Planned Parenthood v . AG CV-03-491-JD 12/29/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Planned Parenthood of Northern New England, Concord Feminist Health Center, Feminist Health Center of Portsmouth, and Wayne Goldner, M.D. v. Civil N o . 03-491 JD Opinion N o .

Peter Heed, Attorney General of New Hampshire

O R D E R

The plaintiffs bring an action pursuant to

,

seeking to have the Parental Notification Prior to Abortion Act

(“Act”), 1 passed by the New Hampshire legislature, declared

unconstitutional. The plaintiffs also seek an injunction to

prevent enforcement of the Act. The Attorney General contends

that the Act is constitutional and objects to an injunction.

At the plaintiff’s request, this case has been given

expedited consideration by the court in view of the fact that the

Act is due to become effective on December 3 1 , 2003.

1 2003 N.H. Laws ch. 173, effective date, December 3 1 , 2 be codified at N.H. Rev. Stat. Ann. (“RSA”) § 132:24-:28. After carefully reviewing the provisions of the Act and the

applicable United States Supreme Court precedents, the court has

concluded that the Act fails to meet the constitutional

requirements as determined by the United States Supreme Court.

Therefore, the Act cannot be enforced.

Background

In June of 2003, the New Hampshire Senate and House of

Representatives passed “AN ACT requiring parental notification

before abortions may be performed on unemancipated minors.” The

Act defines “abortion” a s : the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove an ectopic pregnancy or the products from a spontaneous miscarriage.

RSA 132:24, I (eff. 12/31/03). The central provision of the Act

is a prohibition on abortion in the absence of parental

notification: No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

2 RSA 132:25, I . Paragraph II requires written notice to be

addressed to the parent at the parent’s “usual place of abode”

and to be “delivered personally by the physician or an agent.”

Paragraph III provides an alternative to allow notice by

certified mail, return receipt requested, with delivery

restricted to the addressee. Notice is not required if the physician “certifies in the

pregnant minor’s medical record that the abortion is necessary to

prevent the minor’s death and there is insufficient time to

provide the required notice; or [ ] [t]he person or persons who

are entitled to notice certify in writing that they have been

notified.” RSA 132:26,I. If the pregnant minor does not want to

notify a parent, she may, alternatively, seek court authorization

for the abortion. RSA 132:26, I I . In that case, the court is

required to hold a hearing and then determine whether “the pregnant minor is mature and capable of giving informed consent

to the proposed abortion” or “whether the performance of an

abortion upon her without notification of her parent, guardian,

or conservator would be in her best interests.” Id. Such court

proceedings “shall be confidential and shall be given such

precedence over other pending matters so that the court may reach

a decision promptly and without delay so as to serve the best

interests of the pregnant minor.” RSA 132:26,II(b).

3 Violation of the Act carries penalties. “Performance of an

abortion in violation of this subdivision shall be a misdemeanor

and shall be grounds for a civil action by a person wrongfully

denied notification.” RSA 132:27. Liability may be avoided if

the person who performed the abortion can establish “by written

evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of

the pregnant minor regarding the information necessary to comply

with this section are bone [sic] fide and true, or if the person

has attempted with reasonable diligence to deliver notice, but

has been unable to do so.” Id.

The plaintiffs simultaneously filed their complaint and a

motion for a preliminary injunction to prevent the Act from being

enforced once it becomes effective on December 3 1 , 2003. The

Attorney General filed an objection, and the plaintiffs filed a reply. No surreply was filed. The parties have agreed that the

court may decide the plaintiffs’ requests for a declaratory

judgment and permanent injunctive relief on the merits based on

their present filings.

4 Discussion

The plaintiffs contend that the Act is unconstitutional

because it lacks an exception to the parental notice requirement

in circumstances when the delay would threaten the health of the

pregnant minor. They also contend that the Act’s exception to

prevent death is unconstitutionally narrow and that the confidentiality requirement for court proceedings is

insufficient. The Attorney General argues that a health

exception is not constitutionally required in a parental

notification law, that either the judicial bypass or other New

Hampshire statutes adequately protect the health of a pregnant

minor, that the Act would not be applied to physicians who act in

good faith, and that the confidentiality provision is sufficient.

I. Declaratory Judgment

Pursuant to

(a), the court “may declare the

rights and other legal relations of any interested party seeking

such declaration, whether or not further relief is or could be

sought.” The plaintiffs seek a declaration that the Act is

unconstitutional on its face.

