Marilynn Frederiksen v. Lisa Madigan

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1620
D AVID Z BARAZ, M.D., A LLAN G. C HARLES, M.D., AND
M ARILYNN C. F REDERIKSEN, M.D.,
Plaintiffs-Appellees,
v.
L ISA M ADIGAN, Attorney General of Illinois, AND
A NITA A LVAREZ, State’s Attorney of Cook County,
Illinois, in their official capacities,
Defendants-Appellants.
No. 08-1782
D AVID Z BARAZ, M.D., A LLAN G. C HARLES, M.D., AND
M ARILYNN C. F REDERIKSEN, M.D.,
Plaintiffs-Appellees,
v.
L ISA M ADIGAN, Attorney General of Illinois, AND
A NITA A LVAREZ, State’s Attorney of Cook County,
Illinois, in their official capacities,
Defendants-Appellees,
A PPEAL OF:
S TEWART U MHOLTZ AND E DWARD D ETERS,
Appellants.
2 Nos. 08-1620 & 08-1782
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 84 C 771—David H. Coar, Judge.
A RGUED JANUARY 14, 2009—D ECIDED JULY 14, 2009
Before C UDAHY, K ANNE and T INDER, Circuit Judges.
C UDAHY, Circuit Judge. There is no dispute that minors,
like adult women, have a constitutional right to an
abortion that may not be blocked by significant obstacles
from the State. Nor is there any doubt that the State has
an important interest in the welfare of its children that
justifies regulation of the abortion of minors that
would not be upheld if applied to adult women.
This case is merely the latest in a string of facial chal-
lenges to one such regulation, the Illinois Parental Notice
of Abortion Act of 1995. Because we believe that this
iteration of the notice statute, and the Illinois Supreme
Court rule adopted to implement it, respect the Supreme
Court’s precedent regarding parental involvement laws,
we uphold the Illinois notice act as constitutional on
its face.
Nos. 08-1620 & 08-1782 3
I
A
The question presented here is a narrow one: whether
the Illinois Parental Notice of Abortion Act of 1995, 750
ILCS 70/1 et seq., is facially invalid because its judicial
bypass provisions lack language authorizing a state
court judge to issue an order allowing an immature minor
to consent to an abortion without notifying her parents,
where an abortion without notice would be in her best
interests. This question requires unpacking. We start
with the language of the statute.
The relevant sections of the notice act are set forth in
full in the appendix. The act requires “the physician or his
or her agent” to provide “at least 48 hours actual notice to
an adult family member of the pregnant minor or incompe-
tent person 1 of his or her intention to perform the abor-
tion,” unless the physician or agent has received a
certified written statement from a referring physician
that such notice has been provided, or notice is not
possible after reasonable effort, in which case forty-eight
hours “constructive notice” (defined as “notice by
certified mail to the last known address of the person
entitled to notice”) is sufficient. §§ 10, 15.
1
For ease of reference, we use “minor” or “petitioner” to refer
to both minors and incompetent persons under the act. This
opinion and its analysis does not depend upon the meaning
of the term “incompetent,” and therefore we take no position
on this state-law question.
4 Nos. 08-1620 & 08-1782
The act provides that parental notice shall be waived in
a number of circumstances, § 20(1)–(5), including, as
relevant here, if the minor participates in a judicial bypass
procedure as outlined in § 25 of the act. A woman seeking
a judicial bypass from notice “may petition any circuit
court for a waiver of the notice requirement and may
participate in proceedings on her own behalf.” § 25(b).
In addition, the bypass court is required to appoint a
guardian ad litem for the minor, to advise her that she
has a right to court-appointed counsel and to provide
her with counsel upon her request. Id. Court proceedings
under the act “shall be confidential and shall ensure the
anonymity of the minor.” § 25(c). The minor “shall have
the right to file her petition using a pseudonym or using
solely her initials.” Id. The act further provides that
judicial bypass proceedings shall be given precedence
over other pending matters “to the extent necessary to
ensure that the court reaches a decision promptly.” Id.
The court shall rule and shall issue written findings
of fact and conclusions of law within forty-eight hours
of the time the petition is filed, unless the minor
requests additional time. Id. If the court fails to rule
within the forty-eight-hour period, the petition shall be
deemed to have been granted and the notice require-
ment shall be waived. Id.
The heart of the act’s bypass procedure is § 25(d), which
provides:
Notice shall be waived if the court finds by a prepon-
derance of the evidence either:
Nos. 08-1620 & 08-1782 5
(1) that the minor or incompetent person is suffi-
ciently mature and well enough informed to
decide intelligently whether to have an abortion, or
(2) that notification under Section 15 of this Act
would not be in the best interests of the minor or
incompetent person.
The judicial bypass court “shall issue written and specific
factual findings and legal conclusions supporting its
decision and shall order that a confidential record of the
evidence and the judge’s findings and conclusions be
maintained.” § 25(e). The act requires that an expedited
confidential appeal be available, as the Illinois Supreme
Court provides by rule, to any minor to whom the circuit
court has denied a waiver of notice. § 25(f). However,
“[a]n order authorizing an abortion without notice shall
not be subject to appeal.” Id. Finally, the act “respectfully
request[s]” the Illinois Supreme Court “to promulgate
any rules and regulations necessary to ensure that pro-
ceedings under [the] Act [be] handled in an expeditious
and confidential matter.” § 25(g).
