Barnes v. State of Miss.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 92-7264
_______________________

HELEN B. BARNES, M.D., ET AL.,

Plaintiffs-Appellees,

versus

THE STATE OF MISSISSIPPI, ET AL.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________

(May 26, 1993)

Before JOHNSON, GARWOOD, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The State of Mississippi appeals a decision by the

district court holding unconstitutional its law requiring minors in

some cases to obtain the consent of both parents before getting an

abortion. The district court entered a preliminary injunction

barring enforcement of the statute.

Despite the recent efforts of a three-justice plurality

of the Supreme Court, passing on the constitutionality of state

statutes regulating abortion after Casey has become neither less

difficult nor more closely anchored to the Constitution. Planned

Parenthood v. Casey, ___ U.S. ___, 112 S. Ct. 2791 (1992). That

Mississippi's statute was carefully framed to steer among the
shoals of caselaw has simplified our task somewhat. Further, based

on the rationale for stare decisis articulated by the Casey

plurality, we believe the "central holdings" of pre-Casey decisions

remain intact and compel approval of this statute. We vacate the

preliminary injunction and remand for entry of an order of

dismissal.

I

Subject to significant exceptions, the 1986 law, Miss.

Code Ann. §§ 41-41-51 through 41-41-63, forbids an unemancipated

minor to obtain an abortion unless she has the consent of both

parents or the approval of the state Chancery Court. In cases

where the parents are divorced or are unmarried and separated, then

only the consent of the parent with primary custody is required.

§ 41-41-53(2)(a). Similarly, if only one parent is available in a

reasonable time, only the consent of the available parent is

necessary. § 41-41-53(2)(b). If the pregnancy was caused by

sexual intercourse with the minor's father or stepfather, only the

consent of the mother is required. § 41-41-53(2)(c). Further, the

statute permits abortions on minors without parental consent in

cases of medical emergency. § 41-41-57.

The law contains a judicial bypass provision allowing

minors to circumvent the parental consent requirement by applying

for approval in state court. § 41-41-53(3). If the minor is

unable to satisfy the parental consent requirements or chooses not

to follow that route, she may file a petition in Chancery Court for

court approval to have that consent waived. The statute mandates

2
that the state court proceedings be confidential and anonymous. A

breach of confidentiality carries a criminal penalty. § 41-41-61.

It further provides that the Chancery Court will rule on the

petition within 72 hours after it is filed; otherwise the minor may

go ahead with the abortion. § 41-41-55(3). The statute calls on

judges to waive the parental consent requirement if 1) the minor is

mature and well-informed enough to make the decision on her own, or

2) the abortion would be in her best interests. Finally, it

provides for an expedited confidential and anonymous appeal of any

denial of the waiver.

Pursuant to the statute, the Mississippi Supreme Court

promulgated Rule 10.01 of the Mississippi Uniform Rules of Chancery

Court. The rule specifies Chancery Court procedures for the

consent waiver. In particular, it provides that the petition

should contain an allegation that 1) the minor is mature and well

informed enough to make the decision on her own, or 2) that one or

both of the parents has engaged in a pattern of physical, sexual,

or emotional abuse against her, or that notification of her parents

would not be in her best interest.

The appellees, consisting of doctors and clinics,

launched a facial challenge to the statute's constitutionality.

The district court initially granted a preliminary injunction

barring enforcement of the statute until the Mississippi Supreme

Court promulgated its rules regarding parental consent waiver

proceedings. The district court then stayed the proceedings for

four years awaiting the outcome of various Supreme Court rulings on

3
abortion. In March 1992, it held the statute unconstitutional on

the sole ground that the Mississippi Supreme Court's implementing

rule unduly restricts a minor's access to an abortion.

Accordingly, it denied the state's motion to lift the preliminary

injunction on enforcement of the law. The state appeals.

II

The appellees argue that this qualified two-parent

consent/judicial bypass statute regulating abortion is

unconstitutional. The statute is flawed, they contend, because

requiring the approval of two parents does not serve any important

state interest, unduly restricts a minor's access to abortion, and

intrudes on the family's right to structure its relationships as it

sees fit. For example, the statute gives one parent the power to

veto the abortion even if the other parent consents to the

procedure. This, they argue, has the effect of changing power

relations within the family. The judicial bypass does not save the

statute, in the appellees' view, because it involves too much

judicial intrusiveness into a private family decision.

A

The Supreme Court has upheld less intrusive parental

consultation statutes in the past. Parental involvement statutes

may be divided into four groups, in ascending order of the burden

they impose on the minor's exercise of her limited right to an

abortion: one-parent notification statutes, two-parent

notification statutes, one-parent consent statutes, and two-parent

consent statutes. The Court upheld a one-parent notification

4
statute in H.L. v. Matheson, 450 U.S. 398, 101 S. Ct. 1164 (1981).