The parties dispute the appropriate standard for evaluating

a facial challenge to the validity of a state law regulating

abortion. When plaintiffs bring a facial constitutional

5 challenge to state law, they ordinarily must show that “‘no set

of circumstances exists under which the Act would be valid.’”

Pharm. Res. & Mfrs. of Am. v . Concannon,

6 , 77 (1st

Cir. 2001) (quoting United States v . Salerno,

(1987)), aff’d sub nom Pharm. Research & Mfrs. of Am. v . Walsh,

(2003). That high hurdle, however, applies only when the plaintiffs challenge a state law “that does not regulate

constitutionally protected conduct.” Donovan v . City of

Haverhill,

4 , 77 (1st Cir. 2002).

In Casey, the Court considered the facial constitutionality

of a Pennsylvania law that imposed conditions on performing

abortions for both adult and minor patients and, without

mentioning Salerno, applied a standard of whether the challenged

law imposes an “undue burden” or “will operate as a substantial

obstacle to a woman’s choice to undergo an abortion.” Planned Parenthood of Southeastern P a . v . Casey,

, 8 7 4 , 877 &

895 (1992). In Stenberg v . Carhart,

1 4 , 921 (2000),

the Court concluded that a Nebraska abortion statute was

unconstitutional, after applying a three level test, including

the “undue burden” standard, also without mentioning Salerno.

The First Circuit has not addressed the question of whether

the Salerno standard applies in the context of abortion

6 legislation.2 Several other courts have concluded, however, that

Casey and Stenberg provide the governing standard and that the

Salerno standard does not apply. See, e.g., A Woman’s Choice-

East Side Women’s Clinic v . Newman,

8 4 , 687 (7th Cir.

2002), cert. denied A Woman's Choice-East Side Women’s Clinic v .

Brizzi,

(2003); Planned Parenthood of the Rocky

Mts. Servs. v . Owens,

1 0 , 917 (10th Cir. 2002); Planned

Parenthood of Cent. N.J. v . Farmer,

2 7 , 142-43 (3d Cir.

2000); Planned Parenthood of Southern Ariz. v . Lawall,

(9th Cir. 1999), amended on denial of rehear’g,

(9th Cir. 1999); R.I. Med. Soc’y v . Whitehouse,

8 8 , 312-13 (D.R.I. 1999) (citing additional cases).

The Fourth and Fifth Circuits alone have chosen to apply Salerno

in the context of abortion legislation. See Manning v . Hunt,

5 4 , 269 (4th Cir. 1997) (noting circuit split and citing

cases). This court is satisfied that the Casey and Stenberg

standard applies in the context of abortion legislation, as is

well documented by a majority of courts that have considered the

question. Therefore, that standard will be followed in this

2 However, having limited Salerno to cases that do not involve constitutionally protected conduct, it appears likely that the First Circuit would not apply Salerno in cases involving laws restricting access to abortion services. See Donovan, 311 F.3d at 7 7 .

7 case.

The United States Supreme Court decided in 1973 that the

“right of privacy, whether it be founded in the Fourteenth

Amendment’s concept of personal liberty and restrictions upon

state action, as we feel it i s , o r , as the District Court

determined, in the Ninth Amendment’s reservation of rights to the

people, is broad enough to encompass a woman’s decision whether

or not to terminate her pregnancy.” Roe v . Wade,

(1973). In Roe, the Supreme Court held that a Texas criminal

statute which excepted “only a lifesaving procedure on behalf of

the mother, without regard to pregnancy stage and without

recognition of the other interests involved, is violative of the

Due Process Clause of the Fourteenth Amendment.”

.

The Supreme Court has also held that minors, as well as adults,

have a constitutional right to choose an abortion. See Bellotti

v . Baird,

2 2 , 633, 642 (1979); Planned Parenthood of

M o . v . Danforth,

2 , 72-5 (1976). During the three

decades that have passed since Roe v . Wade, the Supreme Court and

lower federal courts and state courts have continued to address

issues arising from the recognition of a woman’s constitutional

right to decide whether to terminate a pregnancy. See, e.g.,

Stenberg,

; Casey,

; Owens, 287

F.3d at 917; Humphreys v . Clinic for Women, Inc.,

8 (Ind. 2003); Simat Corp. v . Ariz. Health Care Cost Containment

Sys.,

(Ariz. 2002).