A physician who violates the notice act is to be referred
to the Illinois State Medical Disciplinary Board,
225 ILCS 60/23(A)(4) which may recommend suspension
or revocation of the physician’s medical license, 225
ILCS 60/22(A)(40), or imposition of civil penalties of up
to $5,000 per violation, 225 ILCS 60/22(C).
6 Nos. 08-1620 & 08-1782
B
The plaintiffs filed this lawsuit in the district court in
1984, claiming that an earlier iteration of the notice act,
the Parental Notice of Abortion Act of 1983, was con-
stitutionally deficient on its face. The district court certified
a plaintiff class of physicians and a defendant class of
state’s attorneys,2 but ultimately held that the 1983 act was
unconstitutional because it failed to ensure a minor’s
anonymity or to provide for an expedited appeal. Zbaraz v.
Hartigan, 584 F. Supp. 1452 (N.D. Ill. 1984). We affirmed
and continued the injunction so that the Illinois Supreme
Court could promulgate rules implementing the 1983 act’s
judicial bypass procedure in a way that would ensure
expedited appeals and anonymity. Zbaraz v. Hartigan, 763
F.2d 1532 (7th Cir. 1985). The Illinois Supreme Court
later promulgated such a rule, but the district court held
that it was insufficient and continued the permanent
injunction. Zbaraz v. Hartigan, 776 F. Supp. 375 (N.D. Ill.
1991). The Illinois General Assembly then repealed the
1983 act and replaced it with the 1995 act now before us.
2
The certified plaintiff class includes licensed physicians
who perform or desire to perform abortions for unemancipated
minors and disabled persons in Illinois, both on their own
behalves and on behalf of certain of their patients, including
minors capable of giving informed consent to an abortion
or whose best interests would not be served by notice to both
parents of the minor’s intent to obtain an abortion. The defen-
dant class includes all state’s attorneys of the various counties
of Illinois.
Nos. 08-1620 & 08-1782 7
On or about June 7, 1995, the plaintiffs amended their
complaint to challenge the constitutionality of the 1995
act. The parties agreed to an injunction barring enforce-
ment of the 1995 act until the Illinois Supreme Court
promulgated new rules to implement the new act’s
judicial bypass. Then in February 1996, the district court
entered a permanent injunction because the Illinois Su-
preme Court announced that it would not promulgate
any such rules. The permanent injunction order expressly
deferred the plaintiffs’ constitutional challenges until
such time as the Illinois Supreme Court promulgated rules.
Ten years later, in September 2006, the Illinois Supreme
Court adopted Rule 303A, entitled “Expedited and Confi-
dential Proceedings Under the Parental Notification of
Abortion Act.” Rule 303A purports to provide the neces-
sary appeals procedures to implement the judicial
bypass, as called for by § 25(g) of the notice act. The rule,
set forth in its entirety in the appendix, reiterates
that a judicial bypass court shall endeavor to rule at the
close of any hearing, but must rule and issue written
findings of fact and conclusions of law within forty-eight
hours of the time that the petition is filed, weekends and
holidays excluded, except at the minor’s request for more
time. The rule prescribes the content of a petition for
appeal and supporting brief, and requires that they be filed
within two days (weekends and holidays again excluded)
of a circuit court decision denying relief, except that, again,
the minor may request more time. After receiving the
petition, brief and record on appeal, the appellate court
has three work days to “issue a confidential written
order.” Rule 303A(g). The appellate court shall appoint
8 Nos. 08-1620 & 08-1782
counsel for the petitioner at her request, and all proceed-
ings under the rule are to be confidential. Rule 303A(d), (f).
The petitioner is to be identified in the petition and in
any supporting brief only by her first name and last
initial, or by initials only, or by pseudonym. All docu-
ments relating to the proceedings shall be sealed, and all
notifications of court rulings under the rule may be infor-
mal and shall be confidential. Rule 303A(f).
In light of Rule 303A, the defendants filed a motion to
dissolve the permanent injunction under Fed. R. Civ. P.
60(b)(5) and (6). The district court denied that motion, as
well as a renewed motion, and continued the permanent
injunction. The district court found that even with
Rule 303A, the 1995 notice act was unconstitutional
because it lacked language authorizing bypass courts to
issue orders allowing immature minors to consent to
abortions without parental notice where an abortion
without notice would be in their best interests. The
district court explained:
The 1995 Act authorizes the court to waive parental
notification when it is in the “best interest” of the child,
but does not authorize a method of consent for the
abortion. Thus, under the statute, a “best interest”
minor who has waived parental notification is left
without a mechanism to obtain consent for the abor-
tion, and thus is in legal limbo.
Zbaraz v. Madigan, No. 84 C 771, 2008 WL 589028, at *3
(N.D. Ill. Feb. 28, 2008). Though it is not explicit in the
district court’s opinion, it is clear from the plaintiffs’
briefs below and on appeal that this conclusion is predi-
Nos. 08-1620 & 08-1782 9
cated on the following chain of argument: (1) A bypass
court will necessarily consider a minor’s maturity first
and only reach the “best interests” question if it con-
cludes that a minor is too immature to make the abortion
decision on her own. (2) Such a finding of immaturity will
necessarily be included in the bypass court’s decision
waiving parental notice because the bypass court is
required to “issue written and specific factual findings
and legal conclusions supporting its decision.” § 25(e).
