*2
parent
sent
certified mail to the
MURPHY,
HARTZ,
Before
EBEL and
guardian’s “usual place of abode.”
Judges.
Circuit
1-740.2(A)(1)-(2).
§
Alternatively,
EBEL,
Judge.
Circuit
parent
or guardian
certify in a nota
rized
Plaintiff-Appellant
Sys-
Nova Health
statement
that he or she has been
(“Nova”)
1-740.2(A)(3).2
tems
challenges
§
the district
notified. Id.
"unemancipated
"any person
An
requirement
minor”
tice
commits a criminal misde-
(18)
eighteen
years
age
under
who is not or
subject
meanor and is
to a civil action for
has not been married or who is under the
punitive damages "by
actual
per-
care, custody
person's par-
control of
wrongfully
son[s]
denied notification.”
parents, guardian
juvenile
ent or
court of
§ 1-740.4. Nova
claims
staff who assist
competent jurisdiction.” Okla. Stat. tit.
(such
procedure
entity
an abortion
and the
1-740.1(3).
Nova)
arranges
procedure
for the
accomplice liability
face
under Oklahoma
person
performs
2. A
who
an abortion in
law.
See
Stat.
Okla.
tit.
"knowing and reckless violation of” the no-
unemancipated mi-
afforded a
ways
notice
are two
There
First,
day,
hours a
seven
twenty-four
notice can bе waived
nor
requirement.
emergency
days
or where
of medical
case
week.
necessary
prevent
the abortion
1-740.3(0,(D).
§Id.
*3
740.2(B)(1)—
§
minor.
Id.
of the
death
1—
Similarly, although the
Act
Oklahoma
(2). Second,
may
the
a
authorize
court
a
does not establish
concrete time frame
notice.
performed without
abortion be
to consider the
appellate
for the
court
proce-
It is this second
1-740.3.
in
event she is denied
appeal
minor’s
the
the
“judicial
sub-
bypass”
dure—
—that
court,
trial
the statute does
relief
the
ject
present appeal.
provide that
provides,
The Oklahoma Act
relevant
appeal
confidential
shall
[a]n
part,
to
unemanci-
any pregnant
be available
minor
pregnant unemancipated
a
[i]f
for whom the court denies
pated minor
the
of her
elects not to allow
notification
authorizing
order
an abortion without
an
compe-
a
any judge of
parent,
authorizing
An
notification.
order
an
shall,
jurisdiction
upon petition
tent
abortion without notification shall
be
motion,
hear-
appropriate
and after
subjeсt
No
fees
appeal.
filing
shall
perform
a
the
ing,
physician
authorize
required
any pregnant
unemanci-
be
the
judge
if the
determines that
at either the trial or the
pated minor
unemancipated minor is ma-
pregnant
[Ajccess
appellate
ap-
level----
con-
capable
giving
informed
ture and
purpose making
pellate courts
abortion.
If the
proposed
sent to
same,
appeal from the denial of
shall
un-
pregnant
that the
judge determines
unemancipated
pregnant
a
be afforded
mature,
if
minor is not
emancipated
twenty-four
day,
sev-
minor
hours
minor
unemancipated
does
pregnant
(7) days
en
a week.
mature,
judge
to be
shall
not claim
1-740.3(D).
§Id.
the performance
determine whether
May 20,
day
Oklahoma
On
notification
upon
an abortion
her without
effect,
enjoin
filed suit to
Act took
Nova
inbe
her best inter-
parent
of her
would
time,
At the same
it filed
enforcement.
physician
shall authorize a
est and
injunction with a
preliminary
motion
notification
perform the abortion without
order,
temporary restraining
request
pregnant
judge
if the
concludes that
judicial bypass provisions
that the
unemancipated
arguing
minor’s best
interests
thereby.
they failed
served
be
were unconstitutional
which mi-
time frame within
specify
1-740.3(A).
