Planned Parenthood League of Massachusetts v. Francis X. Bellotti, Etc.

COFFIN, Before BOWNES BREYER, Judges. Circuit COFFIN, Judge. foundation, Circuit and clinic, referral a medical a physician, pregnant and an unmarried mi- appeal from a This is an decision of the nor, on their own behalf on and behalf of for the District of district court Massachu- (all classes certified the district court abstain, Young- setts to on Burford1 PPLM), simply hereinafter brought suit entertaining grounds, from further er2 challenging constitutionality the facial challenging constitutionality suit of a original amended 12S. The defendants § statute, actually imple- Massachusetts Attorney were the then General of Massa- mented, regulates abortions. The chusetts, Bellotti, Francis X. the Commis- requires seeking statute a minor an abor- Health, sioner of Public and the Suffolk parental per- tion to obtain consent or to County Attorney, District representing superior justice suade a of the court that prosecutors as a class. The district court enough she is either mature an make denied a motion for preliminary injunction informed decision to have an or abortion prevented implementa- would have operation is in her that such an best inter- tion of 12S. Planned Parenthood § ests.3 Bellotti, League F.Supp. 215 (D.Mass.1980). I. 1981, In 2. we reversed the district challenge Plaintiffs’ first to section 12S preliminarily court’s decision not to enjoin 1978, began of M.G.L. ch. when requirements sign that a minor a con sought enjoin original version description sent form that included a of the statute. After certification to the Massa- fetus and that she wait for 24 hours after Court, Supreme chusetts Judicial the Unit- signing having the form before an abor Supreme provi- ed States Court struck the tion. preliminary We directed that a in required parental sions that notice of a junction issue. We affirmed the court’s abortion, decision to seek an minor’s enjoin provisions refusal 12S§ granted authority requiring parental consent or by withhold consent even for minors suffi- pass abortions, stating authorization for ciently mature to make an informed deci- undeveloped that “on a record as to the Baird, 622, sion. Bellotti v. 443 U.S. actual judicial approval 3035, (1979)(Bellotti 61 L.Ed.2d 797 procedure, prepared we are not to hold that II). Massachusetts amended 12S to its § its effects will be so deny burdensome as to form, plaintiffs current renewed their process due seeking law to minors to use challenge. We discuss some detail the it.” League Planned Parenthood v. Bel history litigation, relevant of this second lotti, 1006, (1st Cir.1981) year. now in its ninth (footnote omitted).4 1980, plaintiffs 1.In June of 17, 1981, Planned April 3. On PPLM instituted League Parenthood of Massachusetts suit in the Massachusetts Judicial (PPLM), nonprofit counselling defendants, abortion Court the same facially Co., 315, guardians perform- 1. v. Sun Oil 63 S.Ct. refuse to consent to the Burford (1943). abortion, 87 L.Ed. 1424 ance of an ifor she elects not to parents seek the consent of one or both of her Harris, Younger 2. guardians, judge superior or (1971). L.ED.2d 669 shall, department upon peti- of the trial court tion, motion, appropriate (West and after an § 3. Mass.Gen.Laws Ann. ch. 5, 1980, hearing, physician perform 1983), provides authorize a enacted on June judge abortion if said determines that relevant as follows: pregnant capable woman is mature and eighteen pregnant If a is less than woman giving married, proposed informed consent to the years age physician abor- and has not or, perform upon tion if said determines that she is shall not her unless an abortion mature, preg- performance he first obtains both the consent of the of an abor- parents, except upon nant woman and that of her her would be in her best interests. provided.... pregnant If a hereinafter 9, 1981; February issued on eighteen years age 4.Our decision re- woman less has not than parents hearing April denied married and if one or both of her was on 1981. 1984, PPLM filed a more definite state grounds, Arti- on state challenging § ment, contending “the administration I, II, of the Massachusetts X and XVI cles parental/judicial application relief ... of Rights. Injunctive Declaration requirements of 12S ... has vio 22 and 12S became consent April denied rights] [plaintiffs process due ... May On lated April effective on procedures in fact afforded ... complaint to its state PPLM amended constitute an undue burden....” as-applied for the basis add the Judicial reques that and a PPLM, thereafter, Shortly April, in 6. general superintendency Court invoke federal com- moved to amend the statute. implementation power over adding the Admin- plaint, by as defendants trial 16, 1981, istrative Chief Justice of the court of Justice Liacos 4. June On Massachusetts, Court, acting the Chief Justice of the su- as a Supreme Judicial court, department of the trial guidelines perior for propounded single justice, of that superior and the clerk of the Suffolk division proceedings in the handling 12S § department. The Commonwealth had earli- court, the earlier Stand- supplementary to making (We suggested parties. them PPLM court. er ing No. 12-80 of that Order explained grounds by saying that the standing order reproduced that had earlier workings focuses “on the actual opinion. 641 F.2d appendix in an to our practice the statute in as it is adminis- 1025-26.) transferred The state case was judges applied by and clerks.” an tered and Superior Court. Under to Suffolk PPLM referred to an attached article issued then agreed procedure in an order in by Patricia Donovan the November/De- statisti- Morse of Chief Justice Planning Family Per- cember 1983 issue 12S cases are maintained cal records on § describing operation of the spectives, They PPLM. reflect made available to and Massachusetts, bypass processed, statutes petitions the number Island, Minnesota, entitled involved, and Rhode the number length of time courthouse, “Judging Teenagers: How Minors Fare trips minor must make to the a They Seek Court-Authorized Abor- concerning 12S cases. When and other facts § asserted that it relied place in tions.” PPLM then activity has since taken Very little judges “in the actions of those case, superior on which is now on the this clerks, accorded herein and the relief suspended court’s docket. against judges specific relief include years, action 5. After more than two clerks as a class.” class and district court with resumed federal 29, 1984, December, 1983, defendants moved June 7. On conference status judi- the two the action change to dismiss PPLM indicated its intent to classes, characterizing the challenge.5 De cial defendant as-applied the focus to an “dangerous complaint chal- a more definite amended then moved for fendants governance,” suggest lenge to the core of state February, statement to “sit in court is asked which the district complaint. On March ed an amended 5. obtaining days delays of two to four recognized with the conversion The district court common; challenge, referring as-applied being the case into an an abortion sought Memorandum and Order 3) to it as such in its July few authorizations are 1986. minority applicants; 4) any abortions in Massachusetts decrease following makes the In article the author to clinics for visits to be accounted seems concerning of the Massa- points Maine; Hampshire neighboring New chusetts statute: 5) parents not seem to does with consultation 1) superior judges, 10 have re- of 62 helpful; 12S or stimulated be either approximately one themselves and cused rituals, 6) the minors hearings often are for rea- are avoided fourth of the remainder coached, being ''maturity’ dif- being well many hostility; of the lat- sometimes sons of session; judge in a brief ficult to county; sitting in same are ter 2) ends; 1,571 7) applications between for abortion evenings open or on week- are not courts 1983, only and 5 of 7 were denied 1981 and scheduling particular difficulty appeal. minor, on were overturned trips by these denials requires judges or more two