(3) Once a minor has been adjudicated to be immature, she
will be unable to consent to an abortion on her own,
because of Illinois’ common law rule requiring informed
consent to all medical procedures. According to the
plaintiffs, an immature minor cannot give informed
consent. As will appear, we reject each tenet of this line
of argument, as well as the district court’s holding that
the bypass court lacks the authority to issue an order
necessary to enforce its judgment that an abortion
without parental notice is in a minor’s best interests.
The defendants brought this appeal. Hours after the
defendants filed their notice of appeal, Illinois State’s
Attorneys Edward Deters and Stewart Umholtz, repre-
sented by the Thomas More Society Pro-Life Law Center,
filed in the district court a motion to intervene in the
case and a motion to reconsider the judgment. The district
court denied both motions, and the proposed intervenors
filed a notice of appeal from that order and from the
district court’s earlier order denying the defendants’
renewed motion to dissolve the permanent injunction.
We consolidated the appeals of the defendants and the
proposed intervenors.
10 Nos. 08-1620 & 08-1782
II
A
The proposed intervenors argue that we lack juris-
diction over this case because of their timely filed motion
to alter or amend the judgment under Fed R. Civ. P. 59,
which they argue suspended the defendants’ notice to
appeal filed earlier on the same day. The proposed
intervenors ignore the effect of Fed. R. App. P. 4(a)(4)(B)(i),
which provides:
If a party files a notice of appeal after the court an-
nounces or enters a judgment—but before it disposes
of any motion listed in Rule 4(a)(4)(A) [including Rule
59 motions]—the notice becomes effective to appeal
a judgment or order, in whole or in part, when the
order disposing of the last such remaining motion
is entered.
This rule means that the defendants’ notice of appeal, even
if it was properly suspended pending the lower court’s
disposition of the proposed intervenors’ Rule 59 motion,
takes immediate effect upon that disposition and has
transferred jurisdiction to us.
In any event, the district court properly ruled that it
lacked jurisdiction to decide the Rule 59 motion, because
the proposed intervenors were not before the court
when they filed it. Rule 59 requires that the person or
entity filing the motion to alter the judgment be a “party”
before the court. The proposed intervenors make two
arguments that they are “parties” for Rule 59 purposes.
Both arguments fail.
Nos. 08-1620 & 08-1782 11
First, they argue that they should have been allowed to
intervene under Fed. R. Civ. P. 24. Rule 24 provides that
a district court must allow a nonparty to intervene as of
right upon the filing of a “timely” motion wherein the
nonparty “claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately
represent that interest.” Rule 24(a)(2). The district court’s
decision that the proposed intervenors’ motion to
intervene was not timely is reviewed for an abuse of
discretion. Larson v. JPMorgan Chase & Co., 530 F.3d 578,
583–84 (7th Cir. 2008). Here, the proposed intervenors
waited to file their motion to intervene until after the
district court had denied two motions to reconsider the
ruling continuing the permanent injunction, and until
after the defendants had filed their notice of appeal, all
of which occurred eleven months after the defendants
filed their Rule 60(b) motion, and nearly twenty-five
years after the initiation of the litigation. It was not an
abuse of discretion for the district court to find that this
filing was untimely. Moreover, it would also have
been proper to deny the motion to intervene because the
existing parties adequately represent the interests of the
proposed intervenors. The proposed intervenors are
members of the defendant class of Illinois state’s
attorneys, and they do not argue that there are any
factual or legal distinctions that make their interests in
this case divergent from the interests of the named class
representatives. The proposed intervenors raise the same
12 Nos. 08-1620 & 08-1782
objection to the district court’s denial of the defendants’
Rule 60(b) motion and, in fact, they join in most of the
defendants’ brief on appeal. We see no reason why
Illinois Attorney General Lisa Madigan and Cook
County State’s Attorney Anita Alvarez cannot ade-
quately represent the proposed intervenors’ interests.
Second, the proposed intervenors argue that even if
their motion to intervene is properly denied, they should
be allowed to bring their Rule 59 motion without formal
intervention as unnamed class members, citing Devlin v.
Scardelletti, 536 U.S. 1 (2002) (holding that unnamed class
members who are bound by the terms of a settlement
and have objected to the settlement at a fairness hearing
have a right to appeal the settlement without formal
intervention). But again, the purpose of allowing
nonparties to appeal without formal intervention under
Devlin is to grant those nonparties a forum to assert
interests that diverge from those of the named class
representative. See Gautreaux v. Chi. Hous. Auth., 475 F.3d
845, 851 (7th Cir. 2007) (“Devlin . . . reflects a concern
that, without an opportunity to appeal, unnamed class
members will have no other recourse than to accept the
terms of a settlement and to forfeit further pursuit of their
claim.”). No such purpose would be vindicated here.
Again, the proposed intervenors have not raised divergent
interests that only they can adequately represent. Their
interests, from all that appears, are in line with those of
the Illinois Attorney General and the Illinois State’s
Attorney. We therefore affirm the district court’s order
denying the proposed intervenors’ motions.
Nos. 08-1620 & 08-1782 13
B
This case comes to us from the district court’s denial of
the defendants’ motion to dissolve the permanent injunc-
tion barring enforcement of the statute. Federal Rule of
Civil Procedure 60(b) provides that “the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding” if “(5) the judgment has been
satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or (6) any other
reason that justifies relief.” The district court’s denial of
the Rule 60(b) motion is reviewed for abuse of discretion
to determine whether “a significant change in circum-
stances warrants revision of the [judgment],” Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992); see
United States v. Krilich, 303 F.3d 784, 789-90 (7th Cir. 2002),
but the constitutional questions decided by that court
are reviewed de novo, Gonzalez v. O’Connell, 355 F.3d
1010, 1019 (7th Cir. 2004) (citations omitted).
