Cincinnati Women's Services, Inc. v. Taft

(2) blе, McBurroughs’ testimony; provided it considering their friendship with both evidence, only semblance of motive as Petitioner and the victim. The prosecu- testified that Simpson Petitioner was an- tion would have been left with the uncor- victim, kill gry and threatened to even roborated testimony of McBurroughs and though Petitioner and the victim were testimony brother, of the victim’s who and friends no other witness was able to identify shooter, could not even against testify any problems as to between Peti- Petitioner’s witnesses, three alibi who (3) victim; tioner and the it provided the would have testified that Petitioner could only premedita- evidence of the element of not have committed the crime. The differ- (4) murder; degree tion under first and ence between the case that was and the was identity, Simpson evidence of as iden- case that should have been is undeniable. tified Petitioner as threatening to kill the We therefore hold that Petitioner received victim, fatally and the victim was shot ineffective assistance of counsel. shortly McBurroughs’ therеafter. testi- mony Simpson’s testimony and were the III. CONCLUSION case, twin pillars prosecution’s and For foregoing reasons, we RE- testimony of one bolstered the testimo- VERSE the order of the district court and ny Consequently, of the other. but for GRANT the for writ of habeas O’Connell’s to challenge Simpson’s failure corpus. The district court shall enter an Williams, testimony via there is a reason- requiring order Petitioner to be released probability able of a different outcome for from custody unless the State of Michigan Petitioner’s case. commences a new trial within days determining prejudice, When the Court the district court’s order. must consider the errors counsel in total, against totality of the evidence in Strickland,

the case. See 695- (“In 104 S.Ct. 2052 making preju- [the determination,

dice] a court hearing an

ineffectiveness claim must consider the to-

tality of the evidence before judge SERVICES, CINCINNATI WOMEN’S jury.... Taking INC.; findings Bowers, Dr., unaffected Walter a given, taking due account of the Plaintiffs-Appellants, effect of the errors on the remaining find- ings, making prejudice a court inquiry TAFT, Ohio; Betty Robert Governor of if must ask the defendant has met the Montgomery, Attorney General; D. showing burden of the decision Joseрh Deters; Allen; Michael K. Jim reached reasonably likely have been Petro, Defendants-Appellees. errors.”). different absent the in- case, stant provided had O’Connell effec- No. 05-4174. assistance, tive Williams would have se- Appeals, United States Court of verely testimony undercut the of Simpson, Sixth Circuit. and Williams would have been credible witness, considering that he was friends Argued: Feb. 2006. with both Petitioner and the victim. Decided and Filed: Nov. Moreover, Hill and Foster would have bol- viability stered the of Petitioner’s alibi de-

fense, they too would have been credi- Alphonse Gerhardstein,

ARGUED: A. Branch, Cincinnati, Ohio, Gerhardstein & for Appellants. Diane Brey, Richards Of- Attorney Ohio, fice of the General of Co- lumbus, Ohio, Appellees. for ON BRIEF: Alphonse Gerhardstein, A. Jennifer L. Branch, Branch, Gerhardstein & Cincinna- ti, Ohio, Friedman, David A. Fernandez Son, Friedman Grossman Kohn & Louis- ville, Kentucky, Appellants. Diane Brey, Stephen Richards P. Carney, Doug- Cole, las R. Office of Attorney General Ohio, Columbus, Ohio, Berry Anne Strait, Tracy Greuel, M. Office of the At- General, torney Section, Charitable Law Columbus, Ohio, for Appellees. COLE, GIBBONS, Before ROGERS, Judges. Circuit COLE, J., opinion delivered the of the court, GIBBONS, jоined. in which J. ROGERS, 374-78), (pp. J. delivered a separate concurring opinion.

OPINION COLE, JR., R. Judge. GUY Circuit attack, In this facial constitutional Plain- tiffs-Appellants Cincinnati Women’s Ser- (“CWS”) Bowers, vices and Dr. Walter director, appeal CWS’s medical the district judgment upholding provisions court’s two of Ohio House Bill law enacted Assembly the Ohio General in 1998 con- cerning regulation of abortions. The provisions first of these limits minors seek- judicial bypass of the statutory pa- requirement petition rental-consent to one Rule”). per pregnancy (“Single-Petition challenged The second provision requires attend, seeking abortions to purposes, in-person informed-consent meeting physician twenty- with a at least prior receiving four hours the abortion (“In-Person Rule”). Following a bench trial, granted judgment the district court in favor of the Defendants. or we RE- whether have abortion” following gently reasons

For in the best interests that “the judgment that the district court’s VERSE- is. 2919.121(C)(3). § Id. of the minor.” constitutionally Single-Petition Rule provides Single-Petition further conclude that the valid and juvenile jurisdiсtion court have shall “[n]o the remainder Rule is severable from concerning the same to rehear Further, AFFIRM the we the statute. juvenile grant- has once court pregnancy In-Per- judgment that the district court’s petition.” denied ed and RE- constitutionally valid son Rule is 2919.121(C)(4). § consistent further proceedings MAND for opinion. with this probable evaluating impact Rule, court the district

