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Reproductive Health Services v. Marshall

United States District Court, M.D. Alabama, Northern Division

July 28, 2017

REPRODUCTIVE HEALTH SERVICES, on behalf of its patients, physicians and staff,, Plaintiffs,
STEVEN T. MARSHALL, in his official capacity as Attorney General of the State of Alabama,, Defendants.


          Susan Russ Walker United States Magistrate Judge

         This matter is before the court on the parties' cross motions for judgment on the pleadings.

         I. Introduction

         On September 2, 2016, the court determined that a justiciable controversy exists in this case with respect to plaintiffs' challenges to the State of Alabama's parental consent and judicial bypass statutes (“the Act”), which were substantially amended in 2014. See Reproductive Health Services v. Strange, 204 F.Supp.3d 1300 (M.D. Ala. 2016) (“RHS I ”);[2] see also Ala. Code §§ 26-21-1, et seq.; H.B. 494, 2014 Leg. Sess. (Ala. 2014) (enacted; effective July 1, 2014); Ala. Code § 26-21-4 (judicial bypass provision). The court subsequently held a status conference, during which the parties agreed that the plaintiffs' claims and defendants' defenses are exclusively matters of law to be decided without the need for an evidentiary record. See, e.g., Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476, 491 (1983) (the Bellotti II analysis is “one purely of statutory construction.”). Following the status conference, the court set a deadline for the parties to file any motions for judgment on the pleadings, and plaintiffs and defendants respectively filed such motions pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 60, 63).

         The parties all argue that a declaratory judgment is due to be entered as to all of plaintiffs' claims. Specifically, the plaintiffs and defendants each seek a declaratory judgment as to the constitutionality of the following provisions of the Act in light of the Supreme Court's plurality opinion in Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti II”) and its progeny: Alabama Code §§ 26-21-4(a), (c), (f), (e), (i), (j), (k), (1) and (n).[3] (Doc. 1; Count I). Moreover, all parties request a declaratory judgment regarding plaintiffs' claim that the Act violates a minor petitioner's “right to liberty and privacy as guaranteed by the due process clause of the Fourteenth Amendment ... by permitting” disclosure of “deeply sensitive, private information about the minor to others, including to any potential witnesses.” (Doc. 1 at 13; Count II) (“informational privacy claim”). In addition, the plaintiffs claim that certain provisions of the Act violate out-of-state minors' rights to travel and to equal protection under the law, but all parties are in agreement regarding the correct interpretation of the challenged provisions. (Doc. 1; Counts III, IV). Plaintiffs also move for preliminary injunctive relief and a permanent injunction prohibiting enforcement of the challenged provisions of the Act. (Doc. 1, 2). These motions and issues have been fully briefed and are ripe for decision.

         Under Bellotti II, plaintiffs claim that the State of Alabama has created an unconstitutional judicial bypass option for minors who seek an abortion without the consent of a parent or legal guardian. Specifically, the plaintiffs contend that the addition of a district attorney (“DA”), a guardian ad litem on behalf of the fetus (“GAL”), and - under some circumstances - the minor petitioner's parent, parents or legal guardian as parties to the bypass proceeding causes that proceeding no longer to afford the minor the constitutionally guaranteed option of an anonymous and expeditious bypass. Also, plaintiffs argue that certain provisions of the Act allowing subpoenas to issue for the presence of witnesses violate a minor petitioner's right to anonymity, and that the Act permits discretionary delays in the resolution of the petition such that the bypass process lacks the requisite expedition to satisfy the Supreme Court's mandates in Bellotti II. In addition, the plaintiffs maintain that the Act “unconstitutionally transforms the bypass from an ex parte hearing into an adversarial” proceeding. (Doc. 61 at 11). For their part, defendants zealously defend the constitutionality of the Act.

         The court finds that neither plaintiffs nor defendants are precisely correct in their interpretations of the Act; however, based upon nearly four decades of binding Supreme Court precedent, certain provisions of the Act undoubtedly fail on a facial challenge to their constitutionality. See n. 3, supra. As explained more fully below, the offending portions of the Act are severable, and a declaration of their unconstitutionality will still leave Alabama with a constitutional bypass option, something that the Alabama Legislature clearly intended to achieve when it amended the Act in 2014. See Ala. Code §§ 26-21-1, 26-21-4.