judgment petitioners, on manner which recusals, individu minor information on deciding particular al state sec reported by information legal the volunteer cases,” spectacle “the of panel concerning hostile data on judges being state cross-examined as to out-of-state clinics performing abortions on only deciding their reasons cases minors, Massachusetts data on court case- for their most even casual trial utter loads, psychological trauma, information on gestures” possibility ances and and the of a impacts and other undergoing minors being asked to issue “de proceedings. conduct” for judges. tailed rules of brief, In starkly the issue was de II. scribed: “Can a federal court ever sit as a 11, 1985, February On the district court superjudge an entire system?” over opinion dismissing issued its complaint Then followed the elaboration of five bases “judicial defendants,” as to the the two dismissing complaint as to the justices administrative superior (1) judges: complaint was made of the court and the County Suffolk clerk. actions, or supervisory, individual of the Bellotti, League Planned Parenthood defendants; (2) two there is no case F.Supp. (D.Mass.1985). 608 800 The court controversy, being there no basis for observed that all of defendants’ theories monetary relief and no real and immediate supporting dismissal centered on the foun- plaintiffs; (3) threat there is both an question: dation “whether a federal court adequate superior and a remedy at law may superjudge ‘sit as a over an entire (4) within the system; Massachusetts court ” judicial system?’ state Id. at 803. The there should be abstention under Burford argument court noted PPLM’s that it did Co., 315, 1098, v. Sun Oil 319 U.S. 63 S.Ct. contemplate not specific injunctive relief (1943), Harris, L.Ed. or Younger v. against individual state but rather 37, 746, 401 U.S. 91 S.Ct. 27 L.Ed.2d 669 “a declaration that sys- court (1971); (5) and dismissal can rest on Colo tem ... applied” unconstitutional as and rado River Water Conservation District “injunctive against relief class defendants States, v. United 96 S.Ct. responsible enforcing Section 12S.” Id. (1976), 47 L.Ed.2d 483 dupli- to avoid at 804. litigation. cative The say court went on to that its concern August 8. On PPLM filed its with federalism issues was not “deter- opposition, asserting sought only that it by mined injunctive whether or not relief being implemented strike down a statute Id, against will issue judge.” a state The an unconstitutional by enjoining manner its court deemed that a federalism concern enforcement, injunction against not an vio- triggered was sought the relief lation of rights individual minors’ civil the nature of PPLM’s attack injunction ordering judges state and process through “the which this state stat- contemplated clerks to do prov- better. It ute is administered.” (emphasis Id. at 805 ing being its case the statistical data original). Citing Allen, Pulliam v. gathered under the order of Chief Justice 80 L.Ed.2d 565 Morse, by transcripts, by testimony (1984), objective it characterized PPLM’s lawyers’ panel supplying from a referral “ pro- ‘federal intrusion into the state counsel petitioners. opposi- 12S § ” F.Supp. cess.’ at 805. proceeded tion to contest each of the five comity The court found concerns at two bases of dismissal asserted state. First, noting levels. the particularly opposition With this filed an affidavit strong integrity interest states have in the asserting of PPLM’s counsel inves- tigation judicial systems, of their developed had own id. at information con- cerning legal subject the court saw the matter of need for the volunteer the suit panel, superior as the manner in statistical data on abortions and births, judges process processing petition- statistical data on the and clerks ers, petitions, ages i.e., data as to the an action directed at “maladminis- prohibi- cation of blanket 809-10. It viewed tration.” Id. at Burford operations, against discovery. Accompanying the suit internal focus of superior such as “which raising counsel, setting issues was another affidavit are ‘defacto unavailable’ judges lengthy the table contents of a forth petitions and how abortion hear minors’ facts, listing proposed findings dated process take a Sec- long should a clerk 16, 1986, compiled five-week May after a Therefore, Id. at 810. petition.” tion 12S parental notification/judi- in a similar trial Court, reasoned, Judicial it case, Minnesota, bypass Hodgson cial should supervisory power, with its own (D.Minn.1986).7 F.Supp. 756 In that remedi- possibly take hear the evidence trial, had judges the six Minnesota who al measures. percent judicial bypass heard inquiry arose second level of The court’s testified, any posi- none identifying cases it called institution of what from PPLM’s averred tive effects law. Counsel proceeding.” ongoing parallel “an delay PPLM’s evidence would federalism Id. It noted first that at 805. data, evidence of the form of statistical recognize a requires “that courts available, judges actually the number ability to decide identical judiciary’s including plaintiffs “are rea- evidence that sys- ongoing in an case in the state issues declining appear sonable before added, obviously at 806. It then tem.” Id. judges.” No number additional small concerned that PPLM’s state suit aware need- discovery from was said to be issues but only state constitutional ed. “[tjhere is possible, that amendment was 11,1986, July district court issued On that Planned Parenthood question opinion, recapping the substance a second under constitu- arguments the federal raise opinion. pursu first It reasoned that of its well_” The court Id. tion as at litigation against non-judicial ing the absten- concluded that therefore “Burford open the door to the defendants would case,” fitting for this id. particularly tion is record,” that intrusive factual and “same 808, fearing refusing to abstain at “a detailed much more PPLM envisioned perilously Court close “would steer this simple decla order” than a administrative monitoring ‘a form of It saw the unconstitutionality. ration antipathetic to functions that is state court ” involving opera only the internal issues as principles comity.’ Id. established Littleton, 414 U.S. concluded that of the state and (quoting 812 O’Shea tions 669, 501, 679, proper 38 L.Ed.2d abstention was still Burford (1974)). ground it added To this of decision course. Younger v. Har on the basis of abstention PPLM to reconsider was A motion ris, 27 L.Ed.2d 401 U.S. S.Ct. 4,1986, later, April year on denied. Over recognized not (1971). It that this was moved to dismiss Commonwealth case, it was Younger since typical remaining defen- complaint state-initiated being asked to interfere with or, alternative, protective for a in the dants court felt proceedings. But the judicial discovery barring any PPLM from order being asked to interfere it was judicial former defendants. involving the v. Turn practices, as in Parker state court prior principally on the court’s It relied Cir.1980) (affirming (6th er, 626 F.2d opposed in a PPLM the motion decision. plaintiffs where appli- court’s abstention criticizing the district lengthy memorandum require- bypass findings, and the proposed occupying over 139 unconstitutional 7. The too, it, ranging, including interdependent be the effect must pages, wide were ment so delay, delay dangers of appeals on and the af- panel of the law A of the court struck. deterrence, effects of Cir.1987). the traumatic (8th the effect deci- The F.2d 1191 firmed. 827 law, parent the lack of notification and the positive subsequently vacated opinion and were sion family contribution communication withdrawn, the district and decision of decisionmaking. or minors’ Cir.1988) (8th 853 F.2d 1452 reversed. court (en eventually held district Minnesota The banc). requirement parent notification sought compel Commission, afford Finance process contempt proceed- (1st due in future Cir.1988), we take note of “the Su ings). preme Court’s admonition that ‘abstention from the jurisdiction exercise of federal

