Nova Health Systems v. Edmondson

F IL E D
United States Court of Appeals
Tenth Circuit

August 25, 2006
PU BL ISH
Elisabeth A. Shumaker
U N IT E D ST A T E S C O U R T O F A P PE A L S Clerk of Court

T E N T H C IR C U IT

NOVA HEALTH SYSTEM S, d/b/a
REPRODUCTIVE SERVICES, on
behalf of itself, its staff and its
patients,

Plaintiff - Appellant,

v.
No. 05-5085
W . A. DREW EDM ONDSON, in his
official capacity as Attorney General
of the State of O klahoma; and TIM
HARRIS, in his official capacity as
Tulsa County District Attorney, and
their employees, agents and successors
in office,

Defendants - Appellees.

A ppeal from the U nited States D istrict C ourt
for the N orthern D istrict of O klahom a
(D .C . N o. 05-C V -0280-H D C )

Sanford M . Cohen, Center for Reproductive Rights, New York, NY (Galen
Sherwin, Center for Reproductive Rights, New York, NY, M .M . Hardwick,
Hardwick Law Office, Tulsa, OK, with him on the briefs), for Plaintiff -
Appellant.

Teresa S. Collett, Special Attorney General for the State of Oklahoma,
M inneapolis, M N (David T. Iski and James D. Dunn, Assistant District Attorneys,
Tulsa County District Attorney’s Office, Tulsa, OK, with her on the brief), for
Defendants - Appellees.

Before M U R PH Y , E B E L and H A R T Z, Circuit Judges.

E B E L, Circuit Judge.

Plaintiff-Appellant Nova Health Systems (“Nova”) challenges the district

court’s denial of its motion to enjoin a recently-enacted state statute requiring

parental notification before a minor may receive an abortion. Specifically, Nova

argues that the statute fails to ensure that a minor’s petition for judicial approval

of an abortion without notification to her parents will be decided with “sufficient

expedition.” As the text of the statute plainly requires prompt and expedited

decisions, and as Nova points to no evidence that the state courts will not meet

these mandates, we hold that Nova has not shown a likelihood of success on the

merits of its action. W e therefore AFFIRM the decision of the district court.

BACKGROUND

Oklahoma recently enacted H.B. 1686 (the “Oklahoma Act” or “Act”), a

statute that, inter alia, requires parental notification before an abortion is

performed on an “unemancipated minor.” 1 H.B. 1686, 50th Leg., 1st Reg. Sess.

1
An “unemancipated minor” is “any person under eighteen (18) years of
age who is not or has not been married or who is under the care, custody and
(continued...)

-2-
(Okla. 2005) (codified at Okla. Stat. tit. 63, §§ 1-740.1–1-740.5). Specifically,

the O klahoma Act requires a physician to notify a parent or legal guardian at least

48 hours before performing the abortion. Okla. Stat. tit. 63, § 1-740.2(A). The

notice must be personally delivered or sent by certified mail to the parent or

guardian’s “usual place of abode.” Id. § 1-740.2(A)(1)-(2). Alternatively, the

parent or guardian may certify in a notarized statement that he or she has been

notified. Id. § 1-740.2(A)(3). 2

There are two ways to bypass this notice requirement. First, notice can be

waived in a case of medical emergency or w here the abortion is necessary to

prevent the death of the minor. Id. § 1-740.2(B)(1)-(2). Second, a court may

authorize the abortion be performed without notice. Id. § 1-740.3. It is this

second bypass procedure— “judicial bypass”— that is the subject of the present

appeal.

The Oklahoma Act provides, in relevant part, that

1
(...continued)
control of the person’s parent or parents, guardian or juvenile court of competent
jurisdiction.” Okla. Stat. tit. 63, § 1-740.1(3).
2
A person who performs an abortion in “knowing and reckless violation of”
the notice requirement commits a criminal misdemeanor and is subject to a civil
action for actual and punitive damages “by . . . person[s] wrongfully denied
notification.” Id. § 1-740.4. Nova claims that staff who assist in an abortion
procedure and the entity (such as Nova) which arranges for the procedure face
accomplice liability under Oklahoma law. See Okla. Stat. tit. 21, § 172.