The Act does not set
must
decided.
bypass petitions
nors’
time frame within which
forth
definite
lack of time limits
argues
that the
petition
the decision
risks associated
will increase the medical
made, providing instead that
procedures.
Specifically,
with abortion
shall be
[proceedings
the court
unlimit-
“potentially
that the
Nova claims
prece-
given
and shall be
confidential
judi-
delay
receiving
a minor faces
ed”
so
pending
other
matters
dence over
request
proceed
her
approval
cial
the court
reach
delay her abor-
delay so
to without notification could
promptly and without
trimester,
in which
serve the best interests of
into
second
tion
unemancipated minor....
a different
undergo
have to
case she would
result in
procedure.
could also
purpose
court for the
Access to
trial
past
point
progressing
pregnancy
motion ...
shall be
petition
abortions,3
provides
Colo.,
meaning
Schrier v.
Univ. of
(10th Cir.2005)
ILC,
(quoting
SCFC
“great
the minor would have to travel
USA, Inc.,
Inc. v.
Visa
abortion,
to receive her
distances”
further
(10th Cir.1991)).5 In
party
order for a
increasing
proce-
the medical risks of the
injunction,
preliminary
be entitled to a
dure.4
party must show
hearing,
After a
the district court denied
“(1)
irreparable
he or she will suffer
preliminary injunction,
Nova’s motion for a
issues;
injury
injunction
unless
finding that Nova had failed to demon-
injury outweighs
the threatened
whatev-
emergency
strate a need for
relief.
injunction
er damage
proposed
*4
timely appealed.
cause
opposing party;
injunc-
the
the
tion,
issued,
if
would
to
not
adverse
DISCUSSION
interest;
public
the
a
and
there is
substantial
likelihood
success
on the
I.
Standard
Review
merits.”
“
preliminary injunction
‘[A]
is an
Id. at
(quoting
1258
Heideman v. S. Salt
extraordinary remedy,
right
(10th
[and thus] the
City,
Lake
F.3d
Cir.
” 2003)) (alterations omitted).6
to
must be
unequivocal.’
relief
clear and
favor,
3.
provides
through
tip
decidedly
abortions
17th
'harm' factors
in its
pregnancy.
week of
‘probability
requirement'
of success
is some
only
what
relaxed”
"the movant need
сurrently
4.
past
women
refers
who
questions going
show
to the merits so seri
gestational
per-
limit at which Nova will
ous, substantial,
doubtful,
difficult and
toas
Rock, Arkansas;
form an abortion
Little
to
ground
litigation.”
make them a fair
for
Id.
Kansas;
Wichita,
Springfield,
or
Missouri.
alterations,
omitted).
(quotations,
emphasis
adopted
we have also
the Second
Espirita
In O Centro
Uniao Do
Beneficiente
qualification
Circuit's
on
Vegetal Ashcroft,
this standard that
v.
F.3d
Cir.
"
2004) (en banc),
preliminary injunction
'where a
to
held
certain “disfa
seeks
injunctions"
preliminary
require
stay governmental
vored
pub
action taken
"satisfy heightened
movant to
Id.
burden.”
pursuant
statutory
lic interest
regu
to a
at
injunction
975. One such
scheme,
"disfavored”
latory
rigorous fair-ground-
the less
injunction seeking
to "alter the status
for-Iitigation
ap
standard should not be
"
”
id.,
quo,”
generally thought' of as
'the last
Bane,
plied.'
(quoting Sweeney
peaceable
existing
uncontested status’
be
(2d Cir.1993)) (alterations
F.2d
parties.
dispute
tween the
before the
devel
omitted).
where,
here,
plaintiff
Thus
oped,”
al.,
Wright,
11A Charles A.
et
Federal
statute,
enjoin
seeks to
the enforcement of a
Practice & Procedure 2948.
showing
questions
are "fair
parties
The
do not contend that Nova's at-
ground
litigation”
enough;
for
is not
tempt
enjoin
newly
this
enacted statute
plaintiff must meet the traditional "substan
subjected
heightened
should be
stan-
tial
likelihood
success” standard.