hi. rule,’ exception, not the Moses H. Cone Hospital Memorial Mercury Construc We have set forth in detail the back- Corp., ground claims, party characterizations [103 claims, (1983) 74 L.Ed.2d amendments, (quoting Colo interpreta- 765] River, 424 rado U.S. at 813 sought implications tions of the relief S.Ct. at [96 1244]).” Indeed, thereof, exception and disavowals and is further clarifications of PPLM. described We have done so Colorado River as “an ex because our analysis traordinary proper exception we deem to narrow what to the approach duty of a only to abstention can be District Court adjudicate made light background controversy properly in all its confu- before it.” 424 U.S. sion, complexity, stridency. 96 S.Ct. at 1244. begin analysis by clarifying We posed abstention issue here is wheth- issues before us. We view the district litigation er the necessarily implies an in- court’s decision to abstain under volvement the administration of the in- Burford implicating separate comity three con- ternal affairs of the Massachusetts courts First, basic, cerns. and most was the con- so unseemly for a federal court as to en- cern plaintiffs’ about the nature of com- principles croach on comity and federal- plaint. The district court was troubled not issue, ism. As we see the the word “neces- only by prospect improper of an reme- sarily” importance. is of critical It flows dy, entirely what it saw as an im- principles from these that abstention is the case, proper seeking one exception, not the rule. This means to us process through review of the judge, that a federal being while as sensi- commonwealth has chosen to administer its important tive to state interests and as statute. The core concern here is a federal wary intruding in internal state affairs responsibility court’s usurping to avoid case, as was the district court in this will authority supervise state’s its own ad- also legitimate endeavor to see if the objec- body, ministrative in this case the state litigation pursued tives of the can be with-