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 [i]f a pregnant unemancipated minor elects not to allow the notification
of her parent, any judge of a court of competent jurisdiction shall, upon
petition or motion, and after an appropriate hearing, authorize a
physician to perform the abortion if the judge determines that the
pregnant unemancipated minor is mature and capable of giving
informed consent to the proposed abortion. If the judge determines that
the pregnant unemancipated minor is not mature, or if the pregnant
unemancipated minor does not claim to be mature, the judge shall
determine whether the perform ance of an abortion upon her without
notification of her parent would be in her best interest and shall
authorize a physician to perform the abortion without notification if the
judge concludes that the pregnant unemancipated minor’s best interests
would be served thereby.

Id. § 1-740.3(A). The Act does not set forth a definite time frame w ithin which

the decision on the bypass petition must be made, providing instead that

[p]roceedings in the court . . . shall be confidential and shall be given
precedence over other pending matters so that the court may reach a
decision promptly and without delay so as to serve the best interests of
the pregnant unemancipated minor. . . .

Access to the trial court for the purpose of a petition or motion . . . shall
be afforded a pregnant unemancipated minor twenty-four (24) hours a
day, seven (7) days a week.

Id. § 1-740.3(C),(D).

Similarly, although the Oklahoma Act does not establish a concrete time

frame for the appellate court to consider the minor’s appeal in the event she is

denied relief in the trial court, the statute does provide that

[a]n expedited confidential appeal shall be available to any pregnant
unemancipated minor for whom the court denies an order authorizing
an abortion without notification. An order authorizing an abortion
without notification shall not be subject to appeal. No filing fees shall
be required of any pregnant unemancipated minor at either the trial or

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 the appellate level. . . . [A ]ccess to the appellate courts for the purpose
of m aking an appeal from the denial of same, shall be afforded a
pregnant unemancipated minor twenty-four (24) hours a day, seven (7)
days a week.

Id. § 1-740.3(D).

On M ay 20, 2005, the day the Oklahoma Act took effect, Nova filed suit to

enjoin its enforcement. At the same time, it filed a motion for a preliminary

injunction with a request for a temporary restraining order, arguing that the

judicial bypass provisions were unconstitutional because they failed to specify a

time frame within which minors’ bypass petitions must be decided. Nova argues

that the lack of time limits will increase the medical risks associated with abortion

procedures. Specifically, Nova claims that the “potentially unlimited” delay a

minor faces in receiving judicial approval of her request to proceed without

notification could delay her abortion into the second trimester, in which case she

would have to undergo a different procedure. The delay could also result in the

pregnancy progressing past the point which Nova provides abortions, 3 meaning

that the minor would have to travel “great distances” to receive her abortion,

further increasing the medical risks of the procedure. 4

3
Nova provides abortions through the 17th week of pregnancy.
4
Nova currently refers women who are past the gestational limit at which
Nova will perform an abortion to Little Rock, Arkansas; W ichita, Kansas; or
Springfield, M issouri.

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 After a hearing, the district court denied N ova’s motion for a preliminary

injunction, finding that Nova had failed to demonstrate a need for emergency

relief. Nova timely appealed.

D ISC U SSIO N

I. Standard of R eview

“‘[A] preliminary injunction is an extraordinary remedy, [and thus] the

right to relief must be clear and unequivocal.’” Schrier v. Univ. of Colo., 427

F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc. v. Visa USA , Inc., 936

F.2d 1096, 1098 (10th Cir. 1991)). 5 In order for a party to be entitled to a

preliminary injunction, that party must show

“(1) he or she will suffer irreparable injury unless the injunction issues;
(2) the threatened injury outweighs whatever damage the proposed

5
In O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d
973 (10th Cir. 2004) (en banc), we held that certain “disfavored preliminary
injunctions” require a movant to “satisfy a heightened burden.” Id. at 975. One
such “disfavored” injunction is an injunction seeking to “alter the status quo,” id.,
generally thought of as “‘the last peaceable uncontested status’ existing between
the parties before the dispute developed,” 11A Charles A. W right, et al., Federal
Practice & Procedure § 2948.
The parties do not contend that Nova’s attempt to enjoin this newly enacted
statute should be subjected to this heightened standard. W e therefore express no
opinion on the question of whether such an injunction should be thought of as
“altering” or “preserving” the status quo. In any event, the result of our decision
would be the same under either the normal or heightened standard.