Single-Petition Background I. judicial occur bypasses that “[m]ost found pregnan- in the first trimester of a minor’s Background A. Factual — -, cy.” Taft, F.Supp.2d at 1998, Assembly the Ohio General 23015, The dis- Dist. LEXIS at *27. to changes various made substantive have trict court also found that “there abortion, two of regulating law Ohio’s that a apparent when it been times was Single- are at issue in this case: the denied the minor bypass was because Rule and In-Person Rule. See Petition by oversight adequately to discuss failed Taft, No. Cincinnati Women’s Servs. easily minor facts that the knew or could — 1:98-CV-289, -, -, F.Supp.2d at-, LEX- Id. Dist. learn.” 2005 U.S. 2206219, Dist. LEXIS WL 23015, witness, part-time *28. One IS at (S.D.Ohio 2005). Sept. at *1-*2 Cuyahoga County in the Juve- magistrate Cleveland, nile Court testified impose any Ohio law did Until minor’s he has such situations advised upon of times a restrictions the number attorney bypass petition to file another judicial minor woman could petition pregnancy. at-- during the same Id. prior bypass parental-notification -, 2005 U.S. Dist. LEXIS amendments, however, in rule. The 1998 *27-*28. Rule, which lim cluded the per the number of pregnancy its to once also statutory The 1998 amendment n may judicial minor times a seek law prior by requiring modifies parental in lieu of consent. Ohio in-person seeking abortions attend any it a misdemeanor and a tort for makes meeting physician for informed- with an un person perform an abortion on purposes. consent See Rev.Code Ohio attending minor emancipated (2005). unless the 2317.56(B)(1) meeting § “The has in physician “secured the written facility where the need not occur par and one induced, formed consent the minor performed abortion is to be or ent, or Ohio Rev. guardian, custodian.” meeting in the physician and the involved (2005).1 2919.121(B)(1) § The statu facility Code or need not be affiliated with that tory permits a minor woman physician amendment who is scheduled with juvenile judicial Al- court for a or induce Id. perform the abortion.” parental prior regulation if “the court re- though consent Ohio’s sufficiently that the minor mature informed a woman quired finds consent before abortion, did not enough and well informed to decide intelli- underwent the law notice, aspect parental this statutory also sent instead of but 1. The amendment changed by requiring parental con- the law is not before us. Ohio law any requirement meeting contain at *24. “Some women are excused See Ohio place person. coming take from Rev.Code because of the distance of 2317.56(B)(1) (1997) (“At § their twenty- clinic, least residencies from the their lack resources, or prior performance four hours to the or because of interference from Id. partner.” an abusive abortion, physician inducement of the The district court percent found that 7 to 18 woman, of those verbally informs the pregnant or excused are CWS excused because of by other nonwritten means оf communica- “partner abuse.” ”). patients Excused .... Attorney tion Ohio’s General is- “receive all the information about pro- opinion sued an in 1994 interpreting the cedure via mail and given opportu- 2317.56(B)(1) tq older of section version nity to listen to an audio version” permit videotaped audiotaped physician informed tape, consent video speak and to statements. See Att’y Op. Ohio Gen. advocates.” Id. Wit- “patient with CWS’s 94-094, 1994 No. WL 725885. The chal- nesses from two other abortion clinics— lenged provision changed thus the status Capital Care clinic in Columbus and Cen- quo require that a seeking woman ter for Choice clinic in Toledo—testified receive in-per- informed consent that their clinics percent excuse to 10 son, by any physician, rather than “verbal- patients their from their own pro- two-visit Id. ly other nonwritten means.” tocols. Id. at-, 2005 U.S. Dist. LEXIS provider pro- is a healthcare that CWS 23015, at Twenty *25. to percent contraceptive vides services performs and this excused are “abused women.” pregnancy testing and abortions. See . Id. — Taft, -, F.Supp.2d at 2005 U.S. 23015, Dist. LEXIS at *19. a wom- When B. Background Procedural inquires about obtaining abortion Several weeks before the Act’s effective CWS, from her first contact generally date, filed a pre-enforcement CWS facial Id. at -, by phone. 2005 U.S. Dist. against attack two of the Act’s provisions, 23015, at employees LEXIS *20. CWS naming the Governor of Ohio and various process inform her of CWS’s abortion government other officials as defendants. invite her to appointments. schedule two - Taft, F.Supp.2d -, at 2005 U.S. Id. “The first appointment in- is for an 23015, Dist. sought LEXIS at *3. CWS formed consent visit and ap- the second injunctive declaratory relief on the Id. pointment procedure.” is for an actual grounds statutory provisions evaluating impact of the In-Per- unconstitutionally vague and invalid under CWS, son Rule on the district court found Supreme precedent. Following that the In-Person Rule will have the trial, upheld bench the district court both practical requiring effect of all of CWS’s provisions. respect Single- With to the twice, own clients to premises cоme to its Rule, Petition the district court reasoned once the informed-consent meeting that Supreme precedent does not CWS, with a physician affiliated with and a “require[ the state to ] afford minor vir- See id. at procedure. second time for the tually opportunities unlimited to petition -, -, -, -, 2005 U.S. Dist. Id. at-, bypass.” for a 2005 U.S. Dist. 23015, *12, *20, *36, LEXIS at 23015, *39. The LEXIS at *46. Assuming district court found that currently CWS striking Single-Petition down the Rule approximately excuses percent 5 to 10 opportunities would mandate “limitless to patients its from proto- its normal two-visit bypass” for a during the same col. Id. at-, Dist. pregnancy, U.S. LEXIS the district court determined at---, -, conflict See id. would defense.” requirement

that “such *51-*52, 23015, com Casey the state could at in that 2005 U.S. Dist. LEXIS with from even obtain prohibit minors pletely *53. necessary except where ing an Likewise, upheld the district court of the minor.” the life or health preserve ‍‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌​​‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌‌‌‍it not cre- In-Person Rule because “does at---, 2005 U.S. Dist. LEXIS Id. seek- ate a substantial obstacle Parent (citing Planned *46-*47 at-, Dist. abortions.” Id. Casey, Pa. U.S. hood Se. granting *29. LEXIS While (1992)). 2791, 120 L.Ed.2d 674 could the effect the In-Person Rule have also held that The district court weeks, delaying up to abortions two any impose “does Rule “delay up court held that a district con- pre-viability in the undue burden even weeks, however, impose does not two at-, U.S. Dist. LEXIS text.” seeking abor- undue burden on women otherwise, the dis- at *47. To find at-, tions.” Id. Dist. LEXIS that would have trict court concluded 23015, at *30. on The district court relied guesswork engage speculation and ruling Court’s (1) following: what about in- upheld Pennsylvania’s similar subsequent petitioners’ petitions formed-consent statute. under- due to lack of had been denied (2) procedure;