         Defendants, however, are entitled to judgment as a matter of law as to plaintiffs' informational privacy claim. Plaintiffs' claims regarding the rights of out-of-state minors no longer present an actual controversy for this court to decide.

         II. Standard of review - motion for judgment on the pleadings

         The Federal Rules of Civil Procedure provide that, “[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A judgment on the pleadings is limited to consideration of “the substance of the pleadings and any judicially noticed facts.” Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998).

         In evaluating a motion for judgment on the pleadings, the court must review the in factual allegations in the light most favorable to the nonmovg party.[4] Cannon v. City o W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). However, the court need not credit a nonmoving party's legal contentions. See Green Leaf Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d 1292, 1304 n.12 (11th Cir. 2003) (citing Honduras Aircraft Registry, Ltd. v. Government of Honduras, 129 F.3d 543, 545 (11th Cir. 1997)).

         A judgment on the pleadings pursuant to Rule 12(c) is appropriate when “no issues of material fact exist, and the movant is entitled to judgment as a matter of law[, ]” Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996), or when “the complaint lacks sufficient factual matter to state a facially plausible claim for relief that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.” Jiles v. United Parcel Serv., Inc., 413 F. App'x. 173, 174 (11th Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

         III. Discussion

         A. Alabama's parental consent and judicial bypass laws

         Alabama law mandates that “no physician shall perform an abortion upon an unemancipated minor unless the physician or his or her agents first obtain the written consent of either parent or the legal guardian of the minor.” Ala. Code § 26-21-3(a). There are limited exceptions to the parental consent requirement, one of which is the judicial bypass exception. See id.; Ala. Code § 26-21-4. As a matter of law, states that have parental consent statutes must also enact a law that allows a minor to obtain a court order to bypass her parent's or guardian's consent. See Bellotti II, 443 U.S. at 649. In RHS I, the court summarized the pertinent provisions of Alabama's judicial bypass law as follows.

         Prior to the 2014 amendments, Alabama's judicial bypass statute allowed for an ex parte hearing which included as participants, in almost all instances, only the judge, the minor applicant, and her attorney. The new Act substantially alters the former bypass scheme; it is allegedly unique among all other states' judicial bypass laws. (Doc. 3 at 8).

