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Zbaraz v. Madigan

February 28, 2008

DAVID ZBARAZ, M.D., ET AL., PLAINTIFF,
v.
LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable David H. Coar

MEMORANDUM OPINION AND ORDER

Before this Court is Defendants, Lisa Madigan, et. al.'s, motion to dissolve the February 9, 1996 Permanent Injunction Order entered at the request of Plaintiffs David Zbaraz, M.D., et al. For the reasons stated below, Defendants' motion is DENIED.

I. FACTS

On June 1, 1995, the Illinois Parental Notice of Abortion Act of 1995 ("1995 Act") was enacted, repealing the previous Illinois Parental Notice of Abortion Act of 1983. The 1995 Act provides that a doctor may not perform an abortion upon a minor or incompetent person without giving at least 48 hours actual notice to an adult family member. 750 ILCS 70/15. Section 20 of the 1995 Act provides several exceptions to this rule, including: (1) if the minor or incompetent person is accompanied by a person entitled to notice; (2) notice is waived in writing by a person who is entitled to notice, (3) the attending physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide the required notice, (4) the minor declares in writing that she is a victim of sexual abuse, neglect or physical abuse by an adult family member, or (5) judicial waiver of notice. In the case of abuse (4), the attending physician must certify in the patient's medical record that he or she has received the written declaration of abuse or neglect, and any notification of public authorities of abuse that may be required under other laws of this State need not be made by the person performing the abortion until after the minor receives an abortion that otherwise complies with the requirements of this Act. Under the judicial waiver (5), a court will waive notification if it determines that the minor is sufficiently mature and well informed to maker her own decision, or if notification would not be in the best interest of the minor. 750 ILCS 70/25(d). The judicial waiver of notice procedures require that court proceedings be confidential and that the anonymity of the minor is ensured; the statute requires the court to appoint a guardian ad litem, advise her of her right to court-appointed counsel, and appoint counsel upon her request. 750 ILCS 70/25(b).

Section 25(g) of the 1995 Act provides that the "Supreme Court [of Illinois] 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." 750 ILCS 70/25(g). On June 9, 1995, district court Judge Will entered an Agreed Preliminary Injunction enjoining enforcement of the 1995 Act because, at the time, the Supreme Court of Illinois had not been afforded an opportunity to promulgate the judicial bypass rules referenced in Section 25(g). On December 22, 1995, Defendants Attorney General Ryan and Cook County State's Attorney O'Malley filed a written status report advising the district court that the Supreme Court of Illinois had declined to promulgate the judicial bypass rules requested by Section 25(g) of the 1995 Act. On February 9, 1996, Judge Plunkett entered a Permanent Injunction Order, finding that the Supreme court of Illinois had not promulgated judicial bypass procedures and rules, as required by Section 25 of the 1995 Act, and therefore, the 1995 Act remained incomplete and could not be implemented.

On September 20, 2006, the Supreme Court of Illinois adopted Illinois Supreme Court Rule 303A, effective immediately. Rule 303A is entitled "Expedited and Confidential Proceedings Under the Parental Notification of Abortion Act." Rule 303A provides, inter alia, that (1) upon filing of a petition for judicial waiver of notice by a minor or incompetent person, the Circuit Court shall rule and issue written findings of fact and conclusions of law within 48 hours of the time the petition was filed, (2) a minor or incompetent person shall be entitled to an appeal to the Appellate Court as a matter of right when the circuit court denies her a waiver of notice, and (3) the petitioner may use a pseudonym and all documents relating to proceedings shall be impounded and sealed subject to review by the minor only.

On January 19, 2007, Defendants filed a petition presenting Rule 303A for review, asking the court to dissolve the permanent injunction. On February 6, 2007, this court denied the petition without prejudice for lack of ripeness. On February 27, 2007, the Justices of the Supreme Court of Illinois wrote a letter to Attorney General Madigan stating, Representations made by the Illinois Attorney General's Office to Judge David Coar to the effect that the circuit and appellate courts of Illinois were not administratively prepared to proceed in adjudicating matters brought pursuant to the Parental Notification Act were in error. The Illinois Supreme Court, having adopted Supreme Court Rule 303A, is in compliance with section "g" of the Parental Notification Act. We presume, and therefore assert that, as with the enactment of any new law, our state courts are prepared to proceed to apply the law as enacted.

On March 23, 2007, Defendants brought the current Motion to Dissolve the February 9, 1996 Permanent Injunction Order before this court.

