Planned Parenthood of Southern Arizona v. Lawall

180 F.3d 1022

PLANNED PARENTHOOD OF SOUTHERN ARIZONA, and its corporate chapter, Arizona Women's Clinic, Inc.; Planned Parenthood of Central and Northern Arizona, Inc.; Frederic N. Stimmell, MD, individually and on behalf of his minor patients, Plaintiffs-Appellees, v. Barbara LAWALL, as County Attorney for the County of Pima, and as representative for all other prosecuting attorneys similarly situated throughout the State of Arizona, including without limitation City Attorneys; Cochise County; City of Williams, Gary Verberg as City Attorney of City of Williams; Gila County Attorney, Defendants-Appellants, and Janet Napolitano,^* Arizona Attorney General, Defendant-Intervenor-Appellant.

No. 98-15862.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1999.

Filed June 9, 1999.

COPYRIGHT MATERIAL OMITTED

John N. Iurino, Lewis and Roca, Tucson, Arizona, for the plaintiffs-appellees.

Paula S. Bickett, Assistant Attorney General, Phoenix, Arizona, for the defendant-intervenor-appellant.

Before: CHOY and TASHIMA, Circuit Judges, and RESTANI, Court of International Trade Judge.^**

TASHIMA, Circuit Judge:

We must decide whether the Arizona parental consent statute, which contains an indeterminate judicial bypass provision, and an open-ended medical emergency provision is constitutional. We hold that it is not. Planned Parenthood of Southern Arizona and its corporate chapter, Arizona Women's Clinic, Inc., Planned Parenthood of Central and Northern Arizona, Inc., and Frederic N. Stimmell, MD, individually and on behalf of his minor patients (collectively "Planned Parenthood") challenges the facial validity of the statute. The district court permanently enjoined the statute's enforcement, holding that the statute was unconstitutional due to the lack of specific time limits in its judicial bypass provision and the vagueness of its medical emergency provision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

In 1989, the Arizona legislature adopted A.R.S. § 36-2152, a parental consent law. The district court held that the 1989 statute was unconstitutionally vague and entered a permanent injunction. See Planned Parenthood v. Neely, 804 F.Supp. 1210 (D.Ariz.1992). The State did not appeal.

In 1996, the Arizona Legislature repealed A.R.S. § 36-2152 (1989), and enacted a new parental consent statute, A.R.S. § 36-2152 (1996), effective July 20, 1996.¹ The statute contains a judicial bypass provision and a medical emergency bypass provision, both of which provide general time frames for expedited proceedings, but no specific time requirements. See A.R.S. §§ 36-2152(D), (E), and (F).

Planned Parenthood filed a motion, which the district court granted, for leave to file a supplemental complaint in the 1989 case, challenging the constitutionality of the new statute. The district court again enjoined enforcement of Arizona's parental consent law. See Planned Parenthood v. Neely, 942 F.Supp. 1578 (D.Ariz.1996). We reversed without reaching the merits, holding that it was error for the district court to grant leave to file a supplemental complaint in that closed action. See Planned Parenthood v. Neely, 130 F.3d 400 (9th Cir.1997). We remanded the case and directed the district court to dismiss it for lack of jurisdiction. See id. at 401.

Planned Parenthood then filed a new action challenging the facial validity of § 36-2152. The district court issued a permanent injunction against enforcement of the statute. Defendants (collectively the "State") appeal.

II. Standard for Reviewing Facial Challenges to Abortion Statutes

We must first resolve the threshold issue of the proper standard for reviewing facial challenges to statutes regulating abortion.² The State argues for application of the test set out in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), while Planned Parenthood advocates application of the analysis in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). This is an open question in our circuit.

In Salerno, the Supreme Court explained that:

A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that an act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an "overbreadth" doctrine outside the limited context of the First Amendment.

Salerno, 481 U.S. at 745, 107 S.Ct. 2095. Thus, under Salerno, a facial challenge to a statute will fail if the statute has any constitutional application. The Supreme Court has previously applied Salerno's "no set of circumstances" test in a few pre-Casey cases involving abortion statutes. See Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (plurality opinion) ("Akron II").