standing of Addressing question difficult the “most petitioner’s increased under- whether answer,” rejected the district court in a standing proceeding second argument that the In-Person CWS’s grant- enough tip the balance favor of probability would increase the that abusive (3) bypass; proportion a what partners pregnancy would learn about the petitioners develop fetal subsequent would abortion, attempt the to obtain an or unsuccessful anomalies after an thereby on the causing an undue burden (the con- first district court trimester woman’s constitutional abortion-seeking that a such a cluded minor who discovered at-, id. right to abortion. See anomaly likely prenatal had fetal access 23015, After U.S. Dist. LEXIS at *3.9. care, one to conclude further “which leads reviewing the record evi- testimonial and guardian has involved parent that she trial, dence received at the district court pay the medical pregnancy in her concluded that evidence not estab- did bills”). at---, See id. 2005 U.S. what of the proportion lish abused 23015, The dis- Dist. LEXIS at *47-*50. obtaining be blocked from abortions. it trict court determined that would also at---, id. 2005 U.S. Dist. See that a pure speculation to conclude 23015, LEXIS at *39-*42. The district parents would large fraction of withhold court thus it could not concluded for from minor. See consent an abortion down In-Person under Ca- strike 23015, at-, Dist. id. 2005 U.S. LEXIS at-, sey’s “large fraction” test. id. See Finally, the court held at *50. district 23015, *41. 2005 U.S. Dist. LEXIS not Rule need Single-Petition timely appeal This followed. Enforce- exception, and that contain mental-health Rule, not ment but exception was general maternal-health Rule, enjoined though the In-Person has been it had been constitutional even pending appeal.2 in the form of an affirmative resolution of this “promulgated agreed Slightly complaint, parties to an order than a week after CWS filed its more Large burden, II. The Fraction Test “undue and therefore invalid.” Id. 895, 112 S.Ct. 2791. This test has come Casey, Planned Parenthood Pa. v. of Se. Casey be known as the “large fraction” 833, 2791, 120 L.Ed.2d test. (1992), sets the standard that we are apply challenges decade, in facial to abor intervening bound Supreme In Casey, Supreme See, tion restrictions. Court has not abandoned Casey. e.g., ap Court set forth the test that must be Planned Parenthood v. 510 U.S. 1309, 909, plied analyzing whether restriction 114 S.Ct. 127 L.Ed.2d 352 (1994) placed (Souter, J., on a woman’s constitutional right to denying application for mandate) (if stay an abortion is an “undue burden” on that an abortion restriction right, thereby rendering interposes the restriction fa a substantial large obstacle on a 878, 894-95, cially unconstitutional. Id. at population, the affected it is an S.Ct. 2791. The Court de unconstitutional violation of “the exercise that, because “[ljegislation termined is of the to reproductive guar- freedom consistency for by measured with the Consti anteed the Due Process Clause and impact tution its on those whose con affirmed in Court’s Casey opinion” th[e] (citations affects,” analyzing omitted)); duct it when Fargo Women’s restrictions, proper of consti Health Org. Schafer, “[t]he focus inquiry tutional is the group whom the 123 L.Ed.2d 285 restriction, (1993) (“[W]e (O’Connor, J., law is a concurring) whom the law is irrelevant.” Id. at made clear that a restricting abortions Therefore, if, “in burden, 112 S.Ct. 2791. constitutes an undue and hence is invalid, if, fraction of the cases in which in large [the fraction of the cases relevant, operate relevant, is it will restriction] as a which operate [the law] will substantial obstacle to a woman’s choice to as a substantial obstacle to a woman’s abortion,” (internal undergo an then reviewing undergo choicе to an abortion.” omitted)).3 courts should find that the restriction is an citation Casey maintaining quo i.e., majority applying Casey’s large-frac- status the state of for not — prior the law to the 1998 amendments —in the implicitly argues tion test and that the Court preliminary injunction. form of When the large-fraction has abandoned the test. Id. at judgment district court entered its final dis- 1019-20, J., (Thomas, 120 S.Ct. 2597 dissent- 8, 2005, missing September on the case the Gonzales, ing). Nat’l Abortion Fed’n v. Cf. preliminary injunction was dissolved. The 278, Jr., (2d Cir.2006) (Walker, 437 F.3d 294 day next the district court issued another or- C.J., (”[T]he concurring) Supreme ap- Court suspending injunction der dissolution of the pears adopted large to have fraction’ appeal for two CWS weeks. filed notice of (perhaps by Stenberg standard modified to 16, September on 2005. When the order standard) 'not-so-large mean a fraction’ suspending injunction dissolution of the ran challenge regu- those who seek to an abortion course, court, September its the district on unconstitutional.”). facially lation as Howev- 22, 2005, stay denied CWS’s motion to er, misplaced. Justice Thomas’s criticism is judgment pending appeal. holding Stenberg relating in to whether 3, 2005, granted On October this Court in the abortion restriction before the Court was part part and denied in CWS’s motion to hinged entirely statutory an undue burden on enjoin pending appeal. enforcement of the Act 938, interpretation. Stenberg, U.S. at 120 530 enjoined Single-Peti- We enforcement of the 2597; 938-46, see also id. at 120 S.Ct. Rule, respects, tion but all we in other denied Stenberg, 2597. In ac- the state of Nebraska the motion. knowledged question that the statute in placed an undue on a Stenberg Justice Thomas’s dissent in burden woman’s v. Car hart, 914, 2597, interpreted U.S. to an abortion was in a 530 120 S.Ct. 147 if it cer- (2000), Stenberg way way Supreme L.Ed.2d 743 takes to task the tain Court eventu- —the 368 Salerno, to a operate will as a substantial v. obstacle States 481 United 2095, (in 745,

