Fargo Women's Health Organization v. Schafer

Before McMILLIAN, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Fargo Women's Health Organization and individuals associated with it seek this emergency temporary stay and injunction pending their appeal of the district court's order granting summary judgment against them and dismissing their claim. The Organization brought this action challenging the facial validity of the North Dakota Abortion Control Act, N.D.Cent. Code § 14-02.1,amended by1991 N.D. Laws ch. 141 (effective April 1, 1991). The Organization specifically challenges the Act's informed consent requirements and its definitions of "medical emergency" and "abortion." The district court concluded thatPlanned Parenthood v.Page 537Casey,___ U.S. ___,112 S.Ct. 2791,120 L.Ed.2d 674(1992), required it to hold that the statute was facially constitutional. The court then vacated its order suspending enforcement of the Act and denied the Organization's motion for stay and injunction pending appeal. The Organization then filed the motion now before us. Immediately following the argument, we extended Judge McMillian's temporary stay until such time as a reasoned opinion could be filed. We have expedited this appeal, and now vacate the temporary stay.

After North Dakota amended its Abortion Control Act in 1991, the Organization brought this action challenging two provisions of the Act carried over from the preexisting code, specifically the definition of "abortion" and the general penalty provision.¹SeeN.D.Cent. Code §§14-02.1-02.1,14-02.1-11. The Organization also challenges subsections in the 1991 amendments defining "medical emergency" and requiring a physician, except in medical emergencies, to obtain "informed consent" before performing an abortion.²See§§ 14-02.1-02(7), 14-02.1-03(1).

The parties agreed that the case should be held in abeyance until theCaseyopinion was filed because of the similarity between the Act and the Pennsylvania statute under examination inCasey.The district court granted a preliminary injunction on August 23, 1991 with respect to the twenty-four hour waiting period and informed consent provisions. AfterCaseywas decided, the court considered further briefing and argument and, on February 19, 1993, vacated the injunction and granted the State's motion for summary judgment dismissing the complaint.See Fargo Women's Health Org. v. Sinner,819 F. Supp. 862(D.N.D. 1993).

The district court held, relying onUnited States v. Salerno,481 U.S. 739,745,107 S.Ct. 2095,2100,95 L.Ed.2d 697(1987), andRust v. Sullivan,500 U.S. 173,182-84,111 S.Ct. 1759,1767,114 L.Ed.2d 233(1991), that a successful facial challenge requires a showing that no set of circumstances exists under which a statute would be constitutionally valid.819 F. Supp. at 864-65. Merely demonstrating that the Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.Id.The court thus rejected the Organization's challenge, holding that provisions nearly identical to the Act's were held facially constitutional inCasey.³Id.ThePage 538district court rejected the Organization's argument that it should factually assess the degree of burden imposed by the Act under the new "undue burden" test adopted inCasey. Id.819 F. Supp. at 85. It stated that the Organization should save this issue for "an as-applied challenge to the Act's constitutionality."Id.at 865. The district court then denied the Organization's motion for stay pending appeal, and the Organization filed this emergency motion for stay and injunction.

The Supreme Court discussed the requirements for a stay pending appeal inHilton v. Braunskill,481 U.S. 770,776,107 S.Ct. 2113,2119,95 L.Ed.2d 724(1987), and we outlined those same requirements inJames River Flood Control Assoc. v. Watt,680 F.2d 543,544(1982):

The party seeking a stay pending appeal must show (1) that it is likely to succeed on the merits; (2) that it will suffer irreparable injury unless the stay is granted; (3) that no substantial harm will come to other interested parties; and (4) that the stay will do no harm to the public interest.

We thus must evaluate the Organization's showings of these four factors. We first recognize that an analysis of likelihood of success on the merits involves the threshold consideration of simply that issue without making a final determination on the merits of the appeal. The problem before us is not unlike that in ruling on an order granting or denying a preliminary injunction. Nevertheless, this standard compels us to embark upon such an exercise, considering the other three factors and balancing all of them, just as the district court did in its order. We are convinced that the district court did not err in denying the stay on the basis that the Organization had failed to sustain its burden, particularly in light ofCasey.