Under Alabama's former judicial bypass law, which was enacted in 1987 and remained substantively unchanged for 27 years, the only necessary party to the bypass proceedings identified by statute was the minor petitioner. See Ala. Code 26-21-4 (2013). At his or her discretion, the presiding judge also could use a provision of the Alabama Rules of Civil procedure to appoint a guardian ad litem (“GAL”) to represent the interests of the “infant unborn, ” but the judicial bypass law did not independently permit the appointment of a GAL or vest that person with the same rights as a party to the bypass proceedings. See Ala. R. Civ. P. 17(c); cf. Ala. Code § 26-21-4 (2013), Ala. Code § 26-21-4. A minor petitioner was entitled to a decision from the reviewing court within 72 hours after filing her petition, excluding Saturdays, Sundays and legal holidays, unless the petitioner requested an extension of time and the court permitted the delay. See Ala. Code § 26-21-4(e) (2013). The minor was the only person with standing to appeal the decision of the reviewing judge. Ala. Code § 26-21-4(h) (2013). “If notice of appeal [were] given, the record of appeal [was to] be completed and the appeal [was to be] perfected within five days from the filing of the notice of appeal.” Id.
The 2014 Act expands the number of potential parties to a judicial bypass proceeding, and makes the inclusion of some of those parties mandatory. See Ala. Code § 26-21-4. Those additional parties are either required or permitted to “examine” the petitioner and to represent interests in addition to those of the petitioner, including the interests of the State of Alabama, the unborn child, and the minor's parent(s) or legal guardian. See id. For example, when a minor files a judicial bypass petition, the court now must immediately notify the district attorney (“DA”) of the county in which the petition is filed or in which the petitioner resides, and the DA is then automatically joined as a necessary party to the bypass proceedings. Ala. Code § 26-21-4(i). The 2014 Act also allows the minor's parent(s) or legal guardian to be joined as parties if those individuals learn of the existence of the proceedings. Ala. Code § 26-21-4(1). The new law contains a statutory provision independent of Alabama Rule of Civil Procedure 17(c) which allows the reviewing court to appoint a GAL to represent “the interests of the unborn child[.]” Ala. Code § 26-21-4(j). The powers of the GAL are expansive, and that person also is joined as a party once appointed by the court. Id.
In addition, the 2014 Act codifies the rights and obligations of the DA, GAL, and the parent(s) or legal guardian in their capacities as parties. The DA and the GAL are statutorily mandated to “participate as [advocates] for the state to examine the petitioner and any witnesses[.]” Ala. Code § 26-21-4(i), (j). Alabama's interests, as explained by the Act, include “protecting minors from their own immaturity” and “protect[ing] the state's public policy to protect unborn life[.]” Ala. Code § 26-21-1(d). The minor's parents, once joined as parties, have the same rights as the DA, GAL, and the minor petitioner. See Ala. Code § 26-21-4(1). All parties may be represented by an attorney, appeal the hearing judge's decision, request extensions of time, and have access to subpoena powers to compel witnesses to testify.
Moreover, the 2014 Act replaces the requirement in the former law that the hearing judge must issue a decision within 72 hours and the appeal must be “perfected” within five days. Ala. Code § 26-21-4(h) (2013). The law permits discretionary delays by the reviewing judge, either sua sponte or upon request by any party, “subject to the time constraints of the petitioner related to her medical condition.” Ala. Code § 26-21-4(k).

RHS I, 204 F.Supp.3d at 1307-08.

         B. The plaintiffs' Bellotti II challenges to the Act

         The legal framework that applies to the substance of plaintiffs' Bellotti II claim begins with the well-established right of a minor to obtain an abortion of a non-viable fetus. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti II, 443 U.S. 622.

The Constitution protects a woman's right to terminate her pregnancy. This right, derived from the Due Process Clause of the Fourteenth Amendment, was reaffirmed by the U.S. Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), which left intact the essential holding of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). This right is not limitless, however; the State has legitimate interests in protecting the health of the woman and the potential life of a fetus. Accordingly, the Court in Casey developed a standard to distinguish between lawful state regulation of abortion and regulation that violates due process. The Court held that when a regulation imposes a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, ” it unduly burdens the right to choose abortion. Id. at 877, 112 S.Ct. 2791. And “where state regulation imposes an undue burden ... the power of the State reach[es] into the heart of the liberty protected by the Due Process Clause.” Id. at 874, 112 S.Ct. 2791. Thus, even “a statute which ... further[s] the interest in potential life or some other valid state interest, ” but “has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.” Id. at 877, 112 S.Ct. 2791. On the other hand, “reasonable measures” regulating abortion - even those that pose incidental inconvenience - are valid so long as they do not create a substantial obstacle to a woman's exercise of her due process right. Id. at 883, 112 S.Ct. 2791.

Planned Parenthood Southeast v. Bentley, 951 F.Supp.2d 1280, 1285 (M.D. Ala. 2013) (footnote omitted). “The rule announced in Casey … requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Whole Woman's Health v. Hellerstedt, __ U.S. __, 136 S.Ct. 2292, 2309 (2016), as revised (June 27, 2016).

         The application of the Bellotti II criteria to the Act is a matter of “purely … statutory construction, ” Ashcroft, 462 U.S. at 491, and the court must “measur[e] [the Act's] challenged provisions against [the] [Bellotti II] requirements.” RHS I, 204 F.Supp.3d at 1326 & n.19 (citing Bellotti II, 443 U.S. at 623-51; Planned Parenthood Ass'n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1475-82 (11th Cir. 1991)).