739, 95 L.Ed.2d 697 undergo 107 S.Ct. choice to abortion” woman’s that, to (1987), Supreme omitted)); held Court Parent ternal citation Planned challenge, constitutional in a facial Farmer, succeed hood v. 220 F.3d Cent. N.J. that establish no set challenger must Cir.2000) “the (3d (“a plaintiff 142-43 must undеr which the circumstances exists regulation show that an abortion would However, in consid be valid.” [law] in a of the large undue burden fraction challenges to abortion restric ering facial relevant”); regulation cases in that is circuit, tions, exception, one has every with Lawall, Parenthood Ariz. v. Planned S.of rather than Casey’s test Salerno’s applied 1022, 1027, 180 F.3d amended on denial of restrictive “no set circumstances” more (9th Cir.1999) (follow reh’g, 193 F.3d 1042 Fed’n Nat’l Abortion v. Gon test. See weight authority “great circuit (Walker, C.J., Jr., zales, F.3d 294 437 has holding Casey that Salerno overruled (“As now, however, concurring) it stands in challenges the context of facial to abor appears to have statutes”); L. 102 Bangerter, tion Jane v. fraction’ ... adopted ‘large standard (10th Cir.1996) (noting F.3d challenge who an abor for those seek Casey apply” Court “did not facially regulation as unconstitution tion test, but Salerno rather “evaluated al.”); Ctr. v. Richmond Med. Women regulations under the undue stan burden (4th Cir.2005) Hicks, 409 F.3d dard”); Parenthood, Planned Falls Sioux ‘no set of (holding that “Salerno’s circum (8th Millеr, 1452, 1456-58 63 F.3d Clinic v. apply in the stances’ standard does Cir.1995) (opting “follow what the Su challenge ... of a facial to a stat context preme actually did—rather than regulating a access ‍‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌​​‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌‌‌‍to abor ute woman’s say what it undue- apply failed —and Heed, tion”); Planned v. Parenthood requires burden test” which a court (1 Cir.2004), 53, 57 vacated on F.3d st an abortion if the law invalidate restriction Parenthood, v. grounds Ayotte other Planned “operatefs] substantial obstacle — U.S.-, undergo woman’s choice to an abortion (2006) (determining that L.Ed.2d 812 Ca large [it] fraction of the cases which is properly sey’s large-fraction applied test omitted)). (quotation relevant” The Fifth challenges); A to facial abortion-restriction rejection Circuit alone its stands Woman’s Choice-E. Side Women’s Clinic Moore, large fraction test. See Barnes v. (7th Newman, 684, 687, 305 F.3d 698-99 (5th Cir.1992) (an Cir.2002) (holding F.2d restriction “will be unless, plaintiff no in a must “establish that set f deemed valid relevant, the law is exists the Act the cases which circumstances under which 1142, Stenberg, ally interpreted Id. Because the state con- see v. F.3d 1149 it. Carhart 192 (8th Cir.1999); (Because ceded that the statute was an undue burden if see also id. at 1151 way, regulation interpreted a ”[a]n certain Court did not abortion that inhibits the vast large-fraction analysis. majority need to undertake the of second trimester abortions would Idaho, clearly placing effect of See Planned Parenthood Inc. v. Was- have the substantial den, 908, (9th Cir.2004) path seeking 376 F.3d 921 n. 10 obstacle in the of a woman ("The abortion-specific large pre-viability abortion” fraction’ stan- and the restriction procedure part parcel "prohibit[s] of the undue burden here the most dard is common abortions,” thereby analysis.”). Stenberg Finally, the Court af- for second-trimester it toto, right Eighth firmed the Circuit’s decision in causes "an undue burden on woman’s 946, 2597, (quotation Stenberg, 530 120 to have an U.S. at S.Ct. choose abortion.” test, omitted)). Casey’s large-fraction itself used which

369 Salerno, (quoting 481 regulation would be valid” U.S. when ‘a state has the purpose 2095)).4 745, 107 S.Ct. or effect of placing a substantial obstacle path of a woman seeking an abоrtion circuits, majority of other Like the this ” of a nonviable fetus’ (citing Casey, 505 Casey’s large-frac too has followed 876-77,112 2791)). U.S. at S.Ct. analyzing tion test facial attacks on regulations. deciding whether Thus, path our is clear: must We pre-viability passes restriction Casey’s large-fraction follow test in analyz muster, facial constitutional we “determine ing the facial challenge to the two abortion large whether ‘in a the eases restrictions before us. Accordingly, we relevant, which is it will operate [the ban] asses whether Ohio’s abortion restrictions as a substantial obstacle to a woman’s ” present a substantial obstacle to undergo obtaining choice to an abortion.’ Women’s Voinovich, an large abortion for a Corp. Med. v. 130 fraction of the F.3d Prof'l (6th Cir.1997) 187, (quoting Casey, 196 women for whom 505 the restrictions are rele 2791). 895, 112 U.S. at S.Ct. This has 895, vant. 505 U.S. at 112 S.Ct. repeated practice. been our and continuous See, e.g., Corp. Women’s Med. v. Prof'l (6th

Baird, Cir.2006) 595, 438 F.3d 607 III. The (following Casey’s holding that “a regula tion is an undue if ‘in a large burden Constitutionality A. Single-Peti- regula fraсtion of the cases in which [the tion Rule relevant, operate tion] is it will as a sub requires If a state parental con stantial obstacle to woman’s choice to ” sent unemancipated before an minor wom undergo an abortion’ (quoting Casey, 505 abortion, provide receives it must 895, 2791)); 112 Memphis U.S. S.Ct. judicial procedure or administrative so Sundquist, Planned Parenthood v. 175 that a minor woman who satisfies certain (6th (“When Cir.1999) F.3d 477 n. 3 may bypass conditions the consent re considering regu statute [whether a] [that Baird, quirement. See Bellotti v. lates is unconstitutional abortion] on its 622, 647-51, S.Ct. L.Ed.2d 797 face, analyze we must the factual record to (1979) (“Bellotti II”). (plurality opinion) determine whether the challenged regula If a minor woman establishes either “that tion in a of the cases in fraction enough enough she is mature and well relevant, operate is will aas sub informed to make the abortion decision stantial to a obstacle woman’s choice to independently” or “that the abortion would undergo an (citing Casey, abortion” interests,” reviewing her best 2791) U.S. at (emphasis agency court or must bypass. issue the added)); see also Women’s Med. Prof'l Wicklund, 292, 295, Lambert v. (6th 436, 443, Corp. Taft, 353 F.3d (1997) Cir.2003) 137 L.Ed.2d 464 (holding may that “a state regu (citation omitted). Otherwise, late the attend viability abortion before as it long ant impose bypass procedure constitutionally does not ‘undue burden’ on a II, woman’s invalid. pregnan terminate her See Bellotti 443 U.S. at 643- cy,” “an ‘undue burden’ exists 99 S.Ct. 3035. Barnes, Salerno), Interestingly,

