On Application for Stay Pending Appeal.
Before LUTTIG, Circuit Judge.
Injunction stayed by published opinion.
On February 20, 1997, after 18 years of public debate, the Virginia General Assembly passed, by a substantial margin, Virginia's Parental Notice Act, Va. Code Section(s) 16.1-241(V), and on March 22, 1997, Virginia's Governor Allen signed the Act into law. By its terms, the Act was to go into effect at 12:01 Tuesday morning, July 1.
As the title denotes, the Act is a parental notice statute, not a parental consent statute; it prohibits a physician from performing an abortion on an unemancipated minor unless one parent has been notified twenty-four hours in advance of the procedure. The Act also allows notification to be made to a duly appointed legal guardian or custodian of the minor, or one standing in loco parentis to the minor.
The Act expressly excepts from its prohibitions the performance of abortions in circumstances in which the minor seeking the abortion has been the victim of parental abuse or neglect, and circumstances in which either an abortion is immediately necessary to prevent the mother's death or there is insufficient time to permit notification without exposing the minor to serious health risk.
Although the Supreme Court has never held that a parental notification law must include a judicial bypass procedure in order to withstand constitutional challenge, see Lambert v. Wicklund, 117 S. Ct. 1169, 1171 (1997), the Parental Notice Act includes such a judicial bypass procedure. That procedure permits authorization of an abortion without parental notification for a minor who shows that she is mature and capable of giving informed consent and for an immature minor as to whom it is determined that an abortion would be in her best interest.
The Act confers upon every minor who avails herself of the bypass procedure the right to participate in the court proceedings on her own behalf and to have counsel assist her throughout the proceedings. If the minor so requests, the court is obligated to appoint counsel for the purpose of assisting the young woman in the bypass proceedings.
The Act also provides that bypass proceedings, which are to be conducted before the Commonwealth's Juvenile and Domestic Relations District Court, "shall be confidential." And the statute further provides both that judicial bypass proceedings "shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor" and that they "shall be heard as soon as practicable but in no event later than four days after the petition[seeking judicial authorization] is filed."
Finally, insofar as is relevant to the matter sub judice, the Act provides any minor for whom judicial bypass of notification is denied "an expedited confidential appeal to the circuit court."
Notwithstanding the Commonwealth's inclusion of a judicial bypass procedure in its Parental Notification Act and of the other aforementioned safeguards, the federal district court for the Western District of Virginia, only hours before the Act was to become effective, preliminarily enjoined enforcement of the Act by the Commonwealth, holding that a substantial probability exists that the Act is facially unconstitutional. The district court had heard argument on the matter over a month earlier.
At 4:00 p.m. on Monday afternoon, following issuance of the district court's order and the district court's subsequent denial of the Commonwealth's motion for stay of its decision, the Commonwealth filed with me, as a single Circuit Judge, a motion to stay the district court's injunction. At 7:45 p.m. that night, following a review of the parties' submissions before the district court, the district court's opinion, and the applicable Supreme Court precedents, I stayed the judgment of the district court pending appeal.
In my judgment, the district court enjoined enforcement of the Commonwealth's Parental Notification Act as a direct result of a misreading of Supreme Court authority and a concomitant failure to afford the Commonwealth the latitude to interpret its laws in the first instance so as to avoid any possible federal constitutional infirmity, a right to which a State is, with rare exceptions, entitled in our federalist government of shared powers. Moreover, after a careful, independent consideration of the applicable authorities from the Supreme Court of the United States, I could not conclude that plaintiffs had shown a substantial probability that they would prevail on the merits of their facial challenge to the Virginia Act. Nor could I conclude that the relative harms to the respective parties were such as to draw into question my assessment of the appropriateness of the district court's injunction based upon the plaintiffs' likelihood of success on the merits of their claims. For these reasons I issued the stay.
The plaintiffs argued before the district court that the Parental Notification Act fails to ensure that the judicial bypass proceedings will be completed expeditiously and that the minor's interests in confidentiality will be sufficiently protected. The district court, however, expressly rested its decision to enjoin enforcement of the Act upon a conclusion that there was a substantial probability that the plaintiffs would prevail on their third claim: that Virginia's Parental Notification Act, and specifically its judicial bypass procedure, unconstitutionally vests in the judges of the Juvenile and Domestic Relations District Court the discretion to decline to authorize a physician to perform an abortion without parental notification, even after finding that the minor woman is mature and capable of providing informed consent. In enjoining the statute on this ground, the district court relied entirely upon the Supreme Court's decision in Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), reasoning that, in that decision, the Supreme Court set forth the constitutional standards applicable to state parental notification statutes, not merely parental consent statutes. Thus, said the district court, "[t]his court will . . . apply [Planned Parenthood v.] Casey, [505 U.S. 833 (1992)] and Bellotti II to the case at bar. Bellotti II requires that a judicial bypass satisfy four criteria." See Memorandum Op. at 9. And the court went on to examine the judicial bypass provisions of Virginia's parental notification statute under the criteria identified by the Court in Bellotti II as essential for a judicial bypass procedure within a parental consent statute to satisfy the Constitution.
In Bellotti II, the Supreme Court did not address what, if any, judicial bypass procedures are necessary in the context of a parental notification statute, such as Virginia's. At issue in Bellotti II was only whether a state parental consent statute must include a judicial bypass procedure, and, if it must, the requirements for such a procedure under the Constitution. Thus, the Court held in that case:
[I]f the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained. 443 U.S. at 643 (footnote omitted).
The Court then defined the constitutional imperatives for the bypass procedure within parental consent statutes as follows:
A pregnant minor is entitled in such a proceeding to show 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. The proceeding in which this showing is made 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 obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the "absolute, and possibly arbitrary, veto" that was found impermissible in [Planned Parenthood v.] Danforth, [428 U.S. 52, 74 (1976)]. Id. at 643-44 (footnote omitted).
It is clear, therefore, that the Court in Bellotti II did not articulate the constitutional minima for a bypass procedure within a parental notification statute. As the Supreme Court described Bellotti II in Lambert:
In Bellotti, we struck down a statute requiring a minor to obtain the consent of both parents before having an abortion, subject to a judicial bypass provision, because the judicial bypass provision was too restrictive, unconstitutionally burdening a minor's right to an abortion. The Court's principal opinion explained that a constitutional parental consent statute must contain a bypass provision that meets four criteria
. . . . 117 S. Ct. 1169 at 1170-71 (emphasis in original; citation omitted); see also id. at 1171 (criticizing Ninth Circuit for failing to recognize that Bellotti II involved a parental ...