It upheld a two-parent notification statute that includes a

judicial bypass provision, in Hodgson v. Minnesota, 497 U.S. 417,

110 S. Ct. 2926 (1990) (Kennedy plurality opinion).1 Finally, it

upheld a one-parent consent statute, with a judicial bypass, in

Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476,

103 S. Ct. 2517 (1983). The remaining question is whether a two-

parent consent statute impermissibly crosses the line so as to

impose an undue burden on the minor's right to an abortion. Casey,

112 S. Ct. at 2819 (plurality) (formulating "undue burden" standard

for abortion regulations).

As noted above, the Court scrutinizes consent statutes

more closely than it does notification statutes, and two-parent

laws more closely than one-parent laws. Thus, a two-parent consent

statute arguably raises more serious questions than the other

parental involvement statutes. The appellees contend that the

constitutionality of a two-parent consent/judicial bypass law is an

open question. Mississippi argues that the matter has been settled

in favor of constitutionality. Mississippi appears to have the

better of the argument.

In Bellotti v. Baird, 443 U.S. 622, 637, 99 S. Ct. 3035

(1979), a fractured Court struck down a state law that required

minors to obtain the consent of both parents before an abortion

1. In Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.
Ct. 2972 (1990) ("Akron II"), decided in tandem with Hodgson, the Court left
open the precise question whether parental notification statutes require a
judicial bypass provision.

5
could be performed. The plurality opinion struck the law down on

the grounds that its judicial bypass provision was constitutionally

inadequate. 443 U.S. at 645. However, the opinion stated: "We

are not persuaded that, as a general rule, the requirement of

obtaining both parents' consent unconstitutionally burdens a

minor's right to seek an abortion." Id. at 649. In outlining the

constitutional requirements for such a statute, the Court said:

"We therefore conclude that if the state decides to require a

pregnant minor to obtain one or both parents' consent to an

abortion, it also must provide an alternative procedure whereby

authorization for the abortion can be obtained." Id. at 643

(emphasis added). Thus, if the statute had contained an adequate

judicial bypass the four members of the plurality stood ready to

uphold it. A fifth, Justice White, was prepared to uphold the

statute in Bellotti even without a judicial bypass. Id. at 657

(White dissenting).

Although the court in Bellotti did not uphold a two-

parent consent statute, it did indicate that it would do so under

different circumstances. The appellees urge that this statement

amounts to dicta and need not be followed. That characterization

of the Bellotti plurality was disputed by the plurality itself, 443

U.S. at 651 n.32, and was challenged just two years ago, Hodgson,

497 U.S. at 498 (Kennedy plurality).

Even if the comment on two-parent consent statutes in

Bellotti is dicta it is persuasive dicta, particularly in light of

Justice Kennedy's plurality opinion in Hodgson, 497 U.S. at 498.

6
There, he relied on Bellotti to uphold a two-parent notice

requirement. Justice Kennedy argued that since Bellotti approved

a two-parent consent statute with a judicial bypass, it follows

that the less onerous two-parent notice statute must be

constitutional. Id. at 498 (Bellotti "requires us to sustain the

statute before us here"). Justice O'Connor, also citing Bellotti,

joined the plurality on the broad grounds that a bypass provision

tailors "a parental consent provision so as to avoid unduly

burdening the minor's limited right to obtain an abortion." Id. at

461 (O'Connor concurring). Thus, five justices (Rehnquist, White,

O'Connor, Scalia, and Kennedy) in Hodgson viewed Bellotti as

settling the question in favor of the constitutionality of a two-

parent consent/judicial bypass statute.

B

Even if Bellotti is not directly controlling, a two-

parent consent statute with a judicial bypass is constitutional.

An abortion regulation is unconstitutional only if it places an

"undue burden" on the exercise of the right, that is, if it "has

the purpose or effect of placing a substantial obstacle in the path

of a woman seeking an abortion." Casey, 112 S. Ct. at 2820. Thus,

a regulation that places a burden on the exercise of the right is

constitutional unless the burden is "undue." The state may enact

laws that are "calculated to inform the woman's free choice, not

hinder it." Id. "Regulations which do no more than create a

structural mechanism by which the State, or the parent or guardian

of a minor, may express profound respect for the life of the unborn

7
are permitted, if they are not a substantial obstacle to the

woman's exercise of the right to choose." Id. at 2821. As long as

Casey remains authoritative, the constitutionality of an abortion

regulation thus turns on an examination of the importance of the

state's interest in the regulation and the severity of the burden

that regulation imposes on the woman's right to seek an abortion.

Contrary to the appellees' contentions, the state does

have an important interest at stake in parental involvement

statutes. The state's interest, in part, is in ensuring that

someone other than the immature minor and the abortion provider has

a hand in making an important decision that fundamentally affects

the minor's health and welfare. The Supreme Court has recognized

that "the guiding role of parents in the upbringing of their

children justifies limitations on the freedom of minors."