4. even the Fifth Circuit's cases without reference to with (5th 1992) are Compare inconsistent on this issue. at & 2 (per So 970 F.2d n. Cir. Edwards, (5th curiam) journer T. v. (applying 974 F.2d Salerno to a facial attack 1992) (applying Casey’s regulation). Cir. undue burden test on an abortion for a from an as judicial-bypass procuring “deterred abortion provides Ohio if the surely [government] has outlawed apparently encompasses that procedure 894, 112 in all Id. at forth abortion cases.” S.Ct. requirements set procedural however, spousal-notification The Ohio, 2791. law Ca II. Lambert and Bellotti facially it sey was unconstitutional because filing one seeks to limit a minor woman that at satisfied test. Id. 112 S.Ct. per prеgnancy. The bypass a 2791. Supreme has never determined Court preventing restriction

whether Single-Petition Applying Casey to the filing multiple bypass a minor woman from us, group before find that we the Constitution. We petitions violates actually for whom the restriction women must, therefore, analyze Ohio’s whether are who are a operates women denied procedure judicial-bypass restriction to the changed bypass who have circum- Casey’s undue burden under constitutes an they such that if stances were able large-fraction test. for a reapply bypass, granted. would be group of will analyzed In a The women who be deterred Supreme procuring from required a an abortion because spousal-notification with cir- changed restriction women married woman who wished to abort her apply husband, cumstances who would for another notify her un- pregnancy to first if bypass allowed. The record shows that statutorily exempted less she into a fit petitioners exist under cur- 887-88, second Ohio’s category. Casеy, 505 U.S. at scheme, bypass and that that, practically rent 2791. held S.Ct. petitioners allege changed all second cir- determining this restriction whether that, believed, cumstances such if a review- burden, was an undue focus of “proper bypass. court a must issue inquiry constitutional is the changed circumstances that affect abor- restriction, whom law is tion-seeking minors include increased ma- group for whom the law is irrelevant.” Id. turity, medical about knowledge increased Therefore, 2791. while abortion, and minors pregnant who discov- ostensibly the restriction all mar- affected anomaly that their er fetus has medical seeking abortion, ried women gastroschisis.5 such as The record further only spousal-notification restriction was who shows most women are denied seeking to married relevant women experience change but who statutory not fit abortion who did into a subsequently their circumstances seek will exception requirement to the notification procedure. another Because hus- and did not desire inform their more preventing peti- Ohio’s law than one 894-95, about bands the abortion. Id. per procedure tion acts as a substantial for whom 2791. Of to a woman’s to an obstacle relevant, actually many the restriction was large in a the cases in fraction of abuse, of whom at risk for spousal were relevant, single petition we find that the is “operate the restriction would aas sub- Single-Petition Rule is an undue burden “large-fraction.” stantial obstacle” to a therefore, and, facially unconstitutional. Casey thus requires courts to determine sum, whether a “for the women because the Casey’s fails large-fraction whom law is restriction” will be Rule under usually It is likewise clear from the record that that fetal anomalies are not discover- judicial bypass petitions most are filed in the diagnosed able or until the second trimester. pregnancy first trimester of minor’s

371 test, facially fundamentally that it is unconstitu- disrupt statutory we hold the tional. scheme of which the pro unconstitutional Voinovich, part.”

vision is a 130 F.3d at Severability Single-Petition the B. of (citing State ex rel. Maurer v. She

Rule ward, 513, Ohio St.3d 644 N.E.2d (1994)). Single-Petition is Rule severa ble from the remainder of Ohio’s statute Ohio has devised a three-factor test that Therefore, regulating abortion. our find determines whether severance will cause Single-Petition Rule does not a disruption: such scrutiny survive ‍‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌​​‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌‌‌‍constitutional is not fatal (1) Are the constitutional and the uncon- regulations. to the remainder of the stitutional parts capable separation of so Ayotte v. Planned Parenthood may that each may be read and by stand — U.S.-, (2) Eng., N. New 126 S.Ct. itself? Is the part unconstitutional (2006), 163 L.Ed.2d 812 the Su- general so connected with the scope of preme reviewing Court held that a court impossible the whole as to make it need not invalidate an entire statute give apparent effect to the intention of “may court when the be able render Legislature if part the clause or declaratory injunctive (3) narrower re- stricken out? Is the insertion of lief.” that “partial, The “normal rule” is words or terms necessary order to facial, rather than invalidation is thе re- separate the part constitutional from the quired (quoting course.” Id. at 968 unconstitutional part, give and to effect Arcades, Inc., Spokane Brockett v. only? the former 491, 504, 86 L.Ed.2d (quoting Geiger Id. v. Geiger, 117 Ohio St. (1985)). long reviewing “So as [the (1927)). 451,160 N.E. intent,” legislative court faithful to is] test, Applying this we find that the Sin- declaratory judgment court “can issue a gle-Petition may be severed. As to injunction prohibiting and an the statute’s test, part the first Single-Peti- application.” unconstitutional independently. tion Rule can be read a portion Whether of a state’s Nothing in the remainder statute is severable is determined inherently requires scheme a limit on the Voinovich, law of that state. See 130 F.3d petitions. Single-Petition number of Ohio, “statutory provisions at 202. In “capable Rule is of separation.” therefore presumptively severable.” Id. Ohio law test, to the part excising As second of the provides that: Single-Petition Rule is not so connect- any If provisions of a section of the general scope ed to the application Revised Code or the thereof provisions scheme that other would not any person or circumstance is held have their intended effect if the court re- invalid, invalidity does not affect oth- test, moved it. the final part Under provisions applications er of the sec- eliminate, only add, we need words to tion or related sections which can be Single-Petition strike down the Rule. The given provision effect without the invalid Single-Petition simply Rule can be delet- or application, provi- and to this end the invalidity ed. The sions are severable. Rule does not affect remainder (2006). and, therefore, § provision parental Ohio 1.50 A Ohio’s consent Rev.Code may only if severed “severance will not is severable. women, Court de- abused the The In-Person

