's constitutional deficiencies, and whether the Rule itself ...


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