The Organization first argues that the district court erred in analyzing the likelihood of success without making a factual assessment of the degree of burden imposed by the Act on the right to choose abortion. The substance of this argument is thatCasey,in announcing the undue burden standard, had employed a factual analysis. TheCaseyopinion, authored by Justices O'Connor, Kennedy, and Souter, reaffirmed the validity ofRoe v.Wade,410 U.S. 113,93 S.Ct. 705,35 L.Ed.2d 147(1973), and adopted the undue burden standard for reconciling the state's interest with the woman's constitutionally protected liberty. ___ U.S. at ___,112 S.Ct. at 2821. Under that standard, it rejected facial challenges to Pennsylvania's definition of medical emergency, the informed consent requirement, the requirement that women seeking an abortion be informed of the availability of certain materials (including information on fetal development and assistance available to the woman should she decide to carry the pregnancy to full term), and a twenty-four hour waiting period following receipt of the required information.Id.at ___ — ___,112 S.Ct. at 2822-26. The Supreme Court found unconstitutional, however, the requirement that the woman notify her spouse that she was about to have an abortion.Id.at ___,112 S.Ct. at 2831.

The three-justice opinion inCaseydid not articulate the standard it applied in analyzing the facial challenge. The three justices went to extreme care to articulate their analysis ofRoeand abandon its trimester framework.See id.___ U.S. at ___,112 S.Ct. at 2818. They specifically overruled portions ofAkron v. Akron Ctr. for Reprod. Health, Inc.,462 U.S. 416,103 S.Ct. 2481,76 L.Ed.2d 687(1983), andThornburgh v. AmericanCollege of Obstetricians Gynecologists,476 U.S. 747,106 S.Ct. 2169,90 L.Ed.2d 779(1986), as inconsistent withRoe. SeeCasey,___ U.S. at ___,112 S.Ct. at 2823. They held thatBradwell v. Illinois,83 U.S. (16 Wall.) 130,21 L.Ed. 442(1872), andHoyt v. Florida,368 U.S. 57,82 S.Ct. 159,7 L.Ed.2d 118(1961), expressed views no longer consistent with our understanding of the family, the individual, or the Constitution.See id.___ U.S. at ___ — ___,112 S.Ct. at 2830-31. Certainly after this careful review of, and selective departure from, earlier authority, had thePage 539three justices desired to depart from the facial challenge standard inUnited States v. Salerno,481 U.S. 739,745,107 S.Ct. 2095,2100,95 L.Ed.2d 697(1987), as reiterated only a year ago inRust v. Sullivan,500 U.S. 173,182-84,111 S.Ct. 1759,1767,114 L.Ed.2d 233(1991), we have no doubt that they would have done so explicitly. We draw support for this conclusion from the lack of reaction to Chief Justice Rehnquist's dissent. The Chief Justice wrote that "because this is a facial challenge to the [Pennsylvania] Act, it is insufficient for petitioners to show that the [spousal] notification provision `might operate unconstitutionally under some conceivable set of circumstances.'" ___ U.S. at ___,112 S.Ct. at 2870(Rehnquist, C.J., dissenting in part) (quotingSalerno,481 U.S. at 745,107 S.Ct. at 2100). He then added a lengthy footnote asserting that Justices O'Connor, Kennedy, and Souter had ignored this point in their analysis. In view of the Chief Justice's strong position, we believe that had the three justices been departing from theSalernostandard, they would have made a specific statement to that effect.

AfterCasey,Justice Scalia, joined by the Chief Justice and Justice White, dissented from the denial of a petition for writ of certiorari inAda v. Guam Soc. of ObstetriciansGynecologists,___ U.S. ___, ___,113 S.Ct. 633,634,121 L.Ed.2d 564(1992), stating that the Court inCaseyhad not purported to change the well-establishedSalernorule.

The Organization's brief recognizes how critical this factual assessment is to its facial challenge. We simply do not readCaseyas sustaining the argument that a factual assessment is necessary or permitted in such circumstances. We agree with the Fifth Circuit's conclusion inBarnes v. Moore,970 F.2d at 14n. 2, that it could not interpretCaseyas having overruledsub silentiolongstanding Supreme Court precedent governing facial challenges.Id.