IV. an The to find undue burden. rec- clined In-Person turn to the nowWe concerning abused women ord evidence an in- Casey upheld both Although Rule. the centered Casey en- available and requirement person informed-consent ' of tirely impact on the on such women the require notification twenty-four-hour See spousal-notification requirement. Ca- to these two ment, Casey as the record 888-94, at sey, 505 U.S. S.Ct. 2791. Casey In the Court’s sparse. issues was admittedly These extensive facts did not words, is no on this “there evidence record impact women of the discuss on abused the infor give a doctor to requiring in-person requirement. informed-consent by the statute would provided mation Id. a substantial practical terms to amount an abortion.” seeking to a woman obstacle at Appellants in the case bar were 884, 112 obviously Casey aware of the Court’s reli- Therefore, the Court concluded paucity record concern- ance on in-person requirement informed-consent ing in-person how the informed-consent Id. at did an undue burden. not constitute requirement affected abused women de- 2791; 887,112 see id. at also clining to an burden. an find undue (“Hence, on record before S.Ct. 2791 to establish that there are abused attempt us, context this facial chal and in the of effectively who cannot obtain in- women 24- lenge, we are convinced pеrson physician informed consent with a an undue waiting period hour constitutes twenty-four prior at least hours receiv- burden.”). abortion, an amassed an Appellants data, amount akin to impressive the Ca- of the evidence before The sum Casey available in on the issue data sey concerning twenty-four-hour spousal notification. as follows: requirement notification was of fact ... indicate that findings The record shows that three Ohio abor- many the distances women because of providers, by policies, tion their own cur- provid- to reach abortion must travel an rently require in for an women to come in- er, effect will often be practical meeting prior person informed-consent day much more than a because delay of obtaining meeting an This abortion. does waiting period that wom- requires physician. not have to be with a Some make at least seeking abortion-seeking request to be women ex- many to the doctor. in- [I]n two visits in-person meeting. cused from the Some exposure оf stances this will increase the requests by the of these are denied clinics. seeking to “the harass- abortions Attendance is for women excused who hostility pro- of anti-abortion ment “simply away” live too far or have “income demonstrating outside a clinic.” testors hardship” or [other] reasons. Women ex- result, ... who those women As in-person cused from the informed-consent resources, have the fewest financial percent constitute meeting 5 to 10 abor- distances, long those who must travel tion-seeking According to Appel- women. difficulty explaining have and those who lants, in-person is all but im- meeting husbands, employ- whereabouts their situations,” possible for women “in abusive others, ers, waiting peri- the 24-hour approximately percent constitute who “particularly od will be burdensome.” in-per- clinics’ the women excused 885-86,112 requirement. percent, the basis this 25 12.5 S.Ct. 2791. On son Of facts, altogether precluded reference would be percent these without requirement. argues, as a result Ohio on the obtaining other from women, hand, group abused for whom Rule. For the law is the In-Person and, actually difficult person seeking in twice is relevant is all women an appearing cases, life-threatening. Any wom- abortion. in some in- in-person from the an who is excused parties, Unlike the we find that meeting receives videos formed-consent group for whom the law is a restriction for mail sent to her through and literature purposes applying Casey’s large fraction All oth- or another address of her choice. exception test is “all women who seek an in required are to come for an er women to the in-person clinic’s informed-consent meeting obtaining in-person prior requirement.” The record does not reflect abortion. this number. Therefore, every 1000 women who Yet; accepting urged even the definition abortion, by to 100 are excused 50 seek by Appellants, we do not find a substantial informed-con in-person the clinic from an Casey. pre burden under This Court has pro the facts meeting. According sent viously large found that a fraсtion exists clinics, 50 to by vided 6 to 12.5 of those nearly impossi when a statute renders it excused women will face a substantial actually by ble for the women affected if obtaining in an abortion forced obstacle abortion to obtain an restriction abortion. the In-Person Rule. There comply with Voinovich, Importantly, F.3d at 201. fore, 6 to 12.5 women approximately Voinovich, large fraction was found every seeking 1000 women an abor out of upon all whom the restric because women tion, state’s In-Person Rule would actually operated i.e., tion women seek — likely procuring deter them “from an abor ing pre-viability abor second-trimester surely tion as if has outlawed [Ohio] as from effectively tions—would be barred Casey, at abortion all cases.” exercising their constitutional to ob 894, 112 S.Ct. 2791. tain an circuits that abortion. Other