Bellotti, 443 U.S. at 637. The Court has described as "deeply

rooted in our Nation's history and tradition" the "belief that the

parental role implies a substantial measure of authority over one's

children." Id. at 638. "Legal restrictions on minors, especially

those supportive of the parental role, may be important to the

child's chances for the full growth and maturity that make eventual

participation in a free society meaningful and rewarding." Id. at

638-39. Parental consultation is particularly important on the

abortion decision, "one that for some people raises profound moral

and religious concerns." Id. at 640. The child herself may be too

immature to make the decision. And the abortion provider cannot be

counted on to provide "adequate counsel and support . . . at an

8
abortion clinic, where abortions for pregnant minors frequently

take place." Id. at 641.

The state's interest in one-parent consent statutes is

clear: it is to protect children from their own immaturity and

naivete as well as from the possibly deficient advice of those

whose business is to provide abortions. Such statutes are plainly

constitutional. Casey, 112 S. Ct. at 2832; Ashcroft, 462 U.S. 476.

The state's interest is equally present in the two-parent consent

context. Indeed, it is heightened because involvement of both

parents in the decisionmaking might be thought to increase

reflection and deliberation on the decision, especially where the

parents live together.2 Both parents, after all, ordinarily have

a strong interest in helping to determine the course that is best

for their child. A two-parent consent statute helps to safeguard

the interests of both parents and the family unit. In short, "it

cannot be said that the requirements serve no purpose other than to

make abortions more difficult." Casey, 112 S. Ct. at 2833

(upholding clinic reporting requirements). The two-parent

requirement injects more "information" into the decisionmaking

process than a one-parent requirement. It is calculated to make

the decision a more informed one. Id. at 2820. Further, it

creates a structural mechanism by which both parents may express,

if they so choose, "profound respect for the life of the unborn."

2. It must be emphasized that under Mississippi's statute, the consent of
both parents is not required if they are divorced, unmarried and living apart,
or if one of them is not available "in a reasonable time and manner."

9
Id. at 2821. The important interests of the State and the parents

in the regulation are undeniable.

Justice Kennedy eloquently expressed the interests of the

state and the family in Akron II:

It is both rational and fair for the State to
conclude that, in most instances, the family
will strive to give a lonely or even terrified
minor advice that is both compassionate and
mature. The statute in issue here is a
rational way to further those ends. It would
deny all dignity to the family to say that the
State cannot take this reasonable step in
regulating its health professions to ensure
that, in most cases, a young woman will
receive guidance and understanding from a
parent.

497 U.S. 502, 110 S. Ct. at 2984. We believe that this statement

is valid notwithstanding the Casey plurality's reformulation of the

right to an abortion and the distinction between Ohio's

notification statute with judicial bypass and Mississippi's

qualified two-parent consent-plus-bypass statute.

It remains to examine the burden thus placed on the

minor's limited right to an abortion. It is true that requiring

the consent of both parents, as opposed to one, will incrementally

increase the burden on the minor's exercise of her right to get an

abortion. There will be cases where one, but not both, of the

parents will consent to the procedure. Under a one-parent consent

statute, that would be the end of the matter. Under a two-parent

consent statute, the child will have to go to court to obtain the

abortion. However, the bulk of the burden is in requiring the

consent of even one parent, as a state is unquestionably entitled

to do. Once that objection is met the only issue is whether the

10
necessity of obtaining the second parent's approval crosses the

constitutional line. Where the state supplies an expeditious

process for obtaining court approval, the additional burden on the

minor is greatly relieved. The parents still do not have a "veto"

over the minor's decision, a consideration found dispositive in

Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.

Ct. 2831 (1976) (striking down one-parent consent statute that did

not include bypass provision). Further, in cases where one parent

withholds consent the minor will often have a willing supportive

parent to accompany her to court. The view of one of the child's

parents that the procedure should go forward will certainly be

given great weight by the Chancery Court (because of the statute's

confidentiality provisions, the second parent need not even know

that court approval is being sought). Thus, the additional burden

placed on the minor by requiring the approval of the second

parent -- as opposed to requiring the approval of only one -- will

be slight.

The abortion providers here also complain that in some

cases a two-parent consent statute impermissibly intrudes on family

decisionmaking by empowering courts to choose which of the two

disagreeing parents will "win" the dispute over whether the

abortion should go forward. There is more than a little irony in

this position, coming from those who would prefer statutes that, by

requiring neither parental consent nor notification, ignore the

role of the family altogether. In any event, this argument

overlooks the fact that the statute charges the Chancery Court to

11
decide what is in the minor's best interest, not which parent is

right or has the better argument. The argument also ignores the

alternatives to a two-parent consent statute, some of which

increase the state's intrusion into family decisionmaking. In a

one-parent consent statute, which is undeniably constitutional, a

judge may often be in the position of overruling the wishes of both

parents, not just one of them. And in a world without parental

consultation statutes, the state, making its licensed doctors

available to perform abortions on minors without any parental

involvement whatsoever, would often foreclose the chance of any

family decisionmaking.