In Casey, however, the Court held that an abortion law is unconstitutional on its face if, "in a large fraction of the cases in which the statute is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." Casey, 505 U.S. at 895, 112 S.Ct. 2791. Although Casey did not expressly overrule Salerno, it is inconsistent with Salerno. Under Salerno, no factual showing of unconstitutional applications can render a law unconstitutional if it has any constitutional application. Under Casey, a factual showing of unconstitutional application in "a large fraction of the cases" where the law applies can render a law unconstitutional, even if it has some constitutional applications.

There is much debate over the meaning of Casey. Although the Court has yet to address the conflict between Casey and Salerno in a majority decision, members of the Court have offered their opinions in memoranda denying petitions for certiorari and applications for stays and injunctions pending appeals.³ In a memorandum respecting the denial of the petition for certiorari in Janklow v. Planned Parenthood, 517 U.S. 1174, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996), Justice Stevens opined that certiorari was unnecessary because Salerno's "no set of circumstances" rule was dictum and unsupported by law. Justice Stevens cited Casey and non-abortion cases as support for his proposition that "Salerno's rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context." See id. at 1175 & n. 1, 116 S.Ct. 1582.

Justices O'Connor and Souter have agreed with Justice Stevens. In Fargo Women's Health Org. v. Schafer, 507 U.S. 1013, 113 S.Ct. 1668, 123 L.Ed.2d 285 (1993), Justice O'Connor, joined by Justice Souter, explained the Casey decision:

In striking down Pennsylvania's spousal-notice provision, we did not require petitioners to show that the provision would be invalid in all circumstances. Rather, we made clear that a law restricting abortions constitutes an undue burden, and hence is invalid, if, "in a large fraction of the cases in which the law is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion."

Id. at 1014, 113 S.Ct. 1668 (O'Connor, J., concurring in denial of application for stay and injunction pending appeals) (quoting Casey, 505 U.S. at 895, 112 S.Ct. 2791) (emphasis in original).

Other members of the Court, however, disagree with this interpretation of Casey. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, has asserted that the question of whether Salerno still applies in the abortion context is a "question that virtually cries out for our review." Janklow, 517 U.S. at 1178, 116 S.Ct. 1582. (Scalia, J., dissenting from the denial of cert.). Additionally, Justice Scalia, joined by Chief Justice Rehnquist and Justice White, has also suggested that the only exception to the Salerno rule is for First Amendment cases, and "the Court did not purport to change this well-established rule in Casey." Ada v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012-13, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from the denial of cert.).

Since Casey, many lower courts have held that Casey displaces Salerno in the abortion context. See, e.g., Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193-94 (6th Cir.1997) (concluding that Salerno is inapplicable to facial challenges to abortion regulations and applying Casey's undue burden standard), cert. denied, ___ U.S. ___, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998); Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir.1996) (noting the difference between Casey and Salerno and applying Casey's undue burden standard to facial abortion challenge); Planned Parenthood v. Miller, 63 F.3d 1452, 1458 (8th Cir.1995) (choosing to follow "what the Supreme Court actually did-rather than what it failed to say-and apply the undue-burden test" to facial abortion challenge);⁴Casey v. Planned Parenthood, 14 F.3d 848, 863 n. 21 (3d Cir.1994) (noting that Supreme Court "set a new standard for facial challenges to pre-viability abortion laws" under Casey); Hope Clinic v. Ryan, 995 F.Supp. 847, 859-60 (N.D.Ill. 1998) (rejecting Salerno rule in light of Casey's subsequent analysis, and applying undue burden standard); A Woman's Choice-E. Side Women's Clinic v. Newman, 904 F.Supp. 1434, 1447-48 (S.D.Ind. 1995) ("This court believes that Casey effectively displaced Salerno's application to abortion laws.") Thus far, only the Fifth Circuit continues to apply the Salerno test to facial abortion challenges after Casey.⁵See Barnes v. Moore, 970 F.2d 12, 14 (5th Cir.1992).

We have previously suggested that we would apply the Casey rule to facial challenges of abortion regulations. In Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir.1996) (en banc), rev'd on other...