II. LEGAL STANDARD

Rule 60(b)(5) and (b)(6) grants this court authority to relieve a party from a final judgment or order if "(5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it if no longer equitable that the judgment should have prospective application," or if there is "(6) any other reason justifying relief from the operation of the judgment." A change or modification of a permanent injunction is extraordinary relief and requires a showing of extraordinary circumstances. Protectoseal Co. v. Barancik, 23 F.3d 1184, 1186 (7th Cir. 1994); Money Store, Inc. v. Harriscorp Finance, Inc., 885 F.2d 369, 372 (7th Cir. 1989); Ben Sager Chemicals Int'l v. E. Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977). The burden is on the party seeking modification of the order to present clear evidence establishing that a significant change in either factual conditions or the law renders enforcement of the order inequitable. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed. 2d 867 (1992); United States v. Rueth Dev. Co., 335 F.3d 598, 603 (7th Cir. 2003); Protectoseal Co., 23 F.3d at 1186. The Seventh Circuit has made clear that "a court can modify an injunction that it has entered whenever the principles of equity require it do so." In the Matter of Hendrix, 986 F.2d 195, 198 (1993). The standard for modification is based not only on hardship to the enjoined party, but also on whether there remains a need to continue the injunction. In other words, one question to be asked is whether the purposes of the injunction been fulfilled. United States v. Chicago, 663 F.2d 1354, 1360 (7th Cir. 1981).

III. ANALYSIS

Defendants ask this court to vacate the permanent injunction on the ground that the purposes of the injunction have been fulfilled, and that equity requires the injunction to be lifted. The permanent injunction, entered by Judge Plunkett on February 9, 1996, stated that the reason for the permanent injunction was that the Supreme Court of Illinois had not promulgated rules governing waiver of notice appeals, as required by Section 25 of the 1995 Act. In New Rule 303A, entered on September 2006, the Supreme Court of Illinois specifically gives procedures for appellate review in sections (b), (c) and (h) of the New Rule. Rule 303A(c) states: "Review of the denial of a waiver of notice under the Parental Notice of Abortion Act shall be by petition filed in the Appellate Court. The petition shall be in writing, state the relief requested and the grounds for the relief requested, and filed within two days, weekends and holidays excluded, of entry of the denial from which review is being sought, except that the two-day period may be extended at the request of the minor or incompetent person." Defendants argue that the purpose of the injunction has been fulfilled, since the Supreme Court of Illinois has issued new rules for judicial bypass and appeals procedures and the change in the law has rendered continued injunction inequitable.

Plaintiffs argue that the injunction should be continued because (1) the new statute remains unconstitutional on its face, and (2) the state courts are not prepared to implement Rule 303A procedures. As to the second point, the Supreme Court of Illinois has written a letter stating that "our state courts are prepared to proceed to apply the law as enacted." This court declines to speculate that the state courts cannot adequately implement the law, before it has had a chance to carry out the procedures. If the implementation is inadequate and an injury occurs, the injured party may then bring a separate suit when the issue is ripe. In the mean time, this court will presume that the state courts can and will carry out Rule 303A procedures properly and adequately.

The question still remains whether Rule 303A is constitutional on its face. Plaintiffs argue that Rule 303A (1) effectively denies abortions to "immature, best interest" minors, and (2) denies minors assurance of confidentiality. As to the first issue, Plaintiffs assert that the 1995 Act and Rule 303A fail to provide authorization of consent for an abortion for "best interest" minors. The 1995 Act authorizes the court to waive parental notification when it is in the "best interest" of the child, but does not authorize a method of consent for the abortion. Thus, under the statute, a "best interest" minor who has waived parental notification is left without a mechanism to obtain consent for the abortion, and thus is in legal limbo. Defendants argue that the statute would be contradictory if interpreted in this fashion, and that it should be assumed that authorization of consent for an abortion is granted when parental notification is waived. The problem with Defendants' interpretation is that it reads something into the statute that is not there, and further is not supported by the case law or statutes of other states. Defendants cite to Lambert v. Wicklund, 520 U.S. 292 (U.S. 1997), in arguing that waiver of notification is somehow equivalent to authorization of the procedure. Lambert v. Wicklund clarified that when a court determines that parental notification is "not in [the child's] best interest", it is equivalent to saying that abortion is in her best interest. Id. However, this reasoning is not on point for the case at hand, where the question is whether there is a provision authorizing consent for the minor. Lambert v. Wicklund was based on the Montana Procedure for judicial waiver of notice, Mont. Code Anno., § 50-20-212. Under the Montana code, "The court shall issue an order authorizing the petitioner to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, that...the notification of a parent or guardian is not in the best interests of the petitioner." Mont. Code Anno., § 50-20-212(5)(b) (emphasis added). Similarly, other cases cited in Lambert v. Wicklund involve statutes that specifically authorize consent for abortion when parental notification is waived (See Ohio Code, ORC Ann. 2151.85, "If the court finds, by clear and convincing evidence...that the notification of the parents, guardian or custodian of the complainant otherwise is not in the best interest of the complainant, the court shall issue an order authorizing the complainant to consent to the performance or inducement of an abortion without the notification of her parents, guardian or custodian," (emphasis added); Massachusetts Code, ALM GL ch. 112, Section 12S, "A judge of the superior court department of the trial court shall, upon petition, or motion, and after an appropriate ...


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