See
express
opinion
dard.
therefore
no
City
Statharos v. New York
Taxi and Limou
question
injunction
whether such an
Comm’n,
(2d
sine
F.3d
Cir.
thought
"altering”
"pre-
should be
of as
1999) (refusing
apply
ground
"fair
for lit
event,
serving”
quo.
status
In
igation”
request
enjoin city
standard to
result
our
be the samе
agency
enforcing regulation promul
from
heightened
under either the normal or
stan-
charter);
gated pursuant
city
Union Carbide
dard.
Ag
Costle,
Prods. Co. v.
ric.
(2d Cir.1980) ("When Congress
correctly
out that we have
governmental
"adopted
authorizes or mandates
action
Second Circuit's liberal defini-
interest,
public
that is in the
'probability
require-
tion
more
of success’
than
Heideman,
ground
litigation'
‘fair
(quo-
ment.”
348 F.3d at
must be shown
omitted). Generally,
tations
stopped
before the action
“where the
will be
in its
moving party
order.”).
has established that
three
tracks
obtained,
whereby
authorization could be
court’s denial of
district
We review
of dis-
injunction
proceeding
for an abuse
and that this
“must assure that
preliminary
Schrier,
“A
issue,
7. These were laid However, (1990); subsequent justice plurality. 111 L.Ed.2d S.Ct. opinions, majorities invoked the havе to be appeals have held criteria courts criteria, Wicklund, Hunt, see Lambert v. see, e.g., Manning controlling, 292, 295, 137 L.Ed.2d U.S. 1997). (4th Cir. curiam); (per Ohio v. Akron Ctr. out, so, bypass procedures, ques- [the Even several statute requirements”).8 meets the tion] have appeals applied Bellotti’s expeditious bypass requirement the con now turn to We the heart a parental text of notice statute. Planned appeal present expe Bellotti’s —whether Miller, Parenthood, Sioux Falls Clinic requirement ditious (8th Cir.1995) (“[P]a- 68 F.3d concrete, ju definite time frame in whiсh parental-con provisions, rental-notice like dicial action Nova’s ar must be taken. provisions, sent are unconstitutional with gument premise that it rests does Bellotti-type bypass.”); out Ind. “[although time is always es Planned Parenthood Ass’n v. sence where abortion decisions are con Affiliates Pearson, 1127, 1132 Cir. cerned, expedition especially important is 1983) (“Because involvement bypass process” about either brought consent notifi longer minor has to wait to obtain abortion, expensive and, cation statutes result in the more similar efforts — importantly, less abortion, proce more safe—the by parents to block the we will certainly dure becomes. This correct. apply analysis Court’s whether is of time respect procedures consent point; essence misses question our consideration suf constitutional whether, specified frame, without a time ficiency of Indiana’s notification bypass judi the Oklahoma Act assures that the procedures.”). cial bypass process completed will be need question today. not resolve this Bellotti, with “sufficient expedition.” Because conclude that the Oklahoma *6 U.S. at S.Ct. Nova has not expeditious Act meets bypass Belloti’s re- shown a that “substantial likelihood” a quirement, deciding we assume without requires proceed statute which bypass the requirement apply pa- that to ings “given precedence over other rental notification statutes. See Akron pending matters that so the court Health, Reprod. Ctr. 497 U.S. at promptly reach a decision and without 2972 (assuming, S.Ct. without decid- delay as so to serve the interests best ing, that nоtification statute must contain pregnant unemancipated minor” and “because, Bellotti-type procedures bypass provides confidential “[a]n whether or not the Fourteenth Amend- fails, face, appeal” satisfy on its Bellotti requires ment notice to contain statutes . argument, 28(j) After oral Nova filed Rule whether a notice statute must meet Bellotti's informing letter requirements, this court that Oklahoma has we see no to alter our reason require amended the Act that minor not analysis light change. of this notice, written, give