in Hodgson and Akron II would not make continued enjoining of the 24 hour waiting period in the Illinois Act inequitable.
A waiting period may provide a pregnant minor the opportunity to consult with her parents after they have been notified of her decision to obtain an abortion. Hodgson, 110 S. Ct. at 2944 (Stevens, J.); See also 110 S. Ct. at 2969 (Kennedy, J. finding that a waiting period preserves a parent's right to consult with their daughter). However, once a minor's parents are both notified and consent to the abortion, the State has no interest in imposing any delay. Unlike the statutes found constitutional in Hodgson and Akron II, the Illinois Act imposes significant burdens even on a young woman whose parents, after being notified of her intent to obtain an abortion, give their consent.
The Minnesota and Ohio parental notification statutes permit a woman who has obtained parental consent to avoid a waiting period by simply presenting her parent's written consent to her doctor. Id. at 2930 ("Notice is mandatory unless . . . both . . . parents have consented in writing."); Akron II, 110 S. Ct. at 2977 "([A] physician may perform an abortion on the minor if one of her parents . . . has consented to the abortion in writing."). In Hodgson, Justice Stevens (writing for himself and Justice O'Connor), while finding that a 48 hour waiting period after notifying one parent does not itself obstruct a minor's decision to terminate her pregnancy, noted that "it is significant that the [Minnesota] statute does not impose a waiting period if a substitute competent decisionmaker -- parent or court -- gives affirmative consent to the abortion." 110 S. Ct. at 2944-5 & n. 35. Similarly, in Planned Parenthood v. Miller, supra, the Eleventh Circuit, in finding a 24 hour waiting period in the Georgia Parental Notification Act constitutional, emphasized that the statute "authorizes an abortion immediately if the parent previously has been notified or believes that consultation with the minor is unnecessary." 934 F.2d at 1475 (emphasis added).
The Illinois Act, by contrast, imposes a mandatory 24 hour waiting period unless the minor provides the notarized written consent of both parents (if both parents are "available" for notification) or both parents accompany their daughter to the location where the abortion will be performed. We have already expressed concern about the burdens imposed by these requirements. As we noted in our earlier opinion, "submission to a notary of an affidavit stating that the parties have been previously notified of the minor's abortion decision may, in many communities, be tantamount to publication of the information in a local newspaper." Zbaraz, 584 F. Supp. at 1462. The notary requirement not only breaches the confidentiality of the minor's decision to terminate her pregnancy, but also may create significant scheduling problems. These same scheduling problems are also created by requiring both parents to go with their daughter to the place where the abortion will be performed. As the Seventh Circuit observed, "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." Zbaraz, 763 F.2d at 1538.
Defendants contend that the Illinois statute is more flexible than the Minnesota statute reviewed in Hodgson because it provides exceptions to two parent notification if one or both parents are "not unavailable." The "unavailability" provision itself, however, is problematic. Section 4(b) provides: "If neither parent nor the legal guardian is available to the person performing the abortion . . . within a reasonable time or manner, notice to any adult person standing in loco parentis shall be sufficient." The statute, however, fails to define when a minor's parents are "not available" or what constitutes "in a reasonable time or manner." Moreover, the alternatives to two parent notice provided under the Act do not obviate the need for a parent or person in loco parentis to accompany the minor to where the abortion will be performed or to sign a notarized statement to avoid the waiting period.
Defendants have failed to demonstrate that further application of the injunction against the 24 hour waiting period would be inequitable. The Illinois Act's alternatives to the waiting period are in essence illusory -- in many cases complying with the Act's requirements will themselves impose at least a 24 hour or more delay. Id. The alternatives to 24 hours notice to both parents provided under the Act are likely to cause unwarranted delay and may breach the minor's entitlement to make a confidential decision to terminate her pregnancy. For these reasons, and because the statute fails to provide a constitutional bypass procedure, continued enjoining of the 24 hour waiting period is not inequitable.
One final note. We remain concerned by the confusion caused by the Act's failure to permit constructive notice. See Zbaraz, 584 F. Supp. at 1466-7. Both the Minnesota and Ohio statutes upheld by the Supreme Court, while requiring a physician to make a reasonable effort to notify the pregnant woman's parents, allow for constructive notification. Hodgson, 110 S. Ct. at 2931 n. 3; Akron II, 110 S. Ct. at 2990 n. 4. The Illinois Act exposes a physician to possible criminal and civil liability but it fails to limit the amount of "reasonable effort" that must be made in contacting the pregnant woman's parents or to provide an alternative to giving actual notice. Moreover, there is obvious potential for significant delay when a physician is attempting to achieve notice by phone or in person. We therefore continue to believe that a constructive notice provision should be included in the Illinois Act to avoid unnecessary confusion and delay.
As is apparent from this opinion, we find that the Act as amended by Rule 307 remains constitutionally defective in several regards. We have also noted a number of other respects in which the statute and the Rule are less satisfactory than those of states whose notification laws the Supreme Court has upheld, although not constitutionally defective in those respects. We express the hope that a revised procedure can be adopted which not only satisfies the constitutional requirements but includes provisions dealing with the possible improvements we have noted.
Defendants' motion to modify the existing injunction against the 24 hour notice period is denied. The waiver of notice procedure provided by the statute and Supreme Court Rule 307 is unconstitutional, and we therefore continue the injunction against the defendants from enforcing any provisions of the Illinois Parental Notice of Abortion Act of 1983.