“Where fairly possible, courts should construe a statute to avoid a danger of unconstitutionality.” Ashcroft, 462 U.S. at 493, 103 S.Ct. 2517. Because this case is before the court on a Rule [12(c) motion for judgment on the pleadings] and the plaintiffs allege that the Act places unconstitutional barriers in a pregnant minor's path to an abortion through a judicial bypass, the defendants bear the burden to establish the Act's constitutionality. See [Hodgson v. Minnesota, 497 U.S. 417, 436 (1990)] (ruling on the constitutionality of a Minnesota parental consent law). “Under any analysis, the [Alabama] statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests.” Id. (citations omitted).

Id. at 1333.

         In considering a facial challenge to the Act, the court will assume, as it must, that bypass courts in Alabama will comply with the Act's provisions. See Miller, 934 F.2d at 1479 (the district court erred by failing to accept, absent evidence to the contrary, that bypass courts would “observe” the mandates of Georgia's judicial bypass law, including the confidentiality requirements).

         The judicial bypass requirements espoused in Bellotti II are “strict standards.” Id. at 1475. “Under Bellotti, a pregnant minor is entitled to show the court either: ‘(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.'” Id. (quoting Bellotti II, 443 U.S. at 643-44 (footnote omitted)). Once the minor makes either showing, the bypass petition must be granted. Id. The Bellotti II requirements, as summarized by the Supreme Court, consist of four factors that a judicial bypass law must satisfy to pass constitutional muster: (1) the bypass procedure must afford the minor an opportunity to demonstrate that she is sufficiently mature to make an informed decision to have an abortion “without regard to her parents' wishes”; (2) the abortion procedure must be authorized if the court finds that, despite a minor's inability to reach an abortion decision “by herself[, ]” “the abortion is in the minor's best interests and in cases where the minor has shown a pattern of physical, sexual, or emotional abuse”; (3) the bypass procedure must insure the minor s anonymity;[5] and (4) the bypass exception must allow the minor a court to conduct proceedings with the expediency necessary “to allow an effective opportunity to obtain the abortion.” Akron II, 497 U.S. at 511-13 (Kennedy, J.); see also Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (setting out the four factors); Bellotti II, 443 U.S. at 643. “Otherwise, the attendant bypass procedure is constitutionally invalid.” Cincinnati Women's Services, Inc. v. Taft, 468 F.3d 361, 369 (6th Cir. 2006).

         The Bellotti II requirements must be considered in the context of the facial challenge brought by the plaintiffs. For the reasons explained in RHS I, “an abortion law is facially unconstitutional if it places an ‘undue burden' in the path of a ‘large fraction' of the women the law affects.” 204 F.Supp.3d at 1333 (citing Casey, 505 U.S. at 895). Stated another way, the Act is unduly burdensome and therefore unconstitutional if, for a “large fraction” of affected minors seeking abortions under the Act's judicial bypass scheme, the challenged provisions of the Act “operate as a substantial obstacle to a woman's choice to undergo an abortion.” Casey, 505 U.S. at 895.[6] “A burden may be ‘undue' either because the burden is too severe or because it lacks a legitimate, rational justification.” Id. at 920 (Stevens, J., concurring in part and dissenting in part).

         “Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.” Id. at 894. “The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id. For example, in Casey, the law at issue affected fewer than one percent of women seeking abortions. Id. However, the Court's principal opinion found that the facial challenge “analysis does not end with the one percent of women upon whom the statute operates; it begins there.” Id. Identifying the universe of affected individuals is the proper way to begin a facial challenge analysis.

         Moreover, “Casey teaches that the court need not find that a law imposes an undue burden on a precise percentage of impacted women in order [to] find that facial relief is warranted facial invalidation.” Planned Parenthood Southeast, Inc. v. Strange, 172 F.Supp.3d 1275, 1288 (M.D. Ala. 2016), judgment entered, 2016 WL 1178658 (M.D. Ala. 2016) (“Strange II”). The plurality decision in Casey found that the challenged Pennsylvania statute “would affect a significant number of women, without quantifying further.” Id. (citing Casey, 505 U.S. at 888-94) (emphasis in original). Therefore, to determine the Act's constitutionality on a facial challenge in terms of the “undue burden” analysis under Casey, “the court must define the group of [minors] for whom the challenged law[s] [are] relevant and then assess whether the law[s] will create a substantial obstacle to obtaining an abortion for a significant number of the [minors] in that group.” Strange II, 172 F.Supp.3d at 1288. The Supreme Court recently reaffirmed that

Casey used the language “large fraction” to refer to “a large fraction of cases in which [the provision at issue] is relevant, ” a class narrower than “all women, ” “pregnant women, ” or even ‘the class of women seeking abortions identified by the State.” . . . Here, as in Casey, the relevant group is “those [women] for whom [the provision] is an actual rather than an irrelevant restriction.”

