Parental Notice Bypass Procedure In Abortion Notice Statute Passes Facial Constitutional Challenge
ZBARAZ v. MADIGAN (July 14, 2009)
A lawsuit was filed in 1984 challenging an Illinois statute requiring parental notice of an abortion of a minor. The Court affirmed a district court order that held the act unconstitutional because it failed to provide for anonymity and an expedited appeal. The district court later concluded that an Illinois Supreme Court Rule did not cure the defect and continued an injunction in force. In 1995, the Illinois General Assembly repealed the act and replaced it with the Illinois Parental Notice of Abortion Act of 1995 (the "Act"). The Act requires a doctor to provide 48 hours notice to an adult family member of his or her intention to perform an abortion on a minor or incompetent person. In a judicial bypass procedure, a court can order notice waived if it determines by a preponderance of the evidence that a) the petitioner is sufficiently mature to intelligently decide whether to have an abortion, or b) that notification would not be in the best interest of the petitioner. The parties agreed to continue the injunction until the Supreme Court promulgated rules relating to the Act’s bypass procedure. The Supreme Court did so -- 10 years later, in 2006. On the defendants’ motion to dissolve the injunction, the district court concluded that the Act was unconstitutional because the bypass procedure failed to provide a mechanism for consent for a petitioner who failed to establish the requisite maturity level but who successfully established that it was in her best interest to waive notice. The defendants appeal.
In their opinion, Judges Cudahy, Kanne and Tinder reversed and dissolved the injunction. The Court began by noting that the applicable legal framework was not in dispute. It is that: a) minors have a right to an abortion, b) the Supreme Court has upheld certain limitations on that right, including with respect to parental involvement, and c) parental consent requirements must have an alternative for sufficiently mature minors and for those whose interests are not best served by requiring consent. Applying those principles to this facial challenge to the Act, the Court found it to be constitutional. It rejected for several reasons the district court's conclusion that the Act authorized a court to waive parental notice in a "best interest" situation but lacked language authorizing a method of consent. The lower court reasoned that a bypass court would only reach the best interest issue if it found the minor too immature to make the decision. Even if it found for the minor on the best interest inquiry, its order would include a finding of immaturity. At that point, concluded the court, the "immature" minor would be legally prohibited from giving her consent to an abortion. The Court rejected the argument and held: a) the Act did contain an implicit provision authorizing consent, b) the Act does not require a bypass court to consider maturity before best interests, c) the Act does not require findings on both maturity and best interests, d) even without the explicit power, a bypass court has the inherent power to issue an order authorizing consent as an order in aid of its judgment, and e) the lower court's interpretation of the Act cannot stand when it leads to the absurd result of disallowing best interest abortions, when one of the purposes of the Act is to provide a mechanism to allow them. Finally, the Court emphasized that it was ruling on a facial challenge and expressed no view with respect to any future "as-applied" challenge by a minor who finds the actual proceedings deficient.