only but аlso receive the suggests 9. Nova that the Oklahoma Act's lan- parent, informed consent of at least one be- guage bypass petitions precedence that take obtaining fore an abortion. S.B. See "may” so that prompt courts reach a Leg., (Okla. Reg. §§ 50th 2nd Sess. 2006). expeditiousness, required by fails to assure as suggests that this amendment However, mean, "may” among Bellotti. can Appellees' moots contention that notice stat- things, permission other both to "have to” expeditious bypass ute need not include an "exрress[] purpose expecta- and procedure, as Oklahoma now has consent ” Dictionary tion .... Webster’sThird New statute. We need not amendment, Int’l decide whether the (1986). Thus, Act which was not Oklahoma could statute as below, challenged by permission properly mean either that courts have before disposition prompt they expect- us. Because our this case decisions or that are does depend merely prompt ed not on whether the statute is to issue decisions. " consent, requires fairly possible, statutе also notice and '[w]here courts should con- dispositively because we danger do strue a statute address to avoid of unconsti- (“Absent 110 S.Ct. demonstrated to our decision. points are critical
Two defiance, pattern a State appeal. Nova abuse of this posture First is the its judges face that will follow mandated expect Act challenging the Oklahoma Manning, procedural requirements.”); that there presented no evidence and has (“State bound, judges just at 270 been, any impermissible F.3d is, or will be has are, to argues judges uрhold as federal Con- petitions. delay “[bjecause and to follow judicial bypass proce- stitution the United States of the United opinions deadlines States does not contain dure Court.”); Stewart, 120 rule, Falcone v. young must wom- the court cf. (9th Cir.1997) (“[A] delays in ob- defendant potentially unlimited en face true, legitimately expect that the courts will this can taining their abortions.” Were law.”), about the follow vacated other would have serious concerns we procedures. grounds, constitutionality U.S. (1998). Act, Oklahoma support to no L.Ed.2d
But Nova
еvidence
us,
face,
it
complies
before
on its
with Bellotti
scenario. On the record
prompt
will
Oklahoma courts to issue
nothing
suggest
there is
provide
expeditious ap-
other
than
decisions
anything
act
peals, all in
with the best inter-
to serve
accordance
“prompt[ness],”
“without
pregnant unemancipated
uneman-
ests of the
minor.
the best interests
just
minor,”
they
do
that.10
“expedition],”
presume
as We
cipated
requires.
the statute
acknowledge that
this decision con-
circuits,
Second,
of our sister
relatedly,
the absence
flicts
several
suggested
presume
who have held or
contrary,
to the
evidence
require
specific time
law. See Akron
involvement
laws
that courts will follow the
Health,
to satisfy
U.S. at
frames
Bellotti’s standard. See
Reprod.
Ctr. for
"
Health,
Reprod.
tutionality.’
view of labor commission decisions "shall
Akron Ctr. for
summary
(quoting
in a
manner
shall be
heard
497 U.S. at
cases”);
given precedence over all
civil
City
other
Kan.
v. Ash-
Planned Parenthood Ass'n of
*7
68, 2885(B)
476,
2517,
("Appeals
493,
§
taken
Stat. tit.
croft,
Okla.
462 U.S.
Powell, J.)).
equalization
of
all
boards
shall
[tax]
from
(opinion of
L.Ed.2d 733
they
precedence in the court to which
have
merely permitted courts to issue
If the statute
taken.”);
70, 7-101(C)(4)
§
decisions,
Stat.
are
Okla.
tit.
certainly
prompt
it
run the
petitions
(appeals of school board annexation
offending
requirement of as-
risk of
Bellotti’s
given precedence
all
civil
644,
be
over
other
"shall
expedition.
suring
443 U.S. at
sufficient
Const,
V,
matters”);
art.
see also Okla.
"may”
construe
1303
state courts
sumption
confi-
the Oklahoma
“[a]n
requirements,
cation
§ 1-
protect
the constitu-
shall
available.”
will follow law and
appeal
be
dential
740.3(D).
rights of the citizens of
tional
Oklahoma.