Thus, applied large on the have fraction test to fa Appellants improved have record, Casey respect challenges regulations at least with to the cial to abortion Nevertheless, have, likewise, only found a fraction issue informed consent. practically survives consti- when all of the affected women we find the restriction scrutiny. parties agree tutional would face substantial obstacle obtain See, Heed, e.g., deterred an abortion. 390 F.3d women who will be Miller, Farmer, 145; 64; obtaining an because of the 220 F.3d at from Neuman, who, 1463; 12.5 due to 63 F.3d at see also restriction are the women (in abuse, in-person (Coffey, concurring) ap at 699 J. domestic cannot meet the F.3d “it requirement plying large-fraction without test is clear informed-consent incidentally Casey that a law which grave parties [from ] risk of retaliation. The dis- however, prevents [for ‘some’ whom agree, [of the] over the definition actually restriction will group for whom the law is a restriction. passes argue obtaining that the 12.5 women who from abortions Appellants burden] muster”). Casey will not obtain an abortion as a result of constitutional to invalidate compared against persuaded .itself the restriction should be was require actually by in-per- Pennsylvania’s parеntal-consent all women affected by showing that the requirement, as all women who ment record evidence son defined altogether prevent requirement clinic from presently excused obtaining from an abortion. in-person the clinic’s own informed-consent some women rule, however, 2791; be- single see to the Casey, 505 U.S. holdings regarding 744 cause Parenthood also Planned (find directly (E.D.Pa.1990) judicial procedures compel 1323, 1356-57 F.Supp. invalidation of that rule. forty-six percent ing that “some” neither obtain a minor can cases where con Requiring get parental a minor to judicial by consent nor obtain parental abortion, possibility without the sent for an way in such a “may act pass, the judicial bypass pro of an administrative right to of her have deprive minor] [the standards, un that meets defined cedure abortion”). duly right the minor’s to an abor burdens holding of Bellotti v. tion. This is the date, found an abortion no circuit has To Baird, 622, 647-51, 443 U.S. 99 S.Ct. under unconstitutional restriction to be (1979) (plurality opinion) 797 61 L.Ed.2d simply test because Casey’s large-fraction (“Bellotti ”), by Supreme II reaffirmed actu- of the women percentage some small See, e.g., many subsequent in cases. Court unable by the restriction were ally affected Wicklund, 292, 295, 520 Lambert v. chal- Although a to obtain an abortion. (1997) 1169, 137 (per L.Ed.2d 464 S.Ct. operate as a de need not lenged restriction curiam); v. Planned Parenthood most of the wom- for all or even ban facto 833, 895, 505 U.S. affected, “large the term frac- actually en (1992); L.Ed.2d 674 Ohio Akron Ctr. tion,” which, way, conceptual is more 510-13, Health, 497 U.S. Reproductive mathematical, something than envisions (1990). 110 S.Ct. 111 L.Ed.2d 405 100 women identi- than the out of more challenge, To survive constitutional fied here. consent for a minor’s requiring parental (1) Conclusion V. that procedure must contain a consent allows the minor to reasons, judgment foregoing For the if that she is requirement she establishes upholding Single- of the district court enough enough and well informed mature REVERSED, judg- Rule is Petition independent to make the abortion decision AF- Rule is upholding ment the In-Person (2) ly, allows the minor to FIRMED, is REMANDED and the case if that requirement consent she establishes consistent with proceedings for further interests, the abortion would be her best opinion. this (4) (3) anonymity, and ensures the minor’s proce expeditious bypass provides ROGERS, Judge, concurring. Circuit Lambert, 295, 117 at dures. See 520 U.S. III-B, I, I concur in and IV of Parts S.Ct. 1169. entirely in majority the result. opinion, II stated Supreme Court Bellotti concerning single I separately write possesses that a minor absolute because, limi- categorical rule as a may her proceeding where she establish permitted tation on whether an abortion is bypass: entitlement to all, application the rule defies A minor is entitled in such “large pregnant fraction” test. (1) that she proceeding test instead to show either: “large has used the fraction” enough in- enough is mature and well of how regulation to examine state decision, in formed to make her abortion performed or of what abortion is to be indepen- physician, consultation with her given a woman who information should be (2) wishes; dently parents’ of her get an abortion. It is legally allowed to mаke this test even if she is not able necessary apply in this case to judge petitioner’s to evaluate the permit desired independently, decision maturity or interest in abortion in interests. current her best developments. a minor light new When 643-44, II, Bellotti alleges that her current state has material- added). II The Bellotti (emphasis ly changed, potentially an older and incor- every minor must explained rect will in identifiable cases determination that she to establish opportunity have the nullify command that a mi- Bellotti II’s parental consent not have to seek should of her nor’s current state be determinative maturity or level of on her current based in some request bypass. for a Ohio must interests: current best her ready manner stand to evaluate minors’ therefore, conclude, that under state We appropriate changed claims of circum- as that undertaken regulation such minors cannot constitution- Such stances. Massachusetts, have every minor must from all recourse in the ally be cut off she so desires —to оpportunity' —if by peti- the accomplished single manner first con- directly to a court without go Therefore, single petition tion rule. the If she sulting notifying parents! or her right petitioners rule violates the of second mature and the court that she is satisfies judicial process or administrative to some informed to make intelli- enough well changed their claims of cir- that evaluates own, decision on her gently the abortion cumstances. her to act with- the court must authorize If or consent. consultation parental out question bypass the of successive While satisfy that she is fails to the court she II petitions was not before the Bellotti decision inde- to make this competent Court, directly com- the Court’s rationale permitted she must be pendently, II in this case. The Bellotti pels the result an abortion nevertheless show its determination of the law Court founded If the in her best interests. would be judicial consent and concerning parental is, that it the court persuaded court is and nuanced balanc- bypass upon a careful If, the abortion. howev- must authorize interests. On the one ing of constitutional er, persuaded by not the the court is preserve the consti- hand were the need mature or that the minor that she is and the right tutional to an abortion interests, in would be her best nature of the abortion decision. unique operation. may decline to sanction the 639-44, 3035. On the id. at See 647-48, 99 S.Ct. 3035. particular vulnerabil- other hand were “the II, children; inability to make ity their of Bellotti reading a fair Under informed, in an mature consent critical decisions parental not to seek right minor’s manner; paren- of the importance and the of her maturi- on the current level depends Id. at rearing.” tal role in child in id. at 647- interest abortion. See ty or preclude These considerations provides II also S.Ct. 3035. 3035. Bellotti just they to a rule as led by judi- single petition the right protected must be that this in the first judicial bypass requirement right id. But if the proceedings. cial See Indeed, the Bellotti II in Bellotti II. pro- place such adequately protected, tois judi- that a contemplated expressly for material Court ceedings must account procedure would be available bypass after a cial petitioner’s in the state changes id. at 651 stages pregnancy. See proceeding. Ac- later first, bypass unsuccessful not II, The state has n. 99 S.Ct. 3035. single pe- the cordingly, under Bellotti any because, by identifying II distinguished Bellotti facially invalid after rule is tition fur- single petition rule way in which the the rule does not petition, a failed first necessary entangled for us to become protecting interests of vulnerable thers the minors, inability for their in the meta-mathematical niceties of making up decisions, furthering “large mature or whether a fraction” of relevant make role, by simply than curtail- abortion. parental other is denied the availability judicial bypass Indeed, “large analysis fraction” con- judicial for a late-arising minors with bases parties questionable tested is of bypass. resolving presented the issue assistance question this case. The this case is Instead, single petition rule is said constitutionality procеdur- of some not the of a minor’s “re- possibility to avoid the imposed part al hurdle pregnancy her until she filing throughout procedure, constitutionality but rather judge grant petition.” who will her fords categorical availability of a limit on the court does not Appellees’ Br. at 47.1 This bypass procedure to certain minors. may a state re- need decide whether circumstances, No a mi- matter what quire minors to direct their second or suc- judi- previously nor who has been denied a bypass petitions judge to the same cessive bypass may cial not obtain such a judge shopping, require high- to avoid during preg- the remainder the same proof petitions er burden of for successive nancy. refiling. to limit These issues are not single petition rule