Hellerstedt, 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 894-95) (alterations in original). To succeed on a facial challenge to the Act by way of a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings, the plaintiffs must identify material allegations from the complaint “to support a logical deduction that a significant number of women would face an undue burden” because of the Act. Strange II, 172 F.Supp.3d at 1288; see also Fed. R. Civ. P. 12(c).

         Accordingly, the relevant group of affected minors for each challenged provision of the Act is necessarily dependent upon the challenged provision's language, as the court must consider the statute in light of those minors for whom the various challenged provisions are “actual rather than irrelevant.” Hellerstedt, 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 894-95). In other words, to render a challenged provision “relevant, ” the court defines the affected group as those minors who are subject to the provision's triggering event. For example, where the Act grants a judge discretion pursuant to Alabama Code § 26-21-4(j) to take an action allowed by the statute - i.e., appointing a GAL to represent the interests of the unborn child in the bypass proceedings - the affected group with respect to this section is all minor petitioners in whose bypass proceedings the court appoints a GAL for the fetus.[7] Any other group includes those for whom the statute is irrelevant. As with the GAL provision, all challenged provisions of the Act must be read in a manner to include only those minors for whom the provision is relevant.

         The court is mindful that, in applying Casey's undue burden test, it must “consider the burdens a law imposes on abortion access together with the benefits those laws confer, ” as noted above. Hellerstedt, 136 S.Ct. at 2309. Because this case is before the court on a facial constitutional challenge and on the parties' motions for judgment on the pleadings, the court must glean the benefits of the Act from the Legislature's findings regarding the State interests that the Act seeks to advance.[8] According to the Act, the purposes of the legislation are both “to … establish and protect the rights of the minor mother” and “to protect the state's public policy to protect unborn life” - and, specifically, to do so, “in part, by requiring judges to make determinations pursuant to the judicial by-pass procedure and [by requiring] judges [to] be provided with sufficient evidence and information upon which they may make informed and proper decisions.” Ala. Code § 26-21-1(d). See also Ala. Code § 26-21-1(c) (finding it “necessary that the Alabama courts be provided guidance in determining appropriate procedure and evidence.”); Ala. Code § 26-21-1(f) (“the Legislature's intent is to provide guidance and assistance to minors who find themselves in the unfortunate position of having to make such decisions and to courts who must act in the place of parents in providing an alternative by-pass mode for decision making.”); Ala. Code § 26-21-1(e) (“it is always the Legislature's intent to provide guidance to the Alabama courts on how life may be best protected.”). The Act also affirms the State's interest in enacting a constitutional bypass procedure. See Ala. Code § 26-21-1(c) (“The Legislature enacts a judicial by-pass procedure for the purposes of meeting the Constitutional standard … .”); Ala. Code § 26-21-1(f) (“It is not the Legislature's intent to place an undue burden on the minor's otherwise legal right to make a decision on whether to obtain an abortion of her unborn child … .”).[9] The court addresses the benefits of the Act, as described by the Legislature, infra.

         The court is also mindful, in considering the State interests articulated by the Legislature, that even if those interests are legitimate, the means chosen to further such interests are not constitutionally permissible if they place a substantial obstacle in the path of a woman's choice. Casey, 505 U.S. at 877 (“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.”). Indeed, the undue burden test itself embodies a balance between competing interests; it was expressly framed by the Supreme Court to accommodate the State's interest in protecting unborn life while also protecting a woman's right to choose. Id. at 878 (“To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”); see also id. at 876 (“In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.”).