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 injunction may cause the opposing party; (3) the injunction, if issued,
would not be adverse to the public interest; and (4) there is a substantial
likelihood of success on the merits.”

Id. at 1258 (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th

Cir. 2003)) (alterations omitted). 6

W e review the district court’s denial of a preliminary injunction for an

abuse of discretion. Schrier, 427 F.3d at 1258. “A district court abuses its

discretion where it commits a legal error or relies on clearly erroneous factual

findings, or where there is no rational basis in the evidence for its ruling.” D avis

6
Nova correctly points out that we have “adopted the Second Circuit’s
liberal definition of the ‘probability of success’ requirement.” Heideman, 348
F.3d at 1189 (quotations omitted). Generally, “where the moving party has
established that the three ‘harm’ factors tip decidedly in its favor, the ‘probability
of success requirement’ is somewhat relaxed” and “the movant need only show
questions going to the merits so serious, substantial, difficult and doubtful, as to
make them a fair ground for litigation.” Id. (quotations, alterations, emphasis
omitted). However, we have also adopted the Second Circuit’s qualification on
this standard that “‘where a preliminary injunction seeks to stay governmental
action taken in the public interest pursuant to a statutory or regulatory scheme, the
less rigorous fair-ground-for-litigation standard should not be applied.’” Id.
(quoting Sw eeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993)) (alterations
omitted). Thus where, as here, the plaintiff seeks to enjoin the enforcement of a
statute, a showing that the questions are “fair ground for litigation” is not enough;
the plaintiff must meet the traditional “substantial likelihood of success” standard.
See Statharos v. New York City Taxi and Limousine Comm’n, 198 F.3d 317, 321-
22 (2d Cir. 1999) (refusing to apply “fair ground for litigation” standard to
request to enjoin city agency from enforcing regulation promulgated pursuant to
city charter); Union Carbide Agric. Prods. Co. v. Costle, 632 F.2d 1014, 1018 (2d
Cir. 1980) (“W hen Congress authorizes or mandates governmental action that is
in the public interest, more than a ‘fair ground for litigation’ must be shown
before the action will be stopped in its tracks by court order.”).

-7-
v. M ineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (citations omitted). Although

either an error of law or an error of fact may constitute an abuse of discretion, w e

review the district court’s findings in these two areas under different standards;

“[w]e examine the district court’s underlying factual findings for clear error, and

its legal determinations de novo.” Id.

II. A nalysis

The district court found that Nova failed to show any of the four elements

necessary for a preliminary injunction to issue. W e agree with the district court

that Nova has failed to show a substantial likelihood of success on the merits, and

thus we affirm the district court’s order on that ground without reaching the other

three factors. See Utah Gospel M ission v. Salt Lake City Corp., 425 F.3d 1249,

1263 (10th Cir. 2005) (affirming district court’s denial of preliminary injunction

because plaintiffs failed to demonstrate likelihood of success on the m erits).

In Bellotti v. Baird, 443 U.S. 622 (1979), the Supreme Court considered a

statute that required the consent of both parents before an unmarried minor could

obtain an abortion. Id. at 625. In passing on the constitutionality of the statute,

the Court explained that the minor must be provided an alternative judicial

procedure whereby authorization could be obtained, and that this proceeding

“must assure that a resolution of the issue, and any appeals that may follow, will

-8-
be completed with anonymity and sufficient expedition to provide an effective

opportunity for an abortion to be obtained.” Id. at 643-44 (emphasis added). 7

As a threshold matter, Appellees argue that Bellotti involved a parental

consent statute and that it is not clear that Bellotti’s expeditious bypass

requirement applies to a statute like the one at issue here, which only requires

parental notification. The Supreme Court has not specifically resolved this

question, see Akron Ctr. for Reprod. Health, 497 U.S. at 510, and its decisions do

not suggest a clear answer, compare Planned Parenthood of S.E. Pa. v. Casey, 505

U.S. 833, 897 (1992) (explaining that a spousal notice requirement “will often be

tantamount to the [spousal consent requirement] found unconstitutional in

[Planned Parenthood of C ent. M o. v.]Danforth[, 428 U .S. 52, 69 (1976)]” because

“a spousal notice requirement enables the husband to wield an effective veto over

his wife’s decision”) with Hodgson v. M innesota, 497 U.S. 417, 445 (opinion of

Stevens, J.) (“Although the Court has held that parents may not exercise an

absolute, and possibly arbitrary, veto over [a minor’s decision to have an

7
These principles were laid out by a four-justice plurality. However, in
subsequent opinions, court majorities have invoked the Bellotti criteria, see
Lambert v. W icklund, 520 U.S. 292, 295 (1997) (per curiam); Ohio v. Akron Ctr.
for Reprod. Health, 497 U.S. 502, 513 (1990); and courts of appeals have held the
criteria to be controlling, see, e.g., M anning v. Hunt, 119 F.3d 254, 262-63 (4th
Cir. 1997).