The right to choose to terminate a pregnancy may be subject

to limitation, the degree of which depends upon the stage of the

pregnancy and the state’s interest both in the health of the

mother and in promoting “the potentiality of human life.” Roe,

. “[B]efore ‘viability . . . the woman has a

right to choose to terminate her pregnancy.’” Stenberg,

(quoting Casey,

)). “‘[A] law designed to

further the State’s interest in fetal life which imposes an undue

burden on the woman’s decision before fetal viability’ is

unconstitutional[,] . . . [and] [a]n ‘undue burden is . . .

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.’”

After viability of the fetus, the state may “‘“regulate, and even

proscribe, abortion except where it is necessary, in appropriate

medical judgment, for the preservation of the life or health of

the mother.”’”

(quoting Casey,

, quoting Roe,

).

The Supreme Court has upheld state laws requiring parental

notification prior to performing abortions on minors. See

Lambert v . Wicklund,

(1997); Casey,

.

9 In Lambert, cited by the Attorney General, the Court rejected the

plaintiff’s argument that the judicial bypass procedure,

incorporated in the state law, was deficient because it required

a showing that parental notification was not in the minor’s best

interests rather than a showing that an abortion without

notification was in her best interest.

. However, the Lambert Court did not consider the issues that have

been raised in this case.

A. Health Exception

In Casey, the Supreme Court considered five provisions of

Pennsylvania law pertaining to abortion.

. One

of those provisions required a minor to obtain the informed

consent of a parent before the procedure but also provided a

judicial bypass option and an exception for a medical emergency.

The plaintiffs challenged the consent provision on the

single ground that it required informed parental consent.

Given the limited challenge and the judicial bypass and emergency

exceptions to the consent requirement, the Court concluded that

the provision passed constitutional muster.

.

The Supreme Court later reiterated and clarified Casey, a

plurality opinion, in Stenberg, stating that “the governing

standard requires an exception ‘where it is necessary, in

10 appropriate medical judgment for the preservation of the life or health of the mother.’”3 Stenberg,

(quoting Casey,

7 9 ) . A health exception is required at any stage of a pregnancy because “a State may promote but not endanger a woman’s health when it regulates the methods of abortion.”

The Tenth Circuit considered the constitutionality of a Colorado parental notification law, which is similar to the New Hampshire Act, under Roe, Casey, and Stenberg. Owens, 287 F.3d at 915-16. The court concluded that because circumstances exist in which a pregnancy complication could seriously threaten a pregnant minor’s health, the Colorado law, which lacked a health exception, would “infringe[] on the ability of pregnant women to protect their health.”4 Id. at 920. The court held that the

3 In addition, the Court noted that a law regulating a woman’s access to abortion which “applies both previability and postviability aggravates the constitutional problem presented. The State’s interest in regulating abortion previability is considerably weaker than postviability.” Stenberg,

. 4 In this case, the parties do not dispute that pregnant minors, subject to the requirements of the Act, could experience complications in their pregnancies that would endanger their health. D r . Wayne Goldner, who is a plaintiff in this case, is an obstetrician and gynecologist practicing in Manchester, New Hampshire, and is board certified by the American Board of Obstetricians and Gynecologists and a fellow in the American College of Obstetricians and Gynecologists. D r . Goldner provided

11 Colorado law was unconstitutional “because it fails to provide a

health exception as required by the Constitution of the United

States.” Id. at 926.

Although the New Hampshire Act includes an exception to the

notification requirement when an abortion is necessary to prevent

the death of a pregnant minor, it does not include an exception

to protect her health short of fatality. Therefore, on its face,

the Act does not comply with the constitutional requirement that

laws restricting a woman’s access to abortion must provide a health exception.5

his declaration that describes medical complications which may occur during pregnancy putting pregnant minors at risk and requiring prompt or immediate termination of the pregnancy. 5 To the extent that the Attorney General argues that a health exception is not constitutionally required in parental notification statutes, despite Stenberg and Casey, that argument lacks merit. Rust v . Sullivan,

(1991), and H.L. v . Matheson,

(1981), cited by the Attorney General, do not support that argument. The Utah statute at issue in Matheson required parental notification “if possible” and was challenged for an unconstitutional violation of the right to privacy, not for lack of a health exception. See

. Rust addressed the constitutionality of a restriction on doctors receiving federal subsidies that precluded advice on abortion as a family planning method.

. The Court upheld the challenged regulations explaining that while abortion could not be counseled as a means of family planning under the regulations, because it was beyond the scope of the funded project, the regulations did not preclude referral of women for abortions for purposes other than family planning, such as in medical emergencies.

.