Accordingly, we conclude that in adopting the undue burden standard inCasey,the three-justice opinion did not depart from theSalernostandard, and the district court did not err in so holding.

When we turn to the discussion inCaseyof the specific statutory provisions, we see that the three justices examined the spousal notification provision first by considering in detail the factfindings of the district court, and then by referring to scholarly journals and texts.Casey,___ U.S. at ___ — ___,112 S.Ct. at 2826-28. The three Justices made clear that the studies and findings had confirmed their common sense conclusions.Id.at ___,112 S.Ct. at 2828. CertainlyBarnescomments that, in this respect,Casey"may have employed a somewhat different standard" but it did not interpretCaseyas having overruledSalerno. See Barnes,970 F.2d at 14n. 2.Casey's discussion of the other sections of the statute reveals an analysis relying, for the most part, on direct statutory interpretation, on statutory interpretation in the court of appeals, and on earlier Supreme Court authority.See, e.g.,___ U.S. at ___,112 S.Ct. at 2822. On several occasions, particularly with relation to the twenty-four hour waiting period, the justices did consider practical consequences flowing from certain factual findings, but we do not read these discussions as essentially factual analyses.Id.at ___,112 S.Ct. at 2824. The factual components of the analysis simply follow the earlier discussion and the initial conclusion regarding the undue burden standard.Id.at ___ — ___,112 S.Ct. at 2822-26.

Our reading ofCaseyis not only material to our conclusions with respect to the facial challenge standards, but also demonstrates that the district court correctly held that the provisions of the Act are substantially similar to those examined inCasey,and thatCaseythus mandated a finding of no undue burden. In analyzing the mandatory twenty-four hour waiting period, the district court had before it an affidavit describing the distances women must travel to reach the Organization's clinic, asserting that the waiting period would often necessitate two visits to the clinic and a delay of more than twenty-four hours, andPage 540stating that this would increase the exposure of women seeking abortions to the harassment of anti-abortion protesters demonstrating outside the clinic. The affidavit contains facts almost identical to those before the district court inCasey,744 F. Supp. at 1351,1352. Assuming the affidavit statements here are true, they still do no more than establish a factual pattern held not to be an undue burden inCasey.We conclude that the district court, examining these facts in light ofCasey,did not err in determining that the Organization had not demonstrated the likelihood of success on the merits.Caseydelineates a careful balance between the constitutional rights of the women seeking abortions, and those of the State seeking to regulate the performance of abortions. The district court recognized North Dakota's interest in enforcing its statutes, and found that the plaintiffs had not demonstrated that they would be irreparably injured absent a stay.Fargo Women'sHealth Org. v. Schafer,819 F. Supp. 865,866(D.N.D. 1993). The district court did not err in so ruling. The Organization has not met its burden as required inHiltonandWatt.In balancing all of the relevant factors, we conclude that the stay pending appeal should be denied.

The Organization urges us to remand for further proceedings, as the Supreme Court did inCasey.The remand inCasey,however, was substantially limited to consideration of the question of severability, which had been specifically treated in the district court's opinion.See Casey,___ U.S. at ___,112 S.Ct. at 2833;see also Planned Parenthood v. Casey,978 F.2d 74(3d Cir. 1992) (on remand). No similar issues are presented in this case.

At argument, the State informed us that the Attorney General's Office was preparing an opinion interpreting the Act. It would read the Act to authorize that the required information which must precede the informed consent by twenty-four hours be given by telephone. The North Dakota Statute authorizes physician's agents to give this information. § 14-02.1-02(5). Thus, the State argued that the statute would not require two trips to the clinic, but only a telephone call and one trip. Further, the opinion would allow the several physicians referred to in the Act, including the referring physician, to determine gestational age, and a physician's agent could give this information over the telephone. The State's interpretation of its statute in this proposed opinion would eliminate many of the arguments supporting the presence of an undue burden. Should this opinion not be issued, or should it be issued and later substantially restricted, different issues could well be presented, particularly in a subsequent as-applied challenge to the Act.

We vacate the temporary stay pending appeal. We have expedited the appeal and will hear argument on the merits on April 14, 1993.