-9-
abortion], it has never challenged a State’s reasonable judgment that the decision

should be made after notification to and consultation with a parent.”).

Even so, as Nova points out, several courts of appeals have applied

Bellotti’s expeditious bypass requirement in the context of a parental notice

statute. Planned Parenthood, Sioux Falls Clinic v. M iller, 63 F.3d 1452, 1460

(8th Cir. 1995) (“[P]arental-notice provisions, like parental-consent provisions,

are unconstitutional without a Bellotti-type bypass.”); Ind. Planned Parenthood

Affiliates Ass’n v. Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983) (“Because

parental involvement brought about by either consent or notification statutes may

result in similar efforts by parents to block the abortion, we will apply the

Supreme Court’s analysis with respect to consent bypass procedures in our

consideration of the constitutional sufficiency of Indiana’s notification bypass

procedures.”).

W e need not resolve this question today. Because we conclude that the

Oklahoma Act meets Belloti’s expeditious bypass requirement, we assume

without deciding that the requirement would apply to parental notification

statutes. See Akron Ctr. for Reprod. Health, 497 U.S. at 510 (assuming, without

deciding, that a notification statute must contain Bellotti-type bypass procedures

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“because, whether or not the Fourteenth Amendment requires notice statutes to

contain bypass procedures, [the statute in question] meets the requirements”). 8

W e now turn to the heart of the present appeal— whether Bellotti’s

expeditious bypass requirement requires a concrete, definite time frame in which

judicial action must be taken. Nova’s argument that it does rests on the premise

that “[a]lthough time is always of the essence where abortion decisions are

concerned, expedition is especially important to the judicial bypass process”

because the longer a minor has to w ait to obtain an abortion, the m ore

expensive— and, more importantly, less safe— the procedure becomes. This is

certainly correct. However, whether or not time is of the essence misses the

point; the question is whether, without a specified time frame, the Oklahoma A ct

assures that the judicial bypass process will be completed with “sufficient

expedition.” Bellotti, 443 U.S. at 644. Nova has not shown a “substantial

8
After oral argument, Nova filed a Rule 28(j) letter informing this court
that Oklahoma has amended the Act to require that a minor not only give notice,
but also receive the w ritten, informed consent of at least one parent, before
obtaining an abortion. See S.B. 1742, 50th Leg., 2nd Reg. Sess. §§ 18-20 (Okla.
2006). Nova suggests that this amendment moots A ppellees’ contention that a
notice statute need not include an expeditious bypass procedure, as Oklahoma
now has a consent statute. W e need not decide whether the amendment, which
was not in the statute as challenged by Nova below, is properly before us.
Because our disposition of this case does not depend on whether the statute is
merely a notice statute or also requires consent, and because we do not
dispositively address whether a notice statute must meet Bellotti’s requirements,
we see no reason to alter our analysis in light of this change.

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likelihood” that a statute which requires bypass proceedings be “given precedence

over other pending matters so that the court may reach a decision promptly and

without delay so as to serve the best interests of the pregnant unemancipated

minor” and provides for “[a]n expedited confidential appeal” fails, on its face, to

satisfy Bellotti. 9

Two points are critical to our decision. First is the posture of this appeal.

Nova is challenging the Oklahoma A ct on its face and has presented no evidence

that there is, has been, or w ill be any impermissible delay as to bypass petitions.