Accordingly, a statute requiring the consent of a second

parent, combined with an adequate judicial bypass mechanism, does

not place an "undue burden" on a minor's right to seek an abortion.

The Mississippi statute is facially constitutional.

III

The plaintiffs also challenge the Mississippi statute on

the grounds that its bypass mechanism is constitutionally

defective. The district judge agreed with the plaintiffs and

struck the law down on this basis alone.

Bellotti demands that a parental consent statute contain

a judicial bypass mechanism that allows the minor to show that 1)

she is sufficiently mature to make the abortion decision

independently of her parents' wishes, or 2) that if she is not able

to make the decision independently, an abortion would be in her

best interests. Bellotti, 443 U.S. at 643-44.

12
 Mississippi's abortion statute tracks this language,

providing the required grounds for waiver of parental consent.

However, the Mississippi Supreme Court's Rule 10.01 is worded

differently from the abortion statute and Bellotti. Whereas

Bellotti and the statute require the court to consider whether an

abortion is in the minor's best interest, the rule requires a minor

to plead that notifying her parents of the abortion is not in her

best interest. According to the appellees, this semantic

difference from Bellotti is fatal to the statutory scheme. For

several reasons, we disagree.

As the appellees point out, there may be an occasion on

which an abortion would be in the minor's best interest but

parental notification would also be in her interest. This might

happen where the minor's parents are understanding and supportive

(therefore, notification would do no harm) but have religious

objections to abortion. In such a case, appellees contend, Rule

10.01 restricts the minor's access to the waiver and conflicts with

Bellotti.3 A parental consent statute using parental notification

as the guidepost for the child's best interests might well be

unconstitutional, Glick v. McKay, 937 F.2d 434, 439 (9th Cir.

1991), though we express no view on that issue. The question here

is whether this procedural rule promulgated under the authority of

3. Note, however, that in some cases Rule 10.01--if (improperly) read
alone--would have the effect of increasing a minor's access to abortion. On
at least some occasions, it will not be in the best interest of the minor to
notify her parents and will also not be in her best interest to have an
abortion. In such a case Rule 10.01, as it now reads, would result in a
consent waiver. Note, too, that Rule 10.01 compels a court to grant the
abortion if one parent has abused the child.

13
a facially constitutional statute renders the statute

unconstitutional or unenforceable.

It does not. As a matter of Mississippi state law, the

procedural rule cannot trump the substantive statute pursuant to

which it was promulgated. Mississippi's courts must give effect to

all constitutional laws passed by the legislature. Kelly v.

Mississippi Valley Gas Co., 397 So.2d 874, 877 (Miss. 1981). Here,

the statute is plainly constitutional; the state courts must employ

the substantive standards it sets forth. Mississippi's own

Chancery Rules direct a court to follow state statutes if there is

a conflict between the rules and a statute. Uniform Chancery Rule

11.01 ("If there be any conflict between these rules and . . . any

applicable Mississippi statutes, the latter shall be followed.").

Mississippi's Chancery Courts are bound to follow the statute,

which requires them to inquire whether an abortion is in the

minor's best interest.

The only possible constitutional dilemma inherent in this

bypass rule will arise where the Chancery Court finds: 1) the minor

is immature, 2) an abortion is in her best interests, and 3) there

is no harm in parental notification. At oral argument in this

court, however, the state clearly and repeatedly vouchsafed that it

is the official position of the Attorney General of Mississippi

that where a Chancery Court made those findings it would be

required under Mississippi law to grant the minor's petition. This

necessarily follows from the position taken in the state's brief

that any inconsistency between the rule and the statute must, under

14
Mississippi law, be resolved in favor of the statute.

Consequently, assuming Mississippi courts do their duty under state

law, and we are not entitled to presume otherwise, the bypass

procedure is not constitutionally defective.4

The appellees' interpretation of Rule 10.01 also suffers

from a hypertechnical concern with the niceties of pleading. While

the Rule establishes the kinds of allegations a minor must make to

initiate a bypass of parental consent, it does not make those

allegations, if proved, the sum and substance of the statutory

"best interests" test. Rule 10.01 states that if the minor chooses

to represent herself, her pleadings "shall be liberally

construed . . . so as to do substantial justice." As the Court has

stated:

Even on the assumption that the pleading
scheme could produce some initial confusion
because few minors would have counsel when
pleading, the simple and straightforward
procedure does not deprive the minor of an
opportunity to prove her case. It seems
unlikely that the Ohio courts will treat a
minor's choice of complaint form without due
care and understanding for her unrepresented
status.

Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 516-17,

110 S. Ct. 2972 (1990)

4. In holding that the pleading requirement of Rule 10.01 does not render
the statutory scheme unconstitutional, we do not, as the dissent suggests,
leave minors in Mississippi to drift in uncertainty over how to proceed in
seeking a bypass. As has been noted, the substantive requirements of the
statute itself guide the Chancery Courts and, hence, the petitioners before
it. To obtain judicial consent, it is enough that the minor show that she can
meet the substantive requirements of the statute, that is, that she is
sufficiently mature to make the decision on her own or that an abortion is in
her best interests.