judiciary implements regulations as it of treading out on those state interests and minors’ abortions. internal pur- affairs. If cannot be so sued, invoked; abstention Second, should be if court seemed concerned managed the case can so be that about the fears judiciary intrusion into the state unseemly dispelled, intrusion can be that ab- plaintiffs’ would occur because stention should be refused. discovery and other develop efforts to Although factual record. expressly short, In a federal has a difficult stated, we surmise a realistic fear on the play. institutional role to He or she cannot plaintiffs court’s that would seek to safely base a decision on how party either complaints document indiscrimi- characterizes case but must do an inde- nately questioning subpoenaing Massa- pendent Otherwise, analysis. abstention judges chusetts in pursuit of useful testi- decisions could be based on the rhetoric mony. Minnesota, In Hodgson case in rather than on the advocate essential plaintiffs relied, on judges presented which suspect nature of a case. In this case we testimony (apparently extensive voluntary) happened. have In retro- support Third, plaintiffs' case. spect sides seem both to have contributed. pointed ongoing litigation to the Although general PPLM objec- framed its in state “parallel” it deemed a which terms, alleging tives conventional proceeding. “procedures in fact constitute ... an undue As we opinion (plaintiffs’ did our recent in Bath burden” more definite state- ment) Hospital Memorial Maine Health Care and that the “focuses on continuances, accessibility, delay, prac- cluding workings of the statute actual applied by length, the demeanor of and the it is administered tice grounds petitioners. trauma of (explanation of clerks” judges and held out amending complaint), it also —The statistics on number of “specific relief possibility denials, applications, initial and reversals clerks as a class.” as a class and judges appeal readily seem to be available. later, in its motion to re- Although PPLM opposition PPLM’s to defendants’ opinion, first the district court’s consider represented first motion to dismiss by disclaim- its motion to amend “clarified” investigation had been made in all of the equitable relief ing intention to seek supporting Ten above areas. exhibits were this came after defendants’ against judges, might attached. The kinds of evidence that superheated motion to dismiss. expected as-applied the asserted con motion, held In the Commonwealth stitutional attack were further revealed having a federal court specter out the opposition PPLM’s to defendants’ second dismiss, i.e., hos- judges were so proposed determine which find motion unavailable, preside in the Hodgson ings de facto tile as to be fact submitted case. of state cross-examinations over offerings PPLM’s basic ob- show its “their only their reasons but even to not holding is achieve a jective gestures,” casual trial utterances most process obtaining Massachusetts 12S§ mandating specific injunction and issue “an is, minors’ consent for abortions its actu- Superior rules of conduct and detailed workings, This al unconstitutional. reme- judges.” Court dy permissible pursue is a one to in federal paradigm this case is a court. Indeed helped have retrospect In it would action, rights case the kind of class civil sound decision court to make a abstention Challenging that characterizes our era. had, as-imple- PPLM at the outset of its if question approach to the sensitive state’s attack, given court in more mented regulating of minors within abortions revealing a clearer idea of what terms set Court is the constraints Nevertheless, the court case would be. genre as those of the same broad of cases its first decision available to it before had rights, public housing, involving prisoners’ kinds of issues that indications of the testing. In desegregation, drug all of evidence raised and the nature of would be these, court finds viola- whenever a federal adduced: that would be rights, tions of constitutional whether question delay, the court —On the laws and individual state officials steady accumulation of aware of the ordinances, In state interests affected. processing statistical data on cases, way in virtually such all petitions, under Chief Justice cases is affected. state courts treat future This available Morse’s order. would be proceeding; there succeed, to PPLM the state occur plaintiffs If what will insuperable obstacle would seem to be ongoing intermeddling an not in instant case. availability to its un- judiciary prohibition a of an state but said in Bath As process. we article attached constitutional —The Donovan Hospital, 853 F.2d at 1013: supporting its mo- Memorial PPLM’s memorandum data was to amend indicated that tion interference The threatened [in Burford concerning use of the 12S available not consist § other such did cases] minorities, rise in by and the procedure threat the federal merely of the neighboring in sys- clinics the entire state the use of abortion might court declare unconstitutional; states. of risk is tem that sort one attacks a state law lawyers present whenever volunteer se- —The reservoir of grounds in federal pan- on constitutional court_ through lawyers’ referral cured Rather, view, absten- themselves, in our el, to minors in addition line of cases rested in the testimony concern- obvious source Burford proper administra- upon in- the threat to proceedings, in ing experiences 12S § regulatory litigation state assess the essential nature of the tion of a constitutional system. proper objectives The threat was that the federal to see whether its could might, court the context the state attained without the intrusion into inter- be scheme, parallel, regulatory operations create a ad- judiciary. nal the state We ditional, ‘regulatory reason, record, federal review’ why see no on this this mechanism, existence of which would managed. lawsuit cannot be so have in We significantly difficulty increase the of ad- mind our observations another case regulatory ministering the state scheme. where a district had demonstrated sensitivity his acute to state concerns: What PPLM seeks here is not for the fed- [Fjederal frequently courts are called eral court to tinker with Massachusetts’ abortions, upon weigh strength regulating minors’ of state inter- scheme ests, for the court to dismantle it. and the care with which the state but has crafted the means to vindicate those recognize parties discuss the We that the interests, against resulting burdens holding possibility that unconstitution- rights. on individual We do not think it ality specific, rest on a remediable could fairly doing they can be said that so deficiency. Defendants raise the alarum consistently have either undervalued or finding might open that this sort overvalued the state interests at issue. imposition of intrusive rules of door to The efforts of the district court this view, however, conduct. Our is that identify possible case to sources of state- situation, the defect would such a be friction demonstrate an acute by imposing not the federal court remedied sensitivity to the federalism concerns un- legisla- the Massachusetts will derlying Pullman. We are confident itself, just step took such a ture sensitivity that this same will enable the amending in 1980. 1980 Mass.Acts. remand, assessing court on to focus on ch. 240. being the relevant conditions without dis- Regarding comity raised concerns tracted the court determines to what possible discovery testimony superior extraneous considerations and over- offerings evidentiary PPLM’s assumptions. broad managed demonstrate that case can be Roache, (1st Guiney v. inappropriate so as to avoid intrusions into Cir.1987). operations judi- the internal of the state whole, ciary. plain- As a small briefly giv We address the third reason likely testimony seek to tiffs will introduce en the district court for its Burford who, judges though as to the number of decision—the existence of state abstention having from recused themselves proceedings, might wherein PPLM cases, past so hostile have been complaint amend its and raise its federal clients avoided attorneys and their minor present issues. The fact is that at appears evidence at best rele- them. Such proceedings and federal are not iden state delay processing petitions, vant to fact most, parallel tical. At is—each proven directly by statistics. It that can be on the of its forum. As we bottomed law appears plaintiffs can make their case stated, recently simple “the existence have subjecting any to the without proceedings parallel is not a rea rigors discovery, and of extensive without special There is no circum son abstain. indiscriminately summoning them into here, special stance such as a federal statu court.8 forum, favoring single tory policy River, there was Colorado U.S. at hold that the district court We therefore obligation 817-21 S.Ct. at Me gave weight to its to Bath insufficient [96 1246-48].” sad inappropriate questioning be where other sources of state 8. We do not hold that all recognize judges open inappropriate. Yet we is available. We leave it to the district proceedings questioning when, if, in federal presenta- state the court to determine comity regarding concerns, raises their official conduct oversteps plaintiffs’ tion of case the boundaries 24, 7, Sparks, 31 n. Dennis v. 449 U.S. propriety. of 7, 183, (1980), 101 n. 66 L.Ed.2d 185 S.Ct. 188