The district court’s February 9, 1996, permanent in-
junction order, entered by Judge Plunkett, found that
Section 25 of the notice act requested the Illinois
Supreme Court to promulgate appellate rules to ensure
that judicial bypass proceedings under the act would be
handled in “an expeditious and competent manner.” 3
Judge Plunkett’s order reiterated findings made by
3
Under the Illinois Constitution, the Illinois Supreme Court,
not the General Assembly, must promulgate rules regarding
appellate procedure. Ill. Const. art. VI, § 16.
14 Nos. 08-1620 & 08-1782
Judge Will in support of the earlier preliminary injunc-
tion. In particular, Judge Plunkett reiterated Judge Will’s
finding that the act was incomplete and could not be
“adjudicated” or implemented until the Illinois Supreme
Court promulgated appellate rules. In the preliminary
injunction order, Judge Will “deferred any adjudication as
to the constitutionality” of the act until the Illinois Su-
preme Court promulgated such rules. Following
Judge Will’s order, the Illinois Supreme Court advised
the district court, without explanation, that “no additional
rules will be promulgated under the 1995 Act.” Judge
Plunkett therefore concluded that the act “remains incom-
plete and cannot be implemented,” and he permanently
enjoined its enforcement without addressing its constitu-
tionality.
It is clear from Judge Plunkett’s order that the
permanent injunction was meant to be in place only
until such time as the Illinois Supreme Court promulgated
appellate rules governing judicial bypass proceedings
under the act. Now that the Illinois high court has
adopted Rule 303A, it is appropriate to address the con-
stitutional questions deferred in the permanent injunction
order. Because we find that Rule 303A completes the
act, and that the notice statute is otherwise constitutional
on its face, “applying [the injunction] prospectively is no
longer equitable.” Rule 60(b)(5). In other words, “a signifi-
cant change in circumstances warrants revision of the
[judgment],” Rufo, 502 U.S. at 383, and the time has
come to lift the permanent injunction.
Nos. 08-1620 & 08-1782 15
C
The constitutional framework governing this appeal
is not materially in dispute. “[C]onstitutional rights
do not mature and come into being magically only when
one attains the state-defined age of majority.” Planned
Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976).
Minors, like adult women, have a constitutional right to
an abortion, and “the State does not have the constitu-
tional authority to give a third party an absolute, and
possibly arbitrary, veto over the decision of the physician
and his patient to terminate the patient’s pregnancy,
regardless of the reason for withholding the consent.” Id.
Indeed, an unwanted pregnancy may be more of a crisis
for a minor than for an adult, not least because she
cannot postpone the abortion decision until her
majority, and therefore “ ‘there are few situations in
which denying a minor the right to make an important
decision will have consequences so grave and indelible.’ ”
H.L. v. Matheson, 450 U.S. 398, 436 (1981) (Marshall, J.,
dissenting) (quoting Bellotti v. Baird, 443 U.S. 622, 642
(1979) (plurality opinion of Powell, J.) (Bellotti II)).
However, the Supreme Court has “long upheld” regula-
tions on the abortion of minors that would be uncon-
stitutional if applied to adult women, including laws
fostering parental involvement in a minor’s decision to
have an abortion. Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 326-27 & n.1 (2006) (noting that
the Supreme Court has upheld such laws and listing
parental consent and notification statutes in forty-four
states). Such regulations are said to be justified by the
State’s important interest in the welfare of its children.
16 Nos. 08-1620 & 08-1782
Planned Parenthood Ass’n of Kansas City, Mo. v. Ashcroft,
462 U.S. 476, 490–91 (1983); Matheson, 450 U.S. at 411 (“As
applied to immature and dependent minors,” a notice
law “plainly serves the important considerations of
family integrity and protecting adolescents.”) (footnotes
omitted). Nonetheless, consistent with the holding that
states may not impose an arbitrary veto on a minor’s
abortion right, the Supreme Court has required parental
consent laws to include an alternative to parental consent
for mature minors and those whose best interests are
served thereby:
[E]very minor must have the opportunity—if she
so desires—to go directly to a court without first
consulting or notifying her parents. If she satisfies
the court that she is mature and well enough
informed to make intelligently the abortion decision
on her own, the court must authorize her to act with-
out parental consultation or consent. If she fails to
satisfy the court that she is competent to make this
decision independently, she must be permitted to
show that an abortion nevertheless would be in her
best interests. If the court is persuaded that it is, the
court must authorize the abortion. If, however, the
court is not persuaded by the minor that she is
mature or that the abortion would be in her best
interests, it may decline to sanction the operation.
Bellotti II, 443 U.S. at 647–48.4
4
The plurality in Bellotti II also required that the alternative to
parental consent must “be completed with anonymity and
sufficient expedition to provide an effective opportunity for
(continued...)
Nos. 08-1620 & 08-1782 17
The plaintiffs argue, and we have previously held, see
Zbaraz v. Hartigan, 763 F.2d 1532, 1539 (7th Cir. 1985)
(Zbaraz I); Ind. Planned Parenthood Affiliates Ass’n, Inc. v.
Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983), that the
Bellotti II standard also applies to notice statutes. We
need not revisit this question here, because we find that
the Illinois notice statute is constitutional under
Bellotti II’s criteria for consent statutes and therefore that
a fortiori it satisfies any criteria that might be required
for bypass provisions in notice statutes. See Ohio v.
Akron Ctr. for Reprod. Health, 497 U.S. 502, 510 (1990) (Akron
II). However, we note that subsequent Supreme Court
case law conflicts with the conclusions in Zbaraz I and
Pearson, both of which rest on language in opinions ad-
dressed only to the constitutional requirements of re-
quiring parental consent (in contrast to requiring merely
notification). See Pearson, 716 F.2d at 1132 (citing Bellotti II,
443 U.S. at 647, and City of Akron v. Akron Ctr. for Reprod.
Health, 462 U.S. 416, n.10 & n.31 (1983) (Akron I)); Zbaraz I,
763 F.2d at 1539 (citing Bellotti II, 443 U.S. at 651, and
Pearson, 716 F.2d at 1132). In the two-and-a-half decades
since our decisions in Pearson and Zbaraz I, the Supreme
Court has repeatedly stated that it has “declined to
decide whether a parental notification statute must
include some sort of bypass provision to be constitu-
tional.” Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (per
(...continued)
an abortion to be obtained.” Bellotti II, 443 U.S. at 644. The
plaintiffs do not dispute that Rule 303A satisfies Bellotti II’s
speed and anonymity requirements.
18 Nos. 08-1620 & 08-1782
curiam) (discussing Akron II, 497 U.S. at 510); see also
Akron II, 497 U.S. at 510 (“We leave the question open,
because, whether or not the Fourteenth Amendment
requires notice statutes to contain bypass procedures,
H.B. 319’s bypass procedure meets the requirements
identified for parental consent statutes in Danforth,
Bellotti [II], Ashcroft, and Akron [I].”). Like the Court in
Akron II, we do not reach out to decide whether, if we
were faced with a notice statute that did not include a
bypass procedure such as the procedure at issue here,
such a statute would be valid.5
5
The plaintiffs argue that we are bound by the holding in
Zbaraz I as the “law of the case.” Aside from the fact that the
question need not be decided here, the law of the case
doctrine does not apply to previous rulings based on plain error.
Creek v. Vill. of Westhaven, 144 F.3d 441, 446 (7th Cir. 1998) (“This
court has long held that matters decided on appeal become
the law of the case to be followed . . . on second appeal, in the
appellate court, unless there is plain error of law in the original
decision. ”) (internal quotation marks and citations omitted and
emphasis added). There were strong indications even prior to
Akron II that the Supreme Court had not decided whether to
apply the same standards to notice statutes as it applied to
consent statutes. See H.L. v. Matheson, 450 U.S. 398, 411 & n.17
(1981) (upholding a two-parent notice statute without a bypass
alternative as applied to immature minors whose best interests
are served by notice and indicating that notice statutes are not
equivalent to consent statutes because they do not give anyone
a veto power over a minor’s abortion decision). Compare Akron
I, 462 U.S. at 441, n.31 (noting that a bypass may not be constitu-
tionally required in notice statutes but that some alternative to
(continued...)
Nos. 08-1620 & 08-1782 19
With these principles in mind, we address the constitu-
tionality of the bypass provision in Illinois’ notice statute.
D
This is a facial challenge. Under the Supreme Court’s
precedent governing facial challenges to abortion laws, a
law enacted to promote a legitimate state interest will
(...continued)
parental notice is required, at least for mature minors), and Akron
II, 497 U.S. at 523 (Stevens, J., concurring) (“Thus, while a
judicial bypass may not be necessary to take care of the cases in
which the minor is mature or parental notice would not be in her
best interests—and, indeed, may not be the preferable mecha-
nism—the Court has held that some provision must be made for
such cases.”), with Akron I, 462 U.S. at 470, n.12 (O’Connor, J.,
dissenting) (“In my view, no decision of this Court has yet
held that parental notification in the case of mature minors
is unconstitutional.”).
Even if not “plain error” based on these earlier decisions, our
holding in Zbaraz I (and Pearson) appears to be in conflict
with Akron II and Lambert, and would merit revisiting if ever
we are squarely presented with this question in the future,
notwithstanding the law of the case. Avitia v. Metro. Club of
Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995) (“A judge may
reexamine his earlier ruling (or the ruling of a judge previously
assigned to the case, or of a previous panel if the doctrine is
invoked at the appellate level) if he has a conviction at once
strong and reasonable that the earlier ruling was wrong, and
if rescinding it would not cause undue harm to the party
that had benefitted from it.”).
20 Nos. 08-1620 & 08-1782
be deemed valid unless “in a large fraction of the cases
in which [the law] is relevant, it will operate as a sub-
stantial obstacle to a woman’s choice to undergo abor-
tion.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833,
895 (1992).6 Because “[l]egislation is measured for consis-
tency with the Constitution by its impact on those whose
conduct it affects,” when analyzing abortion restrictions
“[t]he proper focus of constitutional inquiry is the group
for whom the law is a restriction, not the group for
whom the law is irrelevant.” Id. at 894. See also
A Woman’s Choice-E. Side Women’s Clinic v. Newman,
305 F.3d 684, 706–07 (7th Cir. 2002) (Wood, J., dissent-
ing) (discussing Casey’s “large fraction” test, under
which “ ‘[t]he analysis does not end with the one per-
cent of women upon whom the statute operates; it begins
there’ ”) (quoting Casey, 505 U.S. at 894).