15
 There is yet another flaw in the appellees' reasoning.

They have launched a facial challenge to the constitutionality of

the statute. A facial challenge will succeed only where the

plaintiff shows that there is no set of circumstances under which

the statute would be constitutional. Webster v. Reproductive

Health Services, 492 U.S. 490, 524, 109 S. Ct. 3040 (1989)

(O'Connor concurring); Akron II, 497 U.S. at 514; see also Rust v.

Sullivan, ___ U.S. ___, 111 S. Ct. 1759 (1991); Barnes v. Moore,

970 F.2d 12, 14 (5th Cir. 1992). Although it is imaginable that

Mississippi courts might refuse to follow a statute enacted by the

state legislature, that does not suffice to undermine the statute's

constitutionality. If a Mississippi court does follow Rule 10.01

so as to conflict with Bellotti, a plaintiff will be free to launch

an as-applied challenge to the bypass procedure. In the meantime,

the Fifth Circuit is not a "roving commission[] assigned to pass

judgment on the validity of the Nation's laws." Broadrick v.

Oklahoma, 413 U.S. 601, 610-11, 93 S. Ct 2908 (1973).5

5. The dissent misapprehends our application of the no-circumstances
principle to this case. Our position is not that the bypass scheme ought to
be interpreted to exclude the minor who can show that an abortion is in her
best interest but cannot show that notification is not in her best interest
and, is therefore only unconstitutional when applied to some small subset of
Mississippi minors. On the contrary, we believe the dissent misconstrues the
statutory scheme when it concludes that the law will be unconstitutional as to
those few minors under all circumstances. We have not voiced an opinion on
the law as the dissent reads it because, properly interpreted and applied by
the Chancery Courts, Mississippi law requires them to grant any minor a bypass
if an abortion is in her best interest. Properly interpreted and followed,
the law will be constitutional as to all minors in Mississippi. There will be
no "unconstitutional impact upon a small percentage of the minors seeking to
obtain judicial consent for an abortion." See ___ F.2d ___, ___, slip op. at
___, n.4 (Johnson dissenting).

16
 IV

Finally, the abortion providers argue that the Chancery

Court system in Mississippi will be unable to implement the statute

in a constitutional manner. They presented affidavits to the

district court indicating that most court clerks are either

unfamiliar with the bypass procedures or are completely unaware

that a minor could obtain an abortion without her parents'

consent.6 They argue further that there are insufficient

chancellors to hear cases and that court-appointed counsel will be

difficult to obtain. They worry that true confidentiality will be

difficult or impossible to maintain since court personnel in small

towns will recognize minors coming to court seeking the parental

consent waiver.

All of these objections might be appropriate in an as-

applied challenge to the constitutionality of the statute. But to

sustain a facial challenge, the plaintiffs must show that under no

circumstances could the law be constitutional. Barnes, 970 F.2d at

14. Before the law is even implemented, this court is obliged to

presume that state officials will act in accordance with the law.

Akron II, 497 U.S. at 513 ("We refuse to base a decision on the

facial validity of a statute on the mere possibility of

unauthorized, illegal disclosure by state employees."). There is

no demonstrated pattern of abuse or defiance here that would

warrant the court to presume otherwise. Too, remand for an a

6. It is unsurprising that clerks in Mississippi courts would be unfamiliar
with the statute since the district court, at the behest of these plaintiffs,
has barred enforcement of the statute since its enactment.

17
priori factual determination on whether a state was ready to

implement its bypass procedure would likely draw upon "evidence"

that is very speculative.

Moreover, this Court has once before encountered these

plaintiffs complaining of intolerable conditions for the exercise

of abortion rights in Mississippi. Barnes, 970 F.2d at 14. In

Barnes, this Court turned away their facial challenge to a 24-hour

waiting period. As in this case, the plaintiffs there argued that

this Court should remand to the district court for an evidentiary

hearing on whether the regulation imposed an "undue burden" on

Mississippi's minors despite the fact that the Supreme Court in

Casey had upheld an almost identical Pennsylvania law.

"Mississippi ain't Pennsylvania," the plaintiffs said. This Court

refused to remand the case for an evidentiary hearing, ruling that

a facial challenge to a statute required more than a derogatory

remark and brief about conditions in Mississippi. The same

principle applies here.

V

The Mississippi abortion statute is facially

constitutional. Accordingly, this Court vacates the preliminary

injunction and remands to the district court for entry of an order

of dismissal.

REVERSED and REMANDED with instructions.