         Thus, while the State's legitimate interests and the Act's benefits are considered by the court below, these are not alone dispositive - a statute that restricts abortion access and that is justified by a legitimate State interest will fail constitutional scrutiny if it poses a “substantial obstacle” to a minor's liberty interest in reaching an abortion decision through a judicial bypass. Casey, 505 U.S. at 877. “Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.” Id. at 874 (citations omitted).

         With the foregoing in mind, the court turns to the merits of the motions for judgment on the pleadings as to plaintiffs' Bellotti II claims.

         1. Parental Involvement as Parties to the Bypass - Alabama Code § 26-21-4(1)

         The Act provides a mechanism for a minor petitioner's parent, parents or legal guardian to participate as parties to the bypass proceeding.

Although the court shall not be required or permitted to contact the minor's parent, parents, or legal guardian, in the event that the minor's parent, parents, or legal guardian are otherwise aware of the by-pass proceeding, they, he, or she shall be given notice of and be permitted to participate in the proceeding and be represented by counsel with all of the rights and obligations of any party to the proceeding.

Ala. Code § 26-21-4(1).[10]

         The controlling opinion in Bellotti II is clear that “every pregnant minor is entitled in the first instance to go directly to the court for a judicial determination without prior parental notice, consultation, or consent[.]” Bellotti II, 443 U.S. at 649. As the Court noted, ‘“there are parents who would obstruct, and perhaps altogether prevent, the minor's right to go to court.' … There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion and their access to court.” Id. at 647 (citation omitted). See also Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983) (“Unemancipated minors are fundamentally different from adults because they are financially dependent upon their parents and have numerous legal incapacities. In addition, parents have considerable leeway to impose punishment upon their children for disobedience. Because of this, minors often have no choice but to comply with parental directives.).[11] The requirement of the Act that parents who become aware of a judicial bypass proceeding be given formal notice of that proceeding, and permitted to participate in it and be represented by counsel as parties, facilitates and, indeed, invites such obstruction, and oversteps the bounds of parental involvement set by Bellotti II.

         Those bounds are clearly drawn. If a minor “satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent.” Id. If the minor “fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests.” Id. at 647-8. “If, all things considered, the court determines that an abortion is in the minor's best interests, she is entitled to court authorization without any parental involvement.” Id. at 648. Only if the court concludes that an immature minor's best interests would be served by denial of the abortion request may the court choose to defer decision until there is parental consultation, in which the court may participate. Id. As the Bellotti II Court was at pains to emphasize, “this is the full extent to which parental involvement may be required.” Bellotti II, 443 U.S. at 648; see also Akron II, 497 U.S at 511 (a minor petitioner is entitled to show that she is sufficiently mature and informed to make an abortion decision “without regard to her parents' wishes”); Zbaraz v. Hartigan, 763 F.2d 1532, 1536 (7th Cir. 1985), aff'd, 484 U.S. 171 (1987) (“[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.”) (citing Matheson, 450 U.S. at 420 (Powell, J., concurring); Bellotti II, 443 U.S. at 647).

         Accordingly, “every minor must have the opportunity - if she so desires - to go directly to a court without first consulting or notifying her parents.” Bellotti II, 443 U.S. at 647. The minor is not only protected from parental knowledge of her bypass proceeding, it is also “‘parental involvement' that an emancipated or mature minor must have an opportunity to avoid.” Pearson, 716 F.2d at 1132 (7th Cir. 1983) (citing Akron I, 462 U.S. at 427, n. 10). As the Bellotti II Court made clear, “‘[t]he abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.” Id. at 642. “[P]articular sensitivity” is critical because “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible”; “considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.” Id.

         By providing a statutory mechanism for some parents or legal guardians to participate as parties to the bypass proceeding - and also to appeal any decision by the bypass court, see Ala. Code § 26-21-4(n) - the Act eviscerates the judicial bypass mandate of Bellotti II as to the minors affected. Thus, § 26-21-4(1) violates both a minor petitioner's procedural and substantive due process rights to access to a constitutional judicial bypass of Alabama's parental consent law, and it unduly burdens her liberty interests. Under the strict guidelines of Bellotti ...

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