Nova argues that “[b]ecause the judicial bypass procedure does not contain any

deadlines by which the court must rule, . . . young women face potentially

unlimited delays in obtaining their abortions.” W ere this true, we would have

serious concerns about the constitutionality of the bypass procedures. But Nova

9
Nova suggests that the Oklahoma A ct’s language that bypass petitions
take precedence so that courts “may” reach a prompt decision fails to assure
expeditiousness, as required by Bellotti. However, “may” can mean, among other
things, both to “have permission to” and to “express[] purpose or expectation
. . . .” W ebster’s Third New Int’l Dictionary 1396 (1986). Thus, the Oklahoma
Act could mean either that courts have permission to issue prompt decisions or
that they are expected to issue prompt decisions. However, “‘[w]here fairly
possible, courts should construe a statute to avoid a danger of
unconstitutionality.’” Akron Ctr. for Reprod. Health, 497 U.S. at 514 (quoting
Planned Parenthood Ass’n of Kan. City v. Ashcroft, 462 U.S. 476, 493 (1983)
(opinion of Powell, J.)). If the statute merely permitted courts to issue prompt
decisions, it would certainly run the risk of offending Bellotti’s requirement of
assuring sufficient expedition. 443 U.S. at 644. W e therefore construe “may” to
mean that Oklahoma courts are expected to issue prompt decisions on bypass
petitions.

- 12 -
points to no evidence to support this scenario. On the record before us, there is

nothing to suggest that courts will act with anything other than “prompt[ness],”

“without delay to serve the best interests of the pregnant unemancipated minor,”

and with “expedit[ion],” as the statute requires.

Second, and relatedly, in the absence of evidence to the contrary, we must

presume that courts will follow the law. See Akron Ctr. for Reprod. Health, 497

U.S. at 515 (“Absent a demonstrated pattern of abuse or defiance, a State may

expect that its judges will follow mandated procedural requirements.”); M anning,

119 F.3d at 270 (“State judges are bound, just as federal judges are, to uphold the

Constitution of the United States and to follow the opinions of the United States

Supreme Court.”); cf. Falcone v. Stewart, 120 F.3d 1082, 1087 (9th Cir. 1997)

(“[A] defendant can legitimately expect that the courts will follow the law .”),

vacated on other grounds, 524 U.S. 947 (1998). The Oklahoma A ct, on its face,

complies with Bellotti in that it requires Oklahoma courts to issue prompt

decisions and provide for expeditious appeals, all in accordance w ith the best

interests of the pregnant unemancipated minor. W e presume they will do just

that. 1 0

10
Nova points out that various other O klahoma statutes give priority to
other types of actions. See, e.g., Okla. Stat. tit. 10, § 7505-1.4 (“Any petitions
filed with the court pursuant to the Oklahoma Adoption Code when docketed shall
have priority over all cases pending on said docket. Any other proceedings
concerning the adoption of a child shall be expedited by the court.”) (footnote
(continued...)

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 W e acknowledge that this decision conflicts with several of our sister

circuits, who have held or suggested that parental involvem ent law s require

specific time frames to satisfy Bellotti’s standard. See Planned Parenthood of S.

Ariz. v. Lawall, 180 F.3d 1022, 1024, 1028 (9th Cir. 1999) (finding parental

consent statute “which provide[s] general time frames for expedited proceedings,

but no specific time requirements” unconstitutional because “the trial court’s

review of a minor’s application must be performed within specific, determinate

time limits”); Causew ay M ed. Suite v. Ieyoub, 109 F.3d 1096, 1110-11 (5th Cir.

1997) (finding parental consent statute that provided bypass petitions “shall be

heard . . . in a summary manner” “plainly conflict[s] with Bellotti[] because the

juvenile court is not required to rule on the minor’s application within any

10
(...continued)
omitted); Okla. Stat. tit. 11, § 44-110(D) (appeals from zoning board decisions
“shall have preference over all other civil actions and proceedings”); Okla Stat.
tit. 40, § 2-610(3) (review of labor commission decisions “shall be heard in a
summary manner and shall be given precedence over all other civil cases”); Okla.
Stat. tit. 68, § 2885(B) (“Appeals taken from all [tax] boards of equalization shall
have precedence in the court to which they are taken.”); Okla. Stat. tit. 70, § 7-
101(C)(4) (appeals of school board annexation petitions “shall be given
precedence over all other civil matters”); see also Okla. Const. art. V, § 11C
(“The [Supreme] [C]ourt shall give all cases involving [legislative] apportionment
precedence over all other cases and proceedings . . . .”).
How ever, Nova provides no evidence to suggest that the existence of these
priority statutes will in any way prevent the state courts from deciding bypass
petitions in a prompt and expedient manner. There is nothing to suggest that
there is an overage of these other cases on state courts’ dockets such that a bypass
petitions will have to “fall in line,” nor any evidence that, even faced with a large
quantity of “high priority” cases, the state courts cannot competently manage their
dockets.