18
JOHNSON, Circuit Judge, dissenting:

This writer is compelled to agree with the majority's

conclusion that the Supreme Court has voiced approval for a two-

parent consent requirement with an adequate judicial bypass.7

However, in my view, the judicial bypass procedure at issue in the

instant case, as contained in both the statute and in the

Mississippi Supreme Court's procedural rules, is constitutionally

deficient. Accordingly, the instant dissent is made from the

decision of the majority to vacate the district court's injunction

against enforcement of Mississippi's parental consent statute.

The foremost flaw in the majority opinion is its refusal to

come to grips with the real issue presented by this appeal--that

being whether Mississippi's judicial bypass is adequate in the

context of a parental consent statute. In fact, the majority

opinion skirts around the issue to the extent that it is difficult

to discern its actual holding. Portions of the opinion suggest

7. A two-parent consent requirement has never been approved by
the Supreme Court. In Hodgson v. Minnesota, 110 S. Ct. 2926
(1990), the Court did approve a two-parent notice requirement
that provided for a judicial bypass. A majority of the Justices
agreed that any legitimate state interest in requiring parental
notification would be fully satisfied by a requirement that one
parent be notified. Id. at 2945 (Stevens, J.). The requirement
that both parents be notified was therefore held to be
unconstitutional. The same would obviously be true for a two-
parent consent requirement since consent requirements are much
more burdensome than notice requirements and must be examined
more closely. Nonetheless, a different majority in Hodgson held
that a two-parent notice requirement, though unconstitutional
standing alone, could nonetheless be saved by an adequate
judicial bypass. Id. at 2970 (Kennedy, J.). While the issue was
not before the Supreme Court, I must agree that this same
majority strongly indicated that a two-parent consent statute
with an adequate judicial bypass would also be constitutional.

19
that the challenged language in Mississippi's Rule 10.01 is indeed

invalid because it conflicts with Bellotti v. Baird, 99 S. Ct. 3035

(1979), and with Mississippi's statutory requirements for the

judicial bypass. If that is the majority's intent, the majority is

actually only objecting to the district court's decision to

continue the injunction rather than to surgically strike the

offending language from the rule. It is difficult to believe that

the majority intends this interpretation because that would make

the bulk of the opinion nothing more than misguided dicta.

Nevertheless, to the extent that this is the intended holding of

the majority, this writer would whole-heartedly agree that the

language in Rule 10.01 is invalid.8

On the other hand, portions of the majority opinion seem to

approve Mississippi's parental consent procedure simply because the

statute itself complies with Bellotti. According to the majority,

the unconstitutional requirements set forth in Rule 10.01 are of no

moment because the statute must "trump" the procedural rule. What

the majority forgets--or at least ignores--is that the Supreme

Court has made it clear that a two-parent consent requirement is

unconstitutional.9 Such a requirement can only be saved by an

adequate judicial bypass. Because the procedural rule at issue is

a part of the judicial bypass provided by Mississippi, this Court

8. This writer would still affirm the judgment of the district
court for the precise reason given by Judge Wingate. Merely
striking the offending language in Rule 10.01 would leave minors
without direction on how to proceed or what to allege in their
complaints.

9. See supra note 1.

20
cannot avoid passing on the constitutionality of the language

contained in Rule 10.01. The district court held that the language

in Rule 10.01 meant that Mississippi's judicial bypass was

inadequate to save the two-parent consent requirement. Although

the majority struggles mightily to avoid the issue, it is that

precise holding of the district court that is now squarely

presented for review.

Limitations on a Minor's Right to an Abortion

At this hour, it is beyond debate that the Constitution

protects the right of every woman to decide whether and when to

conceive and bear children, including the right to choose to

continue or to terminate a pregnancy. Planned Parenthood v. Casey,

112 S. Ct. 2791, 2816 (1992). This right is in no way diminished

by a woman's minority. Hodgson v. Minnesota, 110 S. Ct. 2926, 2936

(1990). Of course, as is the case for all other constitutional

protections, a woman's freedom in this area is not unlimited. The

Supreme Court has recognized that the State has legitimate

interests in the health of the pregnant woman and in protecting the

potential life within her. However, any attempts by the State to

further its legitimate interests must be calculated to inform a

woman's free choice, not to hinder it. "An undue burden exists,

and therefore a provision of law is invalid, if its purpose or

effect is to place a substantial obstacle in the path of a woman

seeking an abortion before the fetus attains viability." Casey,

112 S. Ct. at 2821.

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 To be sure, where the woman seeking an abortion is an

unmarried minor, the State has a special interest in encouraging

her to seek the advice and counsel of her parents. Hodgson, 110 S.

Ct. at 2942; Bellotti v. Baird, 99 S. Ct. 3035, 3046 (1979).

However, a State cannot lawfully authorize an absolute parental

veto over the decision of a minor to terminate her pregnancy.