6
Although there is some disagreement over whether Casey’s
“large fraction” test remains vital in light of more recent
Supreme Court precedent affirming United States v. Salerno’s
instruction that plaintiffs can only succeed in a facial challenge
by “establish[ing] that no set of circumstances exists under
which the Act would be valid,” 481 U.S. 739, 745 (1987), see
Washington State Grange v. Washington State Republican Party,
128 S. Ct. 1184, 1190 (2008) (quoting same), we hold that the
Illinois notice act is constitutional under either standard. See
also Richmond Medical Ctr. for Women v. Herring, No. 03-1821,
slip op. at 16–17 (4th Cir. June 24, 2009) (en banc); Cincinnati
Women’s Svcs., Inc. v. Taft, 468 F.3d 361, 367 n.3 (6th Cir. 2006)
(suggesting that the “large fraction” analysis is unnecessary
where a facial challenge hinges entirely on statutory interpreta-
tion).
Nos. 08-1620 & 08-1782 21
Here, the group for whom the law is a restriction
consists of minors who prefer not to notify their parents
of their decision to have an abortion. The law provides
an exception to notice for such minors, if they establish
that they are mature enough to make the decision on
their own or that notice is not in their best interests. The
plaintiffs focus on a subset of minors in the latter
group—minors who are immature and for whom an
abortion without parental notice would be in their best
interests. They argue that the statute lacks language
that would allow a bypass judge to authorize such
minors to consent to an abortion notwithstanding their
immaturity.
We have previously rejected a facial challenge to an
Indiana law requiring a woman to make two visits to an
abortion clinic so that information about the abortion
can be provided to her face-to-face, rather than by tele-
phone or website, before she obtains an abortion.
Newman, 305 F.3d at 685. We upheld the law despite the
district court’s findings that similar laws in Mississippi
and Utah had led to a decline in abortions in those
states. Id. at 693 (“If Indiana’s emergency-bypass pro-
cedure fails to protect Indiana’s women from risks of
physical or mental harm, it will be a failure in operation; it
is not possible to predict failure before the whole statute
goes into force.”). The Indiana law was upheld over
Judge Wood’s dissent, which argued that the majority
disregarded the standards established by Casey, and
“brush[ed] aside” the district court’s findings of fact. Id.
at 704–05 (Wood, J., dissenting).
22 Nos. 08-1620 & 08-1782
Although, like the Indiana statute in Newman, the
Illinois statute here is almost identical to statutes that
have been upheld by the Supreme Court, this case differs
markedly from Newman because the district court here
did not rely on factual findings to distinguish this
statute from others that have been found to be facially
valid. The record on appeal does contain four affidavits of
directors and other employees of Planned Parenthood
offices across Illinois, describing their unsuccessful at-
tempts to get information from various circuit clerk’s
offices about how the notice statute’s bypass procedures
would operate in practice. See Zbaraz v. Madigan, No. 84 C
771, Doc. No. 187-2 (Exs. to Pls.’ Mem. in Opp’n to
Defs.’ Mot. to Dissolve the Permanent Inj.). With these
affidavits, the plaintiffs sought to establish that the
bypass itself erects an undue barrier to a minor woman’s
right to an abortion. But these affidavits do little to estab-
lish that the bypass procedure would not operate as
intended. The process is nascent; clerks understandably
lack familiarity with it.7 Moreover, the record also con-
7
More compelling evidence might have been in the form of,
for instance, affidavits from young women establishing that
they would not have been able to avail themselves of the
bypass procedure without their parents learning of it, such
that the bypass offered a de jure but not a de facto remedy.
We express no view regarding the availability or likely success
of such evidence, but offer it in contrast to the evidence
actually provided only to point out that the evidence in this
case says little if anything about the impact of the notice
statute on actual women.
Nos. 08-1620 & 08-1782 23
tains a letter from the Illinois Supreme Court stating that
“our state courts are prepared to proceed to apply the
law as enacted.” On this record, the district court wisely
declined to question the state’s ability to implement its
own laws and presumed that the state courts would be
able to carry out Rule 303A procedures properly and
adequately. The district court’s holding that the notice
statute is nonetheless unconstitutional on its face was
based not on findings related to how the statute would
operate in practice, but rather on the court’s interpreta-
tion of the statute’s language as a matter of law.
In particular, and dispositively, the district court held
that “[t]he 1995 Act authorizes the court to waive
parental notification when it is in the ‘best interest’ of the
child, but does not authorize a method of consent for the abor-
tion.” Zbaraz, 2008 WL 589028, at *3 (emphasis supplied).
Citing the language from three other notice statutes (those
of Montana, Ohio, and Massachusetts)—all of which
contain provisions instructing that bypass courts “shall
issue an order authorizing the petitioner to consent to
an abortion”—the district court concluded that “[t]he
Illinois statute lacks the language that permits a state
court to authorize the consent for an abortion.” Id. The
district court held that
[t]his court cannot presume that the statute
authorizes something that it does not state. As such,
the minor is left without recourse, except to obtain
consent from her parents, which the court, under
these circumstances, has deemed not in her best
interest. The statute is contradictory and incomplete
24 Nos. 08-1620 & 08-1782
on its face without an authorization of consent provi-
sion, and this court declines to lift the permanent
injunction under these circumstances.8
Id.