- 14 -
specified time”), overruled on other grounds Okpalobi v. Foster, 244 F.3d 405,

427 n.35 (5th Cir. 2001); cf. Zbaraz v. Hartigan, 763 F.2d 1532, 1539-41 (7th Cir.

1985) (enjoining parental notification statute, which provided that “an expedited

confidential appeal shall be available as the [Illinois] Supreme Court provides by

rule,” until such rules were established because the “general instructions . . . to

promulgate rules” failed to “provide the framework for a constitutionally

sufficient means of expediting the appeal”) (quotations, alterations omitted),

aff’d, 484 U.S. 171 (1987); Am. Coll. of Obstetricians & Gynecologists v.

Thornburgh, 737 F.2d 283, 296-98, 307 (3d Cir. 1984) (enjoining parental consent

statute until the Supreme Court of Pennsylvania complied with the statutory

mandate to “promulgate rules assuring confidentiality and promptness of

disposition”), aff’d, 476 U.S. 747 (1986); but see M anning, 119 F.3d at 270-72

(rejecting argument that statute which failed to adopt specific time frames for

appellate court proceedings and decisions above state superior court failed to

satisfy Bellotti; “It is improper for a federal court to assume easily, without

factual support of such findings, that state courts will not comply with the . . .

expedition mandates of the Supreme Court.”).

Notwithstanding the concerns expressed by these courts, we conclude that

the statutory mandates here for “prompt” and “expeditious” judicial review of a

bypass request, conducted in the best interests of the unemancipated pregnant

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minor likely complies with the Supreme Court’s mandate for “sufficient

expedition.” Thus, at this preliminary injunction stage, where Nova is making

only a facial challenge with no evidence that unemancipated minors are not being

given expeditious bypass review , we conclude that Nova has failed to carry its

burden of establishing a substantial likelihood of success on the merits of its

claim.

C O N C L U SIO N

As the Oklahoma A ct, on its face, satisfies the Supreme Court’s

requirement for an expeditious decision on a judicial bypass petition, Nova has

not shown a “substantial likelihood of success on the merits” sufficient to obtain a

preliminary injunction. The decision of the district court is therefore

A FFIRME D.

- 16 -
No. 05-5085, Nova Health Systems v. Edmondson

M U R PH Y , Circuit Judge, concurring specially.

Oklahoma’s newly enacted statute governing the reproductive rights of

unemancipated minors requires parental notification at least forty-eight hours

prior to the termination of a minor’s pregnancy. Okla. Stat. tit. 63, § 1-740.2.

The statute contains a judicial bypass procedure that “shall be confidential and

shall be given precedence over other pending matters so that the court may reach

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

pregnant unemancipated minor.” Id. § 1-740.3(C). In those circumstances when

the state trial court refuses to bypass the parental notification requirements, “[a]n

expedited confidential appeal shall be available.” Id. § 1-740.3(D).

Nova Health Systems (“Nova”) asserts O kla. Stat. tit. 63, § 1-740.3 is

facially unconstitutional because it fails to set out a definitive, concrete time

frame within which bypass proceedings must be completed. W ithout a concrete

time frame, Nova argues, § 1-740.3 fails to comply with the Supreme Court’s

directive that judicial bypass proceedings “must assure that a resolution of the

issue, and any appeals that may follow, will be completed with anonymity and

sufficient expedition to provide an effective opportunity for an abortion to be

obtained.” Bellotti v. Baird, 443 U.S. 622, 644 (1979). 1 Nova’s assertion is not

1
As noted in this court’s decision, although Bellotti was a plurality opinion,
it has subsequently been invoked by Supreme Court majorities and the courts of
(continued...)
without support. Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1024,

1028-32 (9th Cir. 1999); Causeway M ed. Suite v. Ieyoub, 109 F.3d 1096, 1110-11

(5th Cir. 1997), overruled on other grounds by Okpalobi v. Foster, 244 F.3d 405,

427 n.35 (5th Cir. 2001); See Zbaraz v. Hartigan, 763 F.2d 1532, 1539-41 (7th

Cir. 1985); Am. Coll. of Obstetricians & Gynecologists v. Thornburg, 737 F.2d

283, 296-97, 307 (3d Cir. 1984). But see Manning v. Hunt, 119 F.3d 254, 270-72

(4th Cir. 1997).

Despite these authorities, the court rejects Nova’s contentions and affirms

the district court’s denial of preliminary injunctive relief on the ground Nova has

not demonstrated a substantial likelihood of success on the merits. M ajority Op.

at 11, 14-15. According to the court’s opinion, two points are critical. First is

the complete absence of evidence in the record “that there is, has been, or will be

any impermissible delay as to bypass petitions.” Id. at 12. Second, in view of the

state of the record on appeal, is the presumption that the Oklahoma state courts

will follow the law and protect the constitutional rights of the citizens of

Oklahoma. Id. at 12-13.

Although the weight of authority favoring Nova’s position gives me some

pause, I must ultimately agree that Nova has not demonstrated a substantial

1
(...continued)
appeals have held the Bellotti requirements to be controlling. M ajority Op. at 8
n.7 (collecting cases).

-2-
likelihood of success on the merits. The outcome is compelled by the procedural

posture of this case, i.e., a blunt facial attack on a state legislative enactment. See

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 895 (1992) (holding that a

law regulating reproductive rights is unconstitutional on its face if, “in a large

fraction of the cases in w hich [the statute] is relevant, it will operate as a

substantial obstacle to a woman’s choice to undergo an abortion”); Jane L. v.

Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996) (holding that Casey’s undue

burden standard applies to facial challenges to laws regulating reproductive

rights).

Bellotti simply requires each step in a judicial bypass proceeding “be

completed with . . . sufficient expedition to provide an effective opportunity for

an abortion to be obtained.” 443 U.S. at 644. In drafting laws like that at issue

here, states are entitled to presume their judges will comply with the mandated

procedural requirements, i.e., giving bypass proceedings priority over other

matters and resolving the proceedings with expedition. Cf. Ohio v. Akron Ctr. for

Reprod. Health, 497 U.S. 502, 515 (1990). There is nothing in Bellotti remotely

suggesting a definitive, concrete time frame must be written into state law in

order to satisfy the requirement of expedition. The reason may very well be that

the need for expedition is intensely case specific and will often depend on factors

unique to the individual unemancipated minor. Such factors could include,

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among others, the mental, emotional, and physical health of the minor; the point

of gestation 2 ; and the availability of abortion providers at various points of

gestation. 3 W ithout such defining facts, a court lacks context by which to judge

the expedition necessary to preserve the window of opportunity for the safe and

effective termination of a pregnancy. Thus, when faced with a state statute

mandating bypass proceedings be given priority and be decided with expedition,

and in the complete absence of any record evidence state courts w ill fail to fulfil

that mandate, federal courts should hesitate to impose upon the states a rigid time

frame for acting on bypass petitions.

Thus, consistent with the court’s opinion, I conclude Nova has not carried

its burden of demonstrating the absence of definitive, concrete time frames in § 1-

704.3 renders the statute unconstitutional on its face. This decision does not,

however, leave the reproductive rights of unemancipated minors in Oklahoma

unprotected. As noted above, the outcome in this case turns almost entirely on

the procedural posture of the case, i.e., a facial challenge to a state statute when

there is absolutely no record evidence Oklahoma state courts w ill fail to comply

with the statutory mandate for expedition. Any unemancipated young woman who

2
A later term abortion being more dangerous than an earlier term abortion.
3
Assuming a local provider of reproductive services only providing
abortions until the sixteenth week of gestation, all other things being equal, a
bypass proceeding initiated in the fifteenth w eek of gestation would require
greater expedition than one initiated in the twelfth week.

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is not afforded the expedition constitutionally required by the circumstances of

her particular case is, however, free to proceed to federal court with an as-applied

challenge to § 1-704.3. Such proceedings themselves must, of course, be resolved

with expedition, so that the federal courts do not fail in their duty to protect the

constitutional rights of a citizen of the United States. Although some might

bemoan the necessity to proceed with as-applied challenges, such a result is both

necessary and appropriate under the particular circumstances of this case.

W ith these additional observations, I join the court’s opinion.

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