12 The Attorney General contends that other New Hampshire

statutes would provide adequate protection for a pregnant minor’s

health. The Attorney General cites RSA 153-A:18, which exempts a

health care provider from civil liability for failure to obtain

consent for emergency medical care, and RSA 627:6,VII(b), which

allows certain Department of Corrections medical care providers to use force to provide treatment in an emergency. Those

statutes do not address the need for a health exception in the

Act. RSA 153-A:18 provides only an exemption from civil

liability for lack of consent while the Act requires parental

notification, not consent, prior to medical care and imposes both

criminal and civil liability for violations. RSA 627:6,VII(b)

pertains only to Department of Corrections medical care providers

in unusual circumstances that are irrelevant to the Act.

Therefore, the cited statutes do not provide an alternative health exception that is required for the Act to be

constitutional.

The Attorney General also argues that the judicial bypass

provision of the Act would allow an abortion, without

notification, to protect the health of a pregnant minor. Even

with the provisions for expediting such proceedings, the judicial

bypass process necessarily delays an abortion in a health

13 emergency.6 D r . Goldner states in his declaration, which is not

opposed by the Attorney General, that certain medical conditions

during pregnancy require immediate abortion to protect the health

of the mother and that any delay would jeopardize her health.

The Attorney General has not explained how the judicial bypass

provision would address the need for an immediate abortion to

protect the health of the mother, and the provision on its face

is insufficient to meet such a need. Therefore, the judicial

bypass process does not save the Act from the lack of a

constitutionally required health exception.

B. Death Exception

The plaintiffs contend that the death exception in the Act

is unconstitutionally narrow. The plaintiffs challenge the

condition that the “attending abortion provider certifies in the

pregnant minor’s medical record that the abortion is necessary to

prevent the minor’s death and there is insufficient time to

6 Pertaining to the speed of judicial proceedings under the Act, the judicial bypass provision requires only that those proceedings “shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant minor,” that the court must rule within seven calendar days, that a pregnant minor would have access to the courts twenty-four hours a day and seven days each week, and that appeals would be expedited. RSA 132:26(b) & ( c ) .

14 provide the required notice.” RSA 132:26, I ( a ) . D r . Goldner

states in his declaration, which is unopposed, that physicians

cannot predict the course of medical complications with

sufficient precision to comply with that requirement. In

addition, the plaintiffs argue that abortion may at times not be

the only treatment available, as the use of the limiting word “necessary” implies, but nevertheless would be the safest and

most medically appropriate method to treat the patient’s

condition. Further, the plaintiffs contend that the statute

violates physicians’ due process rights by failing to allow them

to rely on their good faith medical judgment in treating their

patients.

In response, the Attorney General concedes that the death

exception must be construed to include a scienter requirement to

avoid constitutional infirmity. See Colautti v . Franklin,

(1979). The court, however, is not authorized to

construe a state statute to include unwritten limitations “unless

such a construction is reasonable and readily apparent.”

Stenberg,

(internal quotation marks omitted).

The implied scienter requirement suggested by the Attorney

General, that physicians who make a good faith, objectively

reasonable effort to comply with the Act would not be subject to

prosecution, is neither reasonable nor readily apparent from the

15 context of RSA 132:26,I(a). In addition, even if that

construction were appropriate, it would not be likely to save the

death exception since the same language, expressly included in an

abortion statute, has been held by the Sixth Circuit to be

unconstitutionally vague and therefore not a scienter requirement

at all. See, e.g., Women’s Med. Prof’l Corp. v . Voinovich,

8 7 , 203-10 (6th Cir. 1997).

Therefore, the death exception provided in RSA 132:26,I(a)

is unconstitutional.

C. Confidentiality

A judicial bypass procedure, included as part of a parental

notification law, must protect the anonymity of the minor who is

seeking judicial authorization for an abortion. Bellotti, 443

U.S. at 644. Anonymity is required because laws regulating

abortion that “raise the specter of public exposure and

harassment of women who choose to exercise their personal,

intensely private, right, with their physician, to end a

pregnancy . . . pose an unacceptable danger of deterring the

exercise of that right, and must be invalidated.” Thornburgh v .

Am. Coll. of Obstetricians & Gynecologists,

4 7 , 767

(1986), overruled on other grounds by Casey,

. In

this context, “[c]onfidentiality differs from anonymity, but we

16 do not believe that the distinction has constitutional

significance.” Ohio v . Akron Ctr. for Reprod. Health,

(1990). The Supreme Court, however, has “refuse[d] to

base a decision on the facial validity of a statute on the mere

possibility of unauthorized, illegal disclosure by state

employees.”