Planned Parenthood v. Danforth, 96 S. Ct. 2831, 2843 (1976). A

parental consent requirement, although it would be unconstitutional

standing alone, can nonetheless be saved by an adequate

"alternative procedure" whereby authorization for the abortion can

be obtained. Bellotti, 99 S. Ct. at 3048. In such an alternative

proceeding, a pregnant minor is entitled to show either (1) that

she is mature enough and well informed enough to make the decision

herself or (2) that the abortion would be in her best interests.

Additionally, to allow the minor an effective opportunity to obtain

an abortion, all acceptable judicial bypass procedures must (3)

insure anonymity and (4) be conducted with expediency. Ohio v.

Akron Center for Reproductive Health, 110 S. Ct. 2972, 2979-80

(1990) (Akron II); Bellotti, 99 S. Ct. at 3048.

Is Mississippi's Rule 10.01 Constitutional?

The plaintiffs below admit that the statutory portion of

Mississippi's judicial bypass complies with the standards set forth

in Bellotti. The statute itself provides that parental consent

shall be waived if the court finds either: "(a) [t]hat the minor is

mature and well-informed enough to make the abortion decision on

22
her own; or (b) [t]hat performance of the abortion would be in the

best interests of the minor." MISS. CODE ANN. § 41-41-55. However,

the statute specifically directs the Mississippi Supreme Court to

issue rules to insure that the bypass proceedings are handled in an

"expeditious, confidential and anonymous manner." MISS. CODE ANN. §

41-41-55(6). And it is one of the procedural rules so promulgated

that has given rise to this litigation. Mississippi Chancery Court

Rule 10.01(4), the actual procedural rule attacked by the

plaintiffs, states that the minor's petition for judicial

authorization shall allege either or both of the following:

(a) [t]hat the complainant is sufficiently mature and well
informed to intelligently decide whether to have an abortion
without the notification of her parents, guardian, or
custodian;

(b) [t]hat one or both of her parents, her guardian, or her
custodian was engaged in a pattern of physical, sexual, or
emotional abuse against her, or that the notification of her
parents, guardian, or custodian otherwise is not in her best
interest.

MISS. CH. R. 10.01(4) (emphasis added).

The district court found that Rule 10.01 stood in direct

conflict both with the Mississippi parental consent statute and

with the standards enunciated in Bellotti. The district court

reasoned that the pleading requirements set forth in the rule

impermissibly narrow the Bellotti standards because they would have

the effect of denying authorization to some minors even though

abortion would be in their best interests. The district court

noted that simply correcting the rule by striking the offending

language would leave minors without any guidance as to how to

proceed or what to allege in their complaints. Therefore the

23
district court continued the injunction against enforcement of

Mississippi's parental consent statute until Rule 10.01 is amended.

Mississippi argues before this Court that the language in Rule

10.01 must be constitutional because identical language was

approved by the Supreme Court in Akron II. However, as the

district court correctly noted, Akron II dealt with a notice

requirement, while the instant case deals with a consent

requirement. Consent statutes are by nature significantly more

burdensome and imposing than notice statutes and must be attended

with greater protection.

From a constitutional standpoint, the key consideration for

any parental involvement requirement is whether it results in

another person having an absolute veto power over a minor's right

to have an abortion. Danforth, 96 S. Ct. at 2843. The Supreme

Court has repeatedly held that where a minor is mature enough to

make her own decision or where the abortion would be in her best

interests she must be permitted to have the abortion. Bellotti, 99

S. Ct. at 3048. To the extent that a parental involvement statute

results in veto power over a minor in either of these two classes,

it is unconstitutional. Such a statute can nonetheless be saved by

an alternative bypass procedure, if the bypass is adequate to

ensure that minors in the two protected classes can obtain

authorization for the abortion without any parental involvement.

A consent requirement like the one considered in Danforth

expressly grants an absolute parental veto. Therefore, a consent

24
requirement will only be valid if accompanied by an alternative

procedure that guarantees that minors in the protected classes will

be able to have an abortion without parental consent. On the other

hand, a parental notice requirement does not expressly grant

absolute veto power. The Supreme Court has declined to equate

notice with consent in all cases. H.L. v. Matheson, 101 S. Ct.

1164, 1172 n.17 (1981). Nonetheless, the Court has recognized that

there are circumstances where a requirement of notice would be

equivalent to a requirement of consent--for example, when parents

hold strong views on abortion and could be expected to obstruct or

prevent the minor from exercising her rights, perhaps by resorting

to physical or emotional abuse. See Hodgson, 110 S. Ct. at 2945-

46. To the extent that a notice requirement results in a parental

veto and to the extent that this veto affects the two protected

classifications of minors, the notice requirement would be

unconstitutional. To save such a notice requirement, an adequate

judicial bypass need only address those situations where notice can

be the equivalent of consent--in other words, situations where

notice would not be in the minor's best interests such as where the

minor has been the victim of physical or emotional abuse.

Thus, in Akron II, it was constitutionally acceptable for Ohio

to require a minor seeking a judicial bypass to allege either that

she was mature enough to make her own decision or that one or both

of her parents were engaged in a pattern of physical, sexual, or

emotional abuse against her or that the notification of her parents

was not in her best interests. The situations where notice would

25
amount to consent are amply covered by this language, and a notice

requirement is only objectionable to the extent that it amounts to

a parental veto for one or both of the protected classes of minors

set out in Bellotti. Therefore, under the language in Ohio's

notice requirement, any minor constitutionally entitled to a

judicial bypass would be able to satisfy the pleading requirements.

When the same language approved in Akron II is applied to a

consent requirement, however, the situation is very different. As

the district court noted, under Mississippi's Rule 10.01, an

immature minor who could show that an abortion was in her best

interests but who could not show that notification of her parents

was not in her best interests (as would be the case if she had

understanding and supportive parents who nonetheless were opposed

to abortion on religious grounds) would be unable to obtain

authorization for an abortion. Therefore, the district court

correctly held that Rule 10.01 "impermissibly narrows the standards

deemed essential in Bellotti." Though identical language was

approved by the Supreme Court as part of a notice requirement, the

language in Rule 10.01 is invalid as a part of a consent

requirement because it would result in some minors being unable to

obtain authorization for an abortion even though the abortion would

be in their best interests.

The Appropriate Remedy

The majority apparently does not disagree with this writer's

view that the language in Rule 10.01 is unconstitutional. Yet the

26
majority holds that the district court's order should nonetheless

be reversed because the language in the statute itself is

constitutional. The majority notes that, under Mississippi state

law, a procedural rule cannot trump a state statute. While this is

an accurate assessment of Mississippi law, the majority's

confidence that the statute and the rule necessarily conflict is

misplaced. At the risk of being branded "hypertechnical," it seems

entirely possible--albeit constitutionally impermissible given the

language in Rule 10.01--for a state court to give effect to both.

The pleading requirements set forth in Rule 10.01 are very

different from the rules of decision found in the statute. For

the purpose of this appeal, it is immaterial that the “official

position” of the Mississippi Attorney General’s office is that a

court would be required to grant a minor’s petition if she can show

that an abortion would be in her best interests; a minor will never

have a chance to make such a showing if she cannot satisfy Rule

10.01's pleading requirements.

It is clear that the language contained in Rule 10.01

impermissibly narrows the Bellotti standards for an adequate

judicial bypass. As a result, Mississippi's judicial bypass cannot

save the otherwise unconstitutional two-parent consent requirement.

Given the conclusion that the language in Rule 10.01 is

unconstitutional, the most sensible remedy is the one imposed by

the district court--to continue the injunction until Mississippi

amends Rule 10.01. Instead, the majority leaves the constitutional

27
infirmity intact and assures, with a sly wink and a nod, that no

Mississippi court would actually follow the language in Rule 10.01.

In my view, the district court made the right decision when it

continued the injunction against the enforcement of Mississippi's

parental consent requirement until the offending language in Rule

10.01 was corrected. I would affirm the judgment of the district

court in all respects.10

10. As an alternative ground for reversing the district
court, the majority notes that this is a facial challenge to a
statute. As such, the majority contends that it should only
succeed if the plaintiffs have shown that there is no set of
circumstances under which the statute would be constitutional.
While the majority correctly quotes this principle of
constitutional law, it completely misapplies it to the facts of
this case. It is immaterial that Mississippi's regulations will
only have an unconstitutional impact upon a small percentage of
the minors seeking to obtain judicial consent for an abortion.
"Legislation is measured for consistency with the Constitution by
its impact on those whose conduct it affects. . . . The proper
focus of constitutional inquiry is the group for whom the law is
a restriction, not the group for whom the law is irrelevant."
Casey, 112 S. Ct. at 2829. In this case, the proper focus is on
those immature minors seeking abortions who can show that an
abortion is in their best interests but who cannot show that
notification of their parents is not in their best interests.
For the women in that group, the application of Rule 10.01 will
mean that there is no set of circumstances where they will be
able to obtain judicial authorization for an abortion.
The majority suggests that this dissent misunderstands its
argument on this point. Even if so, this writer doubts that he
will be the only one to misunderstand. But in the interests of
increased understanding all the way around, let me be perfectly
clear on my point: In a case like this, the majority's
application of the "no-circumstances principle" is just plain
wrong. Whatever the merits of such an approach in another
context, virtually every abortion case to reach the Supreme Court
since Roe v. Wade has involved just this type of facial attack on
state regulation. See, e.g., Planned Parenthood v. Casey, 112 S.
Ct. 2791, 2816 (1992); Ohio v. Akron Center for Reproductive
Health, 110 S. Ct. 2972 (1990); Hodgson v. Minnesota, 110 S. Ct.
2926 (1990); Webster v. Reproductive Health Servs., 109 S. Ct.
3040 (1989); Thornburgh v. American College of Obstetricians &
Gynecologists, 476 U.S. 747 (1986).

28