467 challenges, statutory not and thus the ac- 1015. Where 853 F.2d at Hosp., morial remedy invalidating the ceptable and federal claims of statute bifurcates state plaintiff O’Shea, forum for a federal not 414 at preserve order to was available. U.S. 500, 678; Parker, as envisioned Pennhurst federal claims 94 S.Ct. at 626 F.2d at 6. Halderman, Hospital v. challenges School & instant the State case statute 900, 67 79 L.Ed.2d 104 S.Ct. 465 U.S. This is therefore not a unconstitutional. availability the of (1984), weighing threatening ongoing case interference with ground for forum as an additional state proceedings practices. or state particularly inappropri seems abstention Ramos, F.2d Cuesnongle 835 v. ate. See IV. Cir.1987).9 1486, 1497(1st important More abstain on if a federal court could ly, juncture At this take note of the we proceed that a state possibility basis challenge to branches of PPLM’s two present made a federal ing could be related, One, 12S. as we have is § recog issue, “exception” the abstention procedures in fact claim “The afforded quickly would nized River Colorado spe an undue This ... constitute burden.” Guiney, metamorphose into the rule. See claim has been of the case since cific F.2d 1079. at filing of more March 1984 with the Young on the basis As for abstention other claim was definite statement. The Harris, er v. tangentially year referred later in an (1971), real district court L.Ed.2d 669 supporting a motion affidavit counsel pro was no state-initiated ized that there for reconsideration the district court’s civil, enjoin. ceeding, criminal Cf. complaint against judi dismissal Simopoulos Virginia v. State Board of This the contention cial defendants. was (4th Cir.1981) Medicine, F.2d 321 12S “cannot be shown defendants that § light of (Younger appropriate abstention actually goal served have encour proceed license revocation concurrent state yearA aging parental after consultation.” of doc ings prosecution on criminal based that, June counsel’s affidavit regulation). for violation abortion tor supporting opposition to defendants’ mo Rather, assump it on the based decision remaining case to all to dismiss the being asked to interfere tion that it was defendants, PPLM elaborated on this con practices. As dis directly with state court asserting that “defendants will tention above, such interference will cussed carry proving their unable to burden be remedy sought. here occur because actually furthers the statute ... Thus, erroneously relied the district court By the time of compelling state interests.” Turner, (6th F.2d Cir. Parker on argument, this contention received oral 1980), court was asked where equal greater prominence to that least “the manner in which effect monitor argument. given the “undue burden” contempt juvenile judges conducted assume, deciding, that We shall without cases,” hearings non-support id. workings issue whether actual Littleton, 414 O’Shea really compelling state’s do serve the (1973), where 38 L.Ed.2d timely raised. properly and interests was it expected see to the federal court plaintiffs’ assertion is that The thrust of judge stopped magistrate and county that a op- two-parent requirement consent arbitrarily, practices setting bonds promotes than contradicts rather eration sentences, and imposing harsher than usual Plaintiffs as- communication. intrafamilial trials for requiring payment jury black minor fears that many cases a sert charac plaintiffs. Under defendants’ disapprove of her decision parent one will litigation, terization of the nature re- Because to seek an abortion. accepted by the these authorities the minor parents, of both quires consent these cases were might applicable. But available, this would militate forum were say availability a state This not to against abstention. if claims is irrelevant: forum for federal parent therefore to tell passages that, elects neither of her These indicate least predicament, judicial ap- and instead seeks part, preservation it is the authority proval. According argument, to this a one- parent of each compelling that forms the parent requirement consent would more interest in regulating minors’ abortions. successfully advance the state interests This theme has resounded repeatedly in reducing upon while the burden minors’ City Akron v. Akron Repro Center rights. constitutional Health, Inc., ductive 462 U.S. (1983), S.Ct. 76 L.Ed.2d 687 Planned hold, however, operational We that an Ashcroft, Parenthood Association v. challenge inadequate based on an state in- 103 S.Ct. 76 L.Ed.2d 733 open terest is not to PPLM. It seems clear (1983), Matheson, and H.L. v. 450 U.S. us, rereading after a careful of Bellotti (1981). 67 L.Ed.2d 388 II, precise a decision that dealt Appeals Circuit, Court of Eighth for the procedure us, majority now before that a sitting en dealing banc and two-par with a the Court has made a clear policy and final requirement ent notice precisely cov two-parent declaration consent —-not ered Bellotti // —held that these deci procedure compelling serves the state in- sions had empirical foreclosed an attack. encouraging terests of a mature decision Hodgson Minnesota, regarding encouraging paren- abortion and (8th Cir.1988) (en banc). 1462-65 tal involvement. We agree. guiding parents role of up- in the [T]he bringing justifies of their children limita- The Court could so broadly identify a tions on the freedoms of minors. The compelling state interest or so tentatively commonly protects State youth from procedures validate the used to further governmental adverse action and from that interest pronouncement that its on a immaturity by requiring paren- own facial would not foreclose op- tal consent to impor- or involvement in challenge. case, erational In such a tant decisions minors. But an addi- Court’s initial might determination open important justification tional and more to revision based on subsequently mar- parental for state deference to control empirical shalled evidence. We do not over children is that child is not “[t]he think such a case is before Specifically us. State; the mere creature of the those addressing two-parent requirement, the who him nurture and direct his destiny II plurality Bellotti indicated: right, coupled high have with the persuaded that, We are not gener- as a duty, recognize prepare him for rule, al requirement obtaining obligations.”