The district court’s ruling that the notice act does not
authorize a method of consent for best interest minors
appears to rely on the following chain of argument raised
by the plaintiffs both below and on appeal. In what may
be an excess of ingenuity, the plaintiffs argue that,
without an express authorization of consent provision,
any order issued by a bypass court waiving parental notice
for “best interest” minors will be ineffective to authorize
consent because (1) the court will necessarily consider a
minor’s maturity first and only reach the “best interests”
question if it concludes that a minor is too immature to
make the abortion decision on her own; (2) such a finding
of immaturity will necessarily be included in the bypass
court’s decision waiving parental notice because the notice
act requires the bypass court to “issue written and specific
factual findings and legal conclusions supporting its
decision,” § 25(e); and (3) once a minor has been adjudi-
cated to be immature, she will be unable to consent to
an abortion on her own, because of Illinois’ common law
rule requiring informed consent to all medical procedures:
an immature minor cannot give informed consent. Each
link in this chain of argument misinterprets the language
8
The district court rejected the plaintiffs’ other challenges to
the statute, but because the plaintiffs did not file a cross-
appeal, those rulings are not before us.
Nos. 08-1620 & 08-1782 25
of the statute and ignores its purpose. We therefore
reject the plaintiffs’ interpretation.
First, we find that the initial premise—that the statute
lacks an authorization-of-consent provision—misses the
mark. The language and structure of the notice act do
enable bypass courts to issue orders authorizing consent
to an abortion without notice. Section 25, the portion of the
act that addresses the judicial bypass procedures, provides
that “[n]otice shall be waived” if the court finds that the
minor is either “sufficiently mature and well enough
informed to decide intelligently whether to have an
abortion,” or “that notification . . . would not be in the best
interests of the minor.” § 25(d). Section 25(f), which
addresses appeals, states that “[a]n order authorizing an
abortion without notice shall not be subject to appeal.” This
language plainly contemplates the court’s power to issue
such an order. What type of order? “An order authorizing
an abortion without notice.” § 25(f). This sentence would
be meaningless if the bypass provisions in Section 25(d)
did not provide for an order authorizing an abortion
without notice. Any argument to the contrary distorts the
language and ignores entirely this sentence in Section 25(f),
all to reach for an unconstitutional meaning. This is not
permissible. “ ‘Where fairly possible, courts should con-
strue a statute to avoid a danger of unconstitutionality.’ ”
Akron II, 497 U.S. at 514 (quoting Ashcroft, 462 U.S. at 493).
In any event, an express authorization-of-consent provision
is unnecessary because each of the plaintiffs’ remaining
premises also fails.
Second, the language of the notice act does not require
maturity to be considered before best interests. To be
26 Nos. 08-1620 & 08-1782
sure, there is language in the relevant case law suggesting
that maturity is generally considered first. See Bellotti II,
443 U.S. at 647–48 (“If she fails to satisfy the court that
she is competent to make this decision independently,
she must be permitted to show that an abortion never-
theless would be in her best interests.”); Zbaraz I, 763 F.2d
at 1538 (referring repeatedly to “mature minors and
immature minors whose best interests require an abor-
tion”). But nothing in the statute or the case law requires
this order of decision. The Supreme Court has rejected
the notion that multi-part legal tests must be performed
in a particular order simply because a statute or case
articulates the test in that order. Pearson v. Callahan, 129
S. Ct. 808, 821 (2009). To the contrary, it is well settled
that “[u]nless its jurisdiction is at stake, a court may take
up issues in whatever sequence seems best, given
the nature of the parties’ arguments and the interest in
avoiding unnecessary constitutional decisions.” Aleman v.
Sternes, 320 F.3d 687, 691 (7 th Cir. 2003). There may be
circumstances where it makes more sense for a court
to consider best interests first, or to consider only best
interests, whether based on judicial economy, or the
petitioner’s chosen method of presenting her case, or some
other reason. The act does not foreclose this flexibility.
Third, and relatedly, the statutory language does not
require bypass courts to make findings on grounds both
of maturity and of best interests. Section 25(d) requires
that notice shall be waived if the minor establishes either
that she is mature or that an abortion without notice is
in her best interests. Section 25(c) requires the court to
“issue written findings of fact and conclusions of law . . . ,”
and Section 25(e) requires that the court “shall issue
Nos. 08-1620 & 08-1782 27
written and specific factual findings and legal con-
clusions supporting its decision . . .” Nowhere does the
act provide more specificity regarding what the court
must include in its findings. A bypass court, then, is free
to base its decision on findings directed solely to the
minor’s best interests. This conclusion serves judicial
economy because it may streamline the proceedings
by narrowing the issues. Moreover, even immature
minors have a right to an abortion without parental
consent when such an abortion is in their best interest.
If a bypass court were to make findings regarding a “best
interests” minor’s immaturity, those findings would not
deprive the court of power to authorize consent to an
abortion—indeed, the court in such a circumstance
would be compelled to authorize the minor’s consent to
an abortion. Finally, the Supreme Court has upheld the
Ohio notice statute’s bypass procedure (which contains
a substantively indistinguishable “either/or” provision
for establishing maturity or best interests), under which
the Ohio courts have promulgated three separate
pleading forms: one for petitioners seeking to prove
“maturity,” one for “best interests,” and one for petitioners
arguing both maturity and best interests. Akron II, 497
U.S. at 516. The Supreme Court upheld the use of these
forms, which clearly contemplate bypass proceedings that
are addressed only to best interests. If a petitioner chooses
to establish only that an abortion without notification is
in her best interests, a bypass court in Illinois, as in Ohio,
will be free to make findings with respect to her best
interests only. In fact, such a court likely will be unable
to make findings with respect to maturity because a
minor choosing to establish only “best interests” may
28 Nos. 08-1620 & 08-1782
decide not to present any evidence regarding her maturity.