(“Nova”) asserts
Systems
Health
63,
faciаlly
§ 1-740.3 is
tit.
Okla. Stat.
Although
weight
authority
favor-
it fails
out
to set
unconstitutional
me
I
ing
position gives
pause,
Nova’s
some
definitive,
time-frame within
concrete
ultimately agree that Nova has not
com
proceedings must be
likelihood of
demonstrated
substantial
time-frame,
concrete
pleted.
Without
on the merits.
outcome is
success
comply
fails
1-740.3
argues,
by
compelled
procedural posture
with
Court’s directive
case, i.e.,
facial
on a
a blunt
attack
assure
judicial
proceedings “must
See Planned
legislative
state
enаctment.
issue,
a resolution of
Casey,
Pa. v.
505 U.S.
Parenthood
Se.
follow,
completed
will be
appeals that
2791,
833, 895,
L.Ed.2d 674
anonymity
expedition
and sufficient
with
repro-
law
(holding
regulating
that a
an
opportunity for
provide an effective
on its
rights
ductive
is unconstitutional
v.
to be obtained.” Bellotti
abortion
if,
“in a
fraction of
cases
large
face
3035,
622, 644,
Baird,
99 S.Ct.
443 U.S.
relevant,
oper-
is
it will
which [the statute]
(1979).1
is
Nova’s assertion
L.Ed.2d
obstacle to a woman’s
ate as
substantial
Parenthood
support.
Planned
without
abortion”);
L.
undergo
choice to
Jane
1024,
Lаwall,
v.
180 F.3d
Ariz.
S.of
(10th
v.
F.3d
Bangerter, 102
(9th Cir.1999);
Med.
Causeway
1028-32
Cir.1996)
Casey’s
(holding that
undue bur-
F.3d
1110-11
Ieyoub,
v.
Suite
challenges
to facial
applies
den standard
(5th Cir.1997),
grounds
on other
overruled
regulating reproductive rights).
laws
Foster,
n.
F.3d
Okpalobi
in a
step
each
simply
Bellotti
Cir.2001);
(5th
v. Hartigan,
Zbaraz
see
completed
bypass proceeding “be
(7th Cir.1985);
1532, 1539-41
provide
sufficient
Gynecologists
&
Obstetricians
Am. Coll. of
for an
opportunity
effective
283, 296-97,
F.2d
Thornburg,
at
tive termination of a pregnancy. mandating
when faced with a state statute
bypass proceedings priority be given expedition,
be decided and in
complete absence of record evidence mandate, state courts will fail fulfill that MICKELSON, Jennifer J. to impose federal should hesitate Plaintiff-Appellant, upon rigid states a time frame for on acting petitions. Thus, consistent with opinion, the court’s NEW YORK LIFE INSURANCE
I Nova has not carried its conclude burden COMPANY, Defendant- demonstrating definitive, of the absence Appelleе. concrete time-frames 1-704.3 renders Employment Equal Opportunity the statute unconstitutional its face. however, not, Commission, This decision does leave the Amicus reproductive rights unemancipated mi- Curiae.
nors in Oklahoma unprotected. As noted No. 05-3049. above, the outcome this case turns al- entirely most procedural posture United States Appeals, Court of case, i.e., a challenge facial to a state Tenth Circuit. absolutely statute when there no record Aug. 2006. evidence Oklahoma state courts will fail to сomply statutory mandate for ex-
pedition. Any unemancipated young wom- is not expedition who afforded the con-
stitutionally required by the circumstances particular is, however,
of her case free to
proceed to federal as-applied court with an
challenge §to proceedings 1-704.3. Such must, course,
themselves be resolved expedition, so that the federal courts term being dangerous A later gestation, more week things sixteenth all other an earlier than term equal, abortion. being proceeding initiated in gestation require week fifteenth Assuming provider reproductive greater local than one initiated in the only providing services abortions until twelfth week.