additional parents’ both consent unconstitutionally

burdens a right minor’s to seek an abor- Unquestionably, many parents there are tion. ... At least com- when the peting together pregnant theories and the living about the most minor effective home, way parents to fulfill their both the father central and mother assisting role in have an way normally their children on interest —one support- responsible helping adulthood. ive—in While we do determine the course pretend any special that is daugh- wisdom on this best interest of a subject, ignore every pregnant ter— As we cannot that central to minor is enti- theories, tled in the many go first deeply directly these instance to root- ed in the court for history tradition, our Nation’s determination prior notice, parental is the without parental implies belief that the role consulta- tion, consent, general substantial authority measure of rule with over respect parental one’s children. consent does not un- duly right. burden the constitutional 637-38, (cita U.S. at 99 S.Ct. at 3045 omitted) tion and footnote (quoting Pierce 443 U.S. at 99 S.Ct. at 3051. Plaintiffs Sisters, v. Society 510, 535, 45 interpret language, as did the district 571, 573, (1925)). 69 L.Ed. 1070 court in Hodgson, open ques- to leave language the of the district court may require the con- use a state tion whether only apparently approved by has an the court parents Hodgson, one of both when sent banc, opera- minor. read en the success raising appeals the We of of an role active II, however, hold a state requires proof that attack context tional this Bellotti long so parents’ provide judicial consent may require “systemic both a failure a of judicial bypass is available. proper option expeditious, prac- a in most bypass as the F.Supp. manner.” 648 at 777. tical support interpretation our find for We that one Powell’s directive where Justice giv- consents, support his or her be

parent V. weight” in dispositive, if "great, en may proceed conclude this case We that 443 U.S. at proceedings. consent judicial unduly interfering with the Massa- without This at n. 29. 649 n. judicial system, chusetts that absten- majority of the Court10 suggests a inappropriate either tion is therefore under judicial bypass cures the envisioned line Younger of cases. the Burford two-parent possible the the overbreadth judgment vacated and the case is The is, requirement, application consent proceedings. remanded for further raising parents are not where both active exemption in Coupled the the child. BREYER, Judge (dissenting). Circuit divorced, parents, for non-custodial pri- appellants’ present, I here are not As understand interests believe we by mary to the Massachusetts abor- attack envisioned subject to broad statute, it does not call tion-consent plaintiffs. abstention, court but neither does it claim, however, at PPLM’s other cannot hearings. require further district as a matter juncture be dismissed litiga- requires statute an The Massachusetts As we indicated earlier in this law.11 seeking tion, an ei requirement unduly burdensome unmarried minor abortion “a parents’ if not her consent or operation will struck down even ther obtain be judge, permission of a who must face.” Par- clearly invalid on its Planned obtain Bellotti, grant permission if he finds either that League enthood capable giving (1st Cir.1981). It as to the “un- minor is “mature consent,” or that an ... cal- informed “abortion due of the constitutional burden” in her Mass.Gen. left interests.” that Justice Powell Bellotti II would best culus (West 1983) (em Ann. ch. operational open possibility of a future Laws 12S§ added.) plaintiffs’ challenge.12 grant phasis Supreme Court, bur- We Baird, Bellotti unconstitutionality den to demonstrate 443 99 S.Ct. 3035, 61 (1979) (Bellotti is a one in the after- applied considerable L.Ed.2d 797 II), II wrote that of the Court’s indication in Bellotti such a math statute is constitutional. But, facially appellants More argue such statute is valid. now the Court wrote frustration, discomfort, and this without occasional than the benefit of a record that To would have to be shown. show inconvenience would how such a statute worked in garnered support lenge. have directed in opinion Plaintiffs’ efforts been II 10. No in Bellotti However, addressing majority proceedings Justice of the Court. toward absten- recent go clear dissent makes it that he would challenges. White’s are not confident that We justices joining Justice farther than the three plaintiffs hope to record extent factual upholding regulations of minors’ Powell abortions, fully develop We has been defined. trial including parental require- consent whether, is, will express once it it no view as to opin- We view Justice Powell’s ments. therefore as matter of law. be sufficient majority representing the views ion present purposes. Court 645 n. 12. See (“In as to absence evidence n. 25 pro- pretrial We note that to date extensive proceedings under ceedings have on the nature of focused pro [judicial we must assume 12S ... (shifting § ceedings operational a facial claim challenge), from defendants, confidentiality, provide lack will identity burden, speed]”). procedural chal- federal suit’s relation to the state court compile practice. They Opinion, a factual Panel Appellants want See n. 6. court and findings record in the district obtain believe that of this sort will show view, that, in their findings fact will show approval that the require- statute’s unconstitutionally that the burdens unreasonably minors, statute ments intimidate right time, to choose to have an given the of a minor while at the same the over- rate, whelming approval abortion. the statute serves significant ‘screening’ function. panel The would remand this case to permit present appellants the to the evi- Next, one proceed- should examine the appellants hope dence that will lead to ings case, Eighth the Hodgson Circuit findings consequent these a holding Minnesota, F.Supp. (D.Minn.1986), —and of unconstitutionality. reviewing After (8th part, Cir.1988). rev’d in 853 F.2d 1452 establish, facts appellants hope that to I plaintiffs Hodgson The very created the case, would not remand this for I do not plaintiffs kind of factual that record seek facts, established, believe those even if to establish Opinion here. See Panel at could change lead the Court to 463. The hearing district after evi- Bellotti II that such a statement statute is dence, findings made of fact at least as constitutional. plaintiffs plaintiffs favorable to hope found, here to It establish. exam- why To I understand reach this conclu- ple, that the sion, one should first consider precisely what appellants hope experience going to show. to court for major- The a ity’s summary, drawn from an article that produces authorization fear and tension appellants attached their papers, in many Minors apprehen- minors. are they following: indicates to show the wish prospect facing sive about the an au- (1) superior Of 62 10 have thority figure held in who his hands the