In any event, the bypass court is not required to make
findings on maturity where the minor focuses the
hearing on the “best interests” prong and chooses not to
present evidence on other issues.
Fourth, even setting aside all of the above and assuming
the truth of the assertion in the third link in the plaintiffs’
chain of reasoning—that an immature minor cannot give
informed consent to her own abortion 9 —the argument
9
Our decision does not depend on this state-law question, and
therefore we need not decide it. However, we note that as a
general proposition, Illinois law allows pregnant minors to
consent to their own medical procedures, including abortion,
to the same extent as a “person of legal age.” 410 ILCS 210/1
(Consent by Minors to Medical Procedures Act). The defendants
argue that the Consent by Minors Act serves as the backdrop
against which the notice act must be read. The notice statute
does not need an authorization-of-consent provision, the
argument goes, because the Consent by Minors Act already
authorizes minors to consent to their abortions, abrogating the
common law rule that minors must establish their maturity in
court before consenting to such procedures. In most cases, then,
court-ordered consent may be unnecessary. The defendants
further point out that the three statutes the district court relied
on for its holding that an authorization-of-consent provision
is necessary were written against different state-law backdrops.
Montana and Ohio lack statutes such as the Consent by
Minors Act, so their state legislatures may have felt that, in
drafting the bypass provisions of their notice statutes, they
had to overcome the common law “mature minor” rule by
explicitly enabling the bypass court to authorize a minor to
consent to her abortion. The Massachusetts law cited by the
(continued...)
Nos. 08-1620 & 08-1782 29
still fails. The minor will not need to consent on her
own. Even without statutory authorization, the court
may issue an order authorizing consent. The district court
held to the contrary that the statute’s bypass provision
forecloses this option and that bypass judges would be
hamstrung in their attempts to authorize consent for
immature minors when an abortion without parental
notice is in the minors’ best interests. But this is unrea-
sonable. Courts do not need explicit legislative authoriza-
tion to issue orders in aid of their judgments. That author-
ity inheres in the judicial power. Virginia v. West Virginia,
246 U.S. 565, 591 (1918) (“That judicial power essentially
involves the right to enforce the results of its exertion
is elementary.”); Fid. Nat’l Title Ins. Co. v. Intercounty
Nat’l Title Ins. Co., 412 F.3d 745, 752 (7th Cir. 2005) (“[A]
judge’s power includes not only what he is expressly
empowered to do but also such ancillary powers as are
(...continued)
district court was a consent law that stripped minors of the
ability to consent, so its bypass provision needed to authorize
consent on their behalf.
The plaintiffs respond that the Illinois Consent by Minors Act
simply puts minors on the same footing as adults by eliminating
minority as a per se bar to consent, and that minors still must
provide “informed consent” to an abortion, just as any adult
woman must do. Again, we do not address the state-law
question of what it means to give “informed consent” or
whether an “immature” minor will be unable to do so. The
bypass court may authorize her consent in any event. But in
general, it appears that such court-ordered consent may be
unnecessary for most minors affected by the act.
30 Nos. 08-1620 & 08-1782
necessary and proper to his exercise of the explicitly
conferred ones.”); Leathe v. Thomas, 97 F. 136, 139 (7th Cir.
1899) (“[The] rule is universal that, if the power is con-
ferred to render the judgment or enter the decree, it also
includes the power to issue proper process to enforce
such judgment or decree.”). This basic principle of
common law is well established in Illinois jurisprudence
and does not depend on express statutory authorization.
See Sandburg v. Papineau, 81 Ill. 446, 448-49 (1876) (“There
is no principle of law better recognized than that which
gives to courts of record power over the process of their
courts. It is essential to the administration of justice, and
it by no means depends upon statutory enactment.”); Ill.
Health Maint. Org. Guar. Ass’n v. Shapo, 357 Ill. App. 3d
122, 141, 826 N.E.2d 1135, 1151 (Ill. App. Ct. 2005) (“[T]he
trial court ‘has the inherent authority to enforce its judg-
ments.’ ”) (quoting In re Marriage of Ward, 267 Ill. App. 3d
35, 44, 641 N.E.2d 879, 885 (Ill. App. Ct. 1994)). See also
Vill. of Gilberts v. Holiday Park Corp., 150 Ill. App. 3d 932,
936–37, 502 N.E.2d 378, 380 (Ill. App. Ct. 1986); Adam
Martin Constr. Co. v. Brandon P’ship, 135 Ill. App. 3d 324,
326, 481 N.E.2d 962, 964 (Ill. App. Ct. 1985).
Applicable to this case, if a state bypass court deter-
mines that a minor has established one of the exceptions
to the act’s notice requirements, i.e., that she is either
mature or that an abortion without notice is in her best
interests, the act requires the court to waive parental notice,
see 750 ILCS 70/25(d) (providing that “[n]otice shall be
waived” if the minor establishes either of the two excep-
tions to notice by a preponderance of the evidence), so
that the minor may obtain an abortion without telling
her parents. That the act lacