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

BREYER, Circuit Judge

(dissenting).

As I understand appellants’ present, primary challenge to the Massachusetts abortion-consent statute, it does not call for federal court abstention, but neither does it require further district court hearings.

The Massachusetts statute requires an unmarried minor seeking an abortion either to obtain her parents’ consent or to obtain the permission of a judge, who must grant permission if he finds either that the minor is “mature and capable of giving informed consent,” or that an “abortion ... would be in her best interests.” Mass.Gen. Laws Ann. ch. 112, § 12S (West 1983) (emphasis added.) The Supreme Court, in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II), wrote that such a statute is constitutional. But, appellants now argue the Court wrote this without the benefit of a record that would show how such a statute worked in *470practice. They want to compile a factual record in the district court and obtain court findings of fact that, in their view, will show that the statute unconstitutionally burdens the right of a minor to choose to have an abortion.

The panel would remand this case to permit the appellants to present the evidence that appellants hope will lead to these findings — and a consequent holding of unconstitutionality. After reviewing the facts that appellants hope to establish, I would not remand this case, for I do not believe those facts, even if established, could lead the Supreme Court to change its Bellotti II statement that such a statute is constitutional.

To understand why I reach this conclusion, one should first consider precisely what appellants hope to show. The majority’s summary, drawn from an article that appellants attached to their court papers, indicates they wish to show the following:

(1) Of 62 superior court judges, 10 have recused themselves [from abortion cases] and approximately Vi of the remainder are avoided for reasons of hostility; sometimes many of the latter are sitting in the same county;
(2) Courts are not open evenings or weekends; the difficulty in scheduling particular judges requires 2 or more trips by a minor, with delays of 2 to 4 days in obtaining an abortion being common;
(3) Judicial authorizations are sought by few minority applicants;
(4) Any decrease in Massachusetts abortions seems to be accounted for by visits to clinics in neighboring New Hampshire and Maine;
(5) Consultation with parents does not seem to be either stimulated by § 12S or helpful;
(6) The hearings are often rituals, the minors being well coached, and ‘maturity’ being difficult to judge in a brief session; and
(7) Of 1,571 applications for abortion between 1981 and 1983, only 7 were denied and 5 of these denials were overturned on appeal.

See Panel Opinion, at 461 n. 6. Appellants believe that findings of this sort will show that the statute’s judicial approval requirements unreasonably intimidate minors, while at the same time, given the overwhelming approval rate, the statute serves no significant ‘screening’ function.

Next, one should examine the proceedings in the Eighth Circuit case, Hodgson v. Minnesota, 648 F.Supp. 756 (D.Minn.1986), rev’d in part, 853 F.2d 1452 (8th Cir.1988). The plaintiffs in Hodgson created the very kind of factual record that plaintiffs seek to establish here. See Panel Opinion at 463. The district court, after hearing evidence, made findings of fact at least as favorable to plaintiffs as any that plaintiffs here hope to establish. It found, for example, that the

experience of going to court for a judicial authorization produces fear and tension in many minors. Minors are apprehensive about the prospect of facing an authority figure who held in his hands the power to veto their decision to proceed without notifying one or both parents. Many minors are angry and resentful at being required to justify their decision before complete strangers. Despite the confidentiality of the proceeding, many minors resent having to reveal intimate details of their personal lives to these strangers. Finally, minors are left feeling guilty and ashamed about their lifestyle and their decision to terminate their pregnancy. Some mature minors and some minors whose best interests it is to proceed without notifying their parents are so daunted by the judicial proceeding that they forego the bypass option and either notify their parents or carry to term. Some minors are so upset by the bypass proceeding that they consider it more difficult than the medical procedure itself. Indeed, the anxiety resulting from the bypass proceeding may linger until the time of the medical procedure and thus render the latter more difficult than necessary.

648 F.Supp. at 763-64. The district court also found that the “effective length of the delay [that the statutory procedure ere-*471ated] may reach a week or more” in many cases. Id. at 765. It found that during one period, out of 3,573 judicial approval petitions filed in Minnesota courts, 6 petitions were withdrawn before decision, 9 were denied, and 3,558 were granted. Id. The district court drew a factual conclusion of the sort that plaintiffs urge here; it said that the statute “fails to serve the State’s asserted interest in fostering intra-family communication and protecting pregnant minors.” Id. at 775.

The important point about Hodgson is what the court did next. Despite these findings, the court did not say the statute was unconstitutional (except in two respects not relevant for present purposes). Rather, the district court said that the statute was constitutional. Its reason was simply that the Supreme Court had indicated in Bellotti II and Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), that statutes of the sort at issue (here and in Hodg-son) are constitutional.

The Eighth Circuit, sitting en banc, held that the entire statute was constitutional. It reversed (by a divided vote) the district court’s findings of unconstitutionality in respect to two special parts of the statute. I can find no indication that any judge of that appellate court disagreed with the district court about the statute’s basic constitutionality.

In my view, the Eighth Circuit is correct. There is no point in permitting appellants to prove the general facts about the statute’s operation that they seek to prove, facts that amount to a showing that court hearings themselves may inhibit many minors from seeking permission for an abortion, that the hearings involve several days’ delay, and that the process leads to nearly universal court approval of minors’ petitions for abortions. There is no point because, assuming plaintiffs can make such a showing, I still do not see how one could reconcile a holding that the statute is unconstitutional with Bellotti II. In Bellotti II the Court held that the state may regulate abortions for minors, that no third party, such as a parent, may have a categorical “veto" over a decision to have an abortion, but that a judge may review a decision (though the judge may withhold permission only if the minor is immature and the abortion is not in her best interest). 443 U.S. at 633-51, 99 S.Ct. at 3042-52. Justice Powell specifically stated that this very statute “satisfies constitutional standards in large part,” though it “falls short in two respects.” 443 U.S. at 651, 99 S.Ct. at 3052. These “two respects” are not now present in the (amended) statute before us.

I conclude that the matter is not perfectly clear. That is because, in a footnote, Justice Powell added the following:

Intervenors take issue with the Supreme Judicial Court’s assurances that judicial proceedings will provide the necessary confidentiality, lack of procedural burden, and speed of resolution. In the absence of any evidence as to the operation of judicial proceedings under § 12S ... we must assume that the Supreme Judicial Court’s judgment is correct.

443 U.S. at 645 n. 25, 99 S.Ct. at 3049 n. 25. This footnote, however, seems to me to refer to challenges to the manner in which Massachusetts implements its statute, whether, for example, its procedural rules are adequate or (perhaps) whether the courts follow them in practice. And, these challenges seem appropriately brought, in the first instance, before the Massachusetts courts. The footnote, in my view, does not refer to a challenge to the statute itself based upon the view that the very existence of this judicial approval proceeding improperly burdens the minor’s right to choose an abortion. That is to say, the footnote refers to delays of more than 2 to 4 days, and to burdens other than the psychological burden inherent in the fact of the proceeding itself. That even expeditious judicial proceedings might take several days, that their very existence might intimidate minors, that those most likely to feel intimidated are those least able to cope effectively with the judicial system, all would seem fairly obvious from the outset. And, had the Court intended to leave open the possibility that this type of showing would lead to a change of mind about the statute, it would not have said so explicitly *472that the statute was constitutional; or, at least, the footnote would have made this possibility more apparent. I ,also note that appellants nowhere explain how their proposed factual showing is designed to bring about a “judicial approval” system that is significantly less intimidating or more useful. Yet, the Court’s opinions in Bellotti II lead me to think it virtually inconceivable that the Court believes the Constitution requires a state to permit even immature minors to choose an abortion without anyone’s (neither parent’s nor judge’s) consent.

I recognize a degree of ambiguity in the footnote, and I recognize the possibility that the Supreme Court could change its mind about this statute. It is also true that factual records, as in the instance of school desegregation, sometimes help produce a change of mind. Yet, before courts spend the considerable time, effort, and resources involved in building records of “legislative fact” not specific to the particular case at issue, there must be more reason than is present here to believe the law is different from, or about to become different from, what the Supreme Court has previously stated. Otherwise, it seems more expeditious for a lower court simply to point out that, on the present state of the law, the factual proof would not change the legal result. Those challenging the law may submit to courts of appeals, and then to the Supreme Court, the facts they wish to show by means of statements in their briefs or references to articles, or appropriate appendices. The appropriate courts can then make clear whether the factual showing could make a legal difference. This is not an area of the law where significant challenges to prior precedent are likely to escape, the Court’s attention.

Finally, I note that appellants, in the district court, raised a fundamentally different type of challenge to the Massachusetts law, a challenge that they seem to press somewhat less forcefully in this court. In the district court they seemed to say that even if the Massachusetts statute is itself constitutional, Massachusetts has not applied its law in a constitutional way; they seemed to say that Massachusetts judges, for example, did not correctly follow Massachusetts’ own law, as embodied in its statute, its Standing Order, Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, Appendix 2 (1st Cir.1981), and in Justice Liacos’ modification of that Standing Order, Panel Opinion at 460-461. Alternatively, lower Massachusetts courts may not have given the words in these legal documents constitutionally permissible interpretations. Insofar as appellants raise these kinds of claims (and I must admit I am not certain they are still doing so), the district court was right to abstain in light of the “comity” considerations that the district court set forth. It seems inappropriate for a federal district court, in the present circumstance, to hold a fact based hearing on the question of whether Massachusetts judges are systematically violating Massachusetts’ own law (e.g., by harassing minors seeking an abortion) rather than requiring these appellants to raise such issues in the state proceedings where they are already parties, thereby leaving to the Massachusetts Supreme Judicial Court the job of administering its own judicial system. Cf. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (abstention appropriate because challenged state procedures for discipline of attorneys are “judicial in nature”); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (abstention appropriate because challenged state statutory contempt procedures are process “through which [the state] vindicates the regular operation of its judicial system”); Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (abstention appropriate because eminent domain proceedings are “special and peculiar,” and “intimately involved with sovereign prerogative”); see also Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (while suit challenging state allocation of water is not barred by abstention doctrine, “several factors” counsel against concurrent federal jurisdiction). Insofar as appellants’ challenge turns on interpreta*473tions of Massachusetts law, Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), counsels abstention.

For these reasons I would affirm the judgment of the district court.