recused themselves abortion power proceed [from to veto their decision to approximately and Vi of the re- notifying parents. cases] without one or both mainder are avoided for reasons of Many angry minors and are resentful at hostility; many of sometimes the latter being required justify their decision sitting are same county; complete strangers. before Despite the (2) open evenings Courts confidentiality proceeding, are or many

weekends; difficulty in scheduling having minors resent reveal intimate particular judges requires 2 or more personal details of their lives to these minor, trips by delays with strangers. of 2 to 4 minors Finally, are left feel- days obtaining being ing abortion guilty and ashamed about their life- common; style and their decision terminate their (3) pregnancy. sought Judicial Some mature minors by authorizations are some minority applicants;

few minors whose best interests it is to proceed notifying parents without their (4) Any decrease Massachusetts abor- are so daunted proceeding tions seems to be accounted for they forego bypass option visits in neighboring to clinics New notify parents either carry Maine; Hampshire and upset term. Some minors so (5) parents Consultation does not bypass proceeding consider it seem to be stimulated either more procedure difficult than medical helpful; Indeed, itself. anxiety resulting (6) hearings rituals, are often from bypass proceeding may linger coached, being minors well and ‘matu- procedure until the time of the medical rity’ being difficult in a brief and thus render the latter more difficult session; and necessary. than (7) 1,571 Of applications for abortion be- tween only 648 F.Supp. 7 were at 763-64. The de- district court nied and 5 of length these denials were over- also found that the “effective appeal. turned on delay statutory procedure ere- [that abortion, many over a decision to have an or more” “veto" may reach week ated] judge may review a decision during It at 765. found Id. cases. permission (though judge may withhold 3,573 judicial approval period, out of one if is immature and the only the minor abor- courts, peti- in Minnesota filed petitions interest). her tion is not in best decision, 9 before tions were withdrawn 633-51, Powell 3042-52. Justice denied, 3,558 granted. Id. were were very specifically stated that statute conclusion The district court drew factual large “satisfies constitutional standards here; plaintiffs urge it said of the sort that part,” though it “falls short two re- to serve the State’s statute “fails 651, 99 spects.” 443 U.S. at at 3052. fostering intra-family interest asserted respects” present These “two are not now pregnant mi- protecting communication and (amended) in the statute before us. nors.” Id. at 775. perfect- I conclude that the matter is not point Hodgson about is important The because, footnote, is ly clear. That in a Despite court did next. these what the following: Justice Powell added the findings, say the the court did statute Supreme take Intervenors issue with the (except two re- was unconstitutional judicial Judicial Court’s assurances that present purposes). spects not relevant for proceedings provide necessary will the Rather, court said that the stat- the district procedural confidentiality, of lack bur- reason Its was ute was constitutional. den, speed In of resolution. the Court had indicat- simply Supreme that the any opera- absence of evidence as to the II and Planned Parenthood ined Bellotti proceedings tion of under Ashcroft, Association Supreme ... we must assume that the (1983), that stat- 76 L.Ed.2d judgment Judicial Court’s is correct. (here in Hodg- at sort issue utes the 645 n. 99 S.Ct. at n. 25. son) are constitutional. footnote, however, This seems to me to banc, Circuit, sitting Eighth The en held challenges to refer to the manner which constitutional. that the entire statute was statute, implements Massachusetts its vote) (by a It reversed the district divided whether, example, procedural for its rules findings unconstitutionality court’s adequate (perhaps) whether the respect special parts to two statute. And, practice. courts follow them in these I can no indication that find brought, challenges appropriately seem appellate disagreed that with the dis- instance, the first before the Massachusetts about the statute’s consti- trict court basic footnote, view, my does not courts. tutionality. refer to a to statute itself view, my Eighth In Circuit is correct. upon very based the view that the exist- point permitting appellants is There no approval proceeding ence this general prove the facts the stat- to about right improperly the minor’s to burdens they prove, seek to ute’s that say, That choose an abortion. is showing amount to a that court facts that delays than 2 to footnote refers more hearings may many mi- themselves inhibit days, psy- and to burdens other than seeking permission for an nors from abor- chological inherent in the burden fact of tion, hearings days’ involve several proceeding expedi- itself. That even nearly delay, process that the leads to judicial proceedings might take tious sever- approval peti- of minors’ universal very might days, that their existence al point for There minors, tions abortions. is be- likely