before us because evaluating constitutionality judge shopping much than limit does more provision, inquiry such a cannot be Instead, it refiling. and unlimited forbids simply large restated as whether “in a judicial one has bypass where been cases in [the law] the is in sought unsuccessfully before the sаme relevant, operate it will as a substantial in pregnancy, regardless change of a cir- undergo obstacle to a woman’s choice to an prohibition cumstances. is incon- Such may provide abortion.” Such a standard holding reasoning with and of sistent the analytic clarity challenge ‍‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌​​‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌‌‌‍when the is to a II, Bellotti and thus constitutes undue type procedure, of abortion where the to an right burden on a minor’s abortion. question right is whether the to an abor- Casey, which sets the standard that we sufficiently preserved by tion is the avail- cases, in apply are bound to ex- See, ability e.g., of other methods. Sten- plicitly holding. the Bellotti II reaffirmed Carhart, berg v. 530 U.S. 895, 899, 112 See 505 S.Ct. 2791. (2000). “large 147 L.Ed.2d 743 Bellotti II a minor is entitled to Under analysis may fraction” also make sense judicial bypass stages seek a in the later question require- where the is whether the pregnancy, of and none of the constitution- judicial bypass procedure ments of the are al foundations for this decision warrants purposes so onerous as to defeat its and exception distantly so related to the thereby unduly burden the minor’s policies constitutional furthered that See, e.g., Memphis abortion. Planned inescapable decision. The conclusion is Parenthood, Sundquist, Inc. v. 175 F.3d single rule runs afoul of petition (6th Cir.1999). But where the issue is II, Bellotti us. which continues bind availability categorical exception the a bypass procedure, “large II of of fraction”

The rationale of Bellotti is suffi- analysis manipulable so as to ciently applicability single direct to the becomes lose petition logical depends in this case that it is its usefulness. Too much rule at issue petitions prior extremely that under the 1. The state's brief however concedes were Appellees’ rare.” Br. at 18. "[t]he evidence established that second of arbitrary only what the district court reasoned that “it is on the determination speculation large is. that a fraction of minors denominator develop who fetal anomalies the second categorical exception Opponents already trimester will have filed a simply argue that the denominator is will a bypass parental Id. at consent.” persons precluded by exception, -, Dist. LEXIS *48. leading to a fraction of one. Thus difficulty these with broader-denomi argue in this that de- plaintiffs case nator that analyses they is are in some nominator consists of “all women who are “[tjhe proper tension with the idea that and who later discover denied focus of inquiry group constitutional is the causing information medical other restriction, for whom law is a not the pursuit to renew of an them their abor- group the law for whom irrelevant.” is Br. at 2. Appellants’ Reply tion.” As the 2791; Casey, 505 U.S. at order denying district court noted its Voinovich, Corp. Women’s Med. Prof'l stay pending appeal, CWS’s motion for a (6th Cir.1997). 130 F.3d 194-97 argument “[ijmplicit Plaintiffs’ is a con- categorical exception Where there is a ... only group tention relevant judicial availability bypass, of a it is considering regulation creates whether arguably say somewhat artificial an undue burden those women is who category thosе outside are within actually obtaining from an abor- foreclosed the law a for whom restriction. Any plaintiff defining the tion.” so denom- automatically inator could show a fraction Thus, outside the context of an abortion (i.e., percent), one one-hundred abortions, or types law that limits the thereby any categorical excep- invalidate judicial imposes procedural hurdles to a availability bypass proce- tion to the of a bypass, preclusion a total a defined dure. category “large defies fraction” cases analysis. In this context the district on exception, Defenders the other court’s observations about the indetermi- denominator, hand, argue larger must a nacy particu- of fraction are test abortion-seeking of some class women that larly compelling: persons precluded. includes Thus also fraction” argue “large case that the de standard enunciat- defendants this in Casey by all ed nature the courts nominator should include women who invites initially regardless еngage in a number- bypasses, parties denied crunching impact exercise to might circumstances that obviate the need assess bypass. regulation. parties In of an for later the absence of Nevertheless, that a have tried to do so here. large portion evidence minors “large that a fraction” consti- initially bypass stating denied a will need one later, tutes not the that the a substantial obstacle is argue defendants relevant contrast, defining frac- thing “large same fraction is small. but to a result, in- Supreme court tion.” similar the district at one Because analysis the constitutional point considered the denominator to be structs only judicial focus on those women bypass minors whose need for should relevant, actually during pregnancy, arises at a later whom the restriction point argument Casey, 112 S.Ct. at regardless bypass whether a has been women is sought group devolves to which previously. Cincinnati Women’s — Servs., at-, the numerator and Taft, F.Supp.2d properly Inc. v. considered eon- proрerly of women is group 2005 U.S. Dist. *49. The LEXIS Even if a sidered the denominator. properly America,

court identifies the numerator UNITED STATES denominator, it still must decide Plaintiff-Appellee, resulting “large.” whether the fraction is Casey provides no Again, the real

guidance. This Court’s research has not Joseph SEYMOUR, Lee Defendant- any decisions in which the developed Appellant. successfully applied, courts which have attempted apply, or have even No. 05-1643. large fraction test. — Appeals, United States Court of -,

Taft, F.Supp.2d (footnote Sixth Circuit. Dist. at *10-11 LEXIS omitted). Argued: Sept. 2006. Indeed, application pure wooden of a “large analysis fraction” lead Decided and Filed: Nov. following anomaly. Suppose state law precluded judicial bypass persons Fiji

who previous had traveled to in the

three per- months. The number of such judicial

sons in the state who needed a tiny any would be a group,

relevant other than the

persons judicial who need who Fiji. imagine

have been to Yet it is hard to uphold Court would such “large analysis.

a limit under a fraction” hand, may categori-

On the other there be availability judi-

cal limitations on the of a

cial bypass that would not an undue

burden on the to an Al- abortion.

though II Bellotti was handed down more

than a decade before Justice Pow- opinion

ell’s II explicitly applied Bellota test,

an “undue burden” albeit without us-

ing any “large analysis. fraction” 640, 647-48, opinion fairly preclude any type

cannot be read to categorical limitation availability on the judicial bypass. reading,

of a un- Such

necessary today, overly would be an for-

mal and artificial application ‍‌‌‌‌‌​​‌​‌​​​​‌​‌‌​‌‌​‌‌​​‌​​‌‌​‌​‌​​‌‌​​‌‌​​‌‌‌‍“large of a analysis only

fraction” that makes sense

other contexts.

Case Details

Case Name: Cincinnati Women's Services, Inc. v. Taft

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 13, 2006

Citation: 468 F.3d 361

Docket Number: 05-4174

Court Abbreviation: 6th Cir.