RSA 132:26, II(b) provides only that court proceedings under

that chapter “shall be confidential.” The plaintiffs argue that

the lack of specificity makes the statute insufficient to comply

with the constitutionally mandated confidentiality requirement.

The Attorney General defends the confidentiality provision,

contending that it is constitutionally sufficient.

As might be expected, courts applying Bellotti and Akron

have come to differing conclusions about the sufficiency of

confidentiality provisions in similar contexts. See, e.g., Planned Parenthood of S . Ariz. v . Lawall,

, 787-89

(9th Cir. 2002); Planned Parenthood of the Blue Ridge v . Camblos,

5 2 , 379-80 (4th Cir. 1998). The confidentiality

requirement in the New Hampshire Act does raise a constitutional

question. However, in view of the fact that the Act is otherwise

unconstitutional, the court declines to rule on the facial

validity of the confidentiality provision at this time.

17 D. Severability

The Attorney General contends that if the court were to find

parts of the Act unconstitutional, then the severability

provision of the Act, RSA 132:28, should be invoked and the

unconstitutional parts of the Act should be severed from the

remainder. The lack of a health exception renders the entire Act unconstitutional and, therefore, severing parts would not remedy

that deficiency. Similarly, severing the constitutionally

deficient death exception from the remainder of the Act would add

to its infirmity, due to the complete absence of a death

exception to the parental notification requirement. Therefore,

the severability clause is of no use in these circumstances.

E. Declaratory Judgment

For the foregoing reasons, the Act, to be codified at RSA

132:24 through RSA 132:28, is declared to be unconstitutional.

II. Injunction

The plaintiffs seek an injunction to prevent enforcement of

the Act upon its effective date, December 3 1 , 2003, and

thereafter. The Attorney General opposes an injunction.

“In order to issue a permanent injunction, a district court

typically must find that (1) the plaintiff has demonstrated

18 actual success on the merits of its claims; (2) the plaintiff

would be irreparably injured in the absence of injunctive relief;

(3) the harm to the plaintiff from defendant’s conduct would

exceed the harm to the defendant accruing from the issuance of an

injunction; and (4) the public interest would not be adversely

affected by an injunction.” United States v . Mass. Water Res. Auth.,

6 , 51 n.15 (1st Cir. 2001). Here, the

plaintiffs have demonstrated actual success by showing that the

Act is unconstitutional, entitling them to a declaratory

judgment. In the particular circumstances of a case challenging

the constitutionality of abortion legislation, “a conclusion that

a particular requirement is probably unconstitutional necessarily

entails a decision as to the other preliminary injunction

criteria as well.” Planned Parenthood League of Mass. v .

Bellotti,

(1st Cir. 1981). The same is true in the context of a permanent injunction.

Denying the requested injunction to bar enforcement of the

Act “may result in other women not having abortions that they

would otherwise have had” but for the unconstitutional Act.

Dr. Goldner states in his declaration that the lack of a health

exception and the narrow death exception put pregnant minors at

substantial risk if the Act were enforced. The balance between

the state’s interest in “the potentiality of human life” and the

19 plaintiffs’ interest in protecting the health of pregnant minors

must necessarily be struck in favor of the plaintiffs. See

Stenberg,

. Although an injunction would

negatively affect the benefits of involving parents in a pregnant

minor’s decision whether or not to terminate her pregnancy, the

public interest in the health of pregnant minors under emergency circumstances would be protected by an injunction. Therefore, on

balance, a permanent injunction against enforcement of the Act is

appropriate in this case.

Conclusion

For the foregoing reasons, the plaintiffs’ motion for an

injunction (document n o . 6 ) is subsumed into the plaintiffs’

request for a permanent injunction, which is granted. The

plaintiffs’ request in the complaint for a declaratory judgment

is also granted. The Parental Notification Prior to Abortion

Act, 2003 N.H. Laws ch. 173, effective date, December 3 1 , 2003,

to be codified at RSA 132:24-:28, is unconstitutional for the

reasons previously stated.

20 Injunction Order

The Attorney General of the State of New Hampshire, and

those acting pursuant to and under his direction and authority,

are hereby enjoined from enforcing the Parental Notification

Prior to Abortion Act, 2003 N.H. Laws ch. 173, to be codified at

RSA 132:24-28, on its effective date or at any time thereafter.

The clerk of court shall enter judgment accordingly.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge December 2 9 , 2003 cc: Jennifer Dalven, Esquire Martin P. Honigberg, Esquire Dara Klassel, Esquire Daniel J. Mullen, Esquire Lawrence A . Vogelman, Esquire

21