to intimidate that those most cause, assuming plaintiffs can make such a cope feel intimidated are those least able showing, I not see one could effectively judicial system, still do how all with the holding fairly reconcile a that the statute is un- seem obvious from the outset. would And, open In to leave constitutional Bellotti II. Bellotti had the Court intended may regulate showing type that the possibility II the Court held minors, change of mind about the party, that no third lead to abortions would statute, explicitly parent, may categorical it not have said so such as a have a would constitutional; or, law, was the statute low Massachusetts’ own as embodied least, statute, would have made this Standing Order, footnote in its its Planned apparent. ,also I note possibility more League Parenthood Massachusetts appellants pro- explain nowhere how Bellotti, 1006, Appendix (1st posed showing designed bring factual Cir.1981), and in Justice Liacos’ modifica approval” “judicial system about a that is Order, Standing Panel Opinion significantly intimidating less or more use- Alternatively, at 460-461. lower Massa Yet, opinions ful. Court’s Bellotti II given chusetts courts not have virtually lead me to think it inconceivable legal words these documents constitu the Court believes the Constitution tionally permissible interpretations. Inso requires permit even immature appellants far as raise these kinds of any- minors to choose abortion without (and I I claims must admit am not certain (neither parent’s judge’s) one’s nor consent. so), are still doing the district court degree recognize ambiguity I right light abstain in of the “comi footnote, recognize possibility and I ty” considerations that the district court change that the Court could forth. inappropriate set It seems mind also about this statute. It is true present federal district in the circum records, that factual as in the instance of stance, to hold a hearing fact based on the help school desegregation, pro- sometimes question of whether Massachusetts Yet, duce change mind. before courts systematically violating are Massachusetts’ spend effort, time, the considerable by harassing (e.g., seeking own law minors building resources involved records of abortion) requiring rather than these “legislative specific partic- fact” to the appellants to raise such issues in the state issue, ular case at there be more must proceedings where are they already par reason present than is here to believe ties, thereby leaving to Massachusetts from, law is different about to become Supreme job Judicial Court the of adminis from, what Supreme different Court tering its own system. Middle Cf. previously Otherwise, has stated. it seems County sex Ethics Committee v. Garden expeditious more for simply a lower court Association, 423, Bar 457 State U.S. 102 that, point present out on the state of 2515, (1982) (absten S.Ct. 73 116 L.Ed.2d law, proof change the factual would not appropriate tion challenged because legal Those challenging result. the law procedures discipline of attorneys are appeals, submit to courts of and then “judicial nature”); Vail, Court, v. to the Juidice 430 they the facts wish 327, 97 U.S. S.Ct. 51 show means in their L.Ed.2d 376 statements (abstention (1977) articles, appropri- briefs or appropriate references because chal ate appendices. The appropriate lenged statutory contempt procedures courts can then clear make whether the factual process “through are vin [the state] showing legal make could difference. regular dicates of its This signifi- is not an area the law where system”); Light Louisiana Power & Com cant challenges prior precedent are like- pany City of Thibodaux, v. 79 ly to escape, Court’s attention. (1959) (absten S.Ct. 1058 L.Ed.2d appropriate because eminent domain Finally, appellants, I note proceedings “special peculiar,” district fundamentally raised a dif- “intimately sovereign prerog involvedwith type challenge ferent to the Massachu- ative”); see also River Colorado Water law, setts seem they States, Conservation District United press forcefully somewhat less in this U.S. S.Ct. 47 L.Ed.2d court. In they the district court seemed to (while (1976) say challenging suit state alloca even if the Massachusetts statute constitutional, is itself tion of water is not barred abstention Massachusetts has doctrine, not applied way; its law a “several factors” counsel constitutional say seemed jurisdiction). concurrent federal Massachusetts Insofar as example, correctly appellants’ challenge did not fol- turns interpreta- law, Railroad of Massachusetts tions Co., 312 v. Pullman Texas

Commission of (1941), L.Ed. 971 abstention.

counsels I would affirm these reasons

For district court.

judgment

The STUDENT GOVERNMENT etc., al.,

ASSOCIATION, et

Plaintiffs, Appellants, OF the OF TRUSTEES

The BOARD MASSACHUSETTS, OF UNIVERSITY al., Defendants, Appellees.

et

No. 88-1261. Appeals,

United States Court

First Circuit. Sept.

Heard 21, 1989.

Decided Feb.

As Amended Feb.

Case Details

Case Name: Planned Parenthood League of Massachusetts v. Francis X. Bellotti, Etc.

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 20, 1989

Citation: 868 F.2d 459

Docket Number: 88-1221

Court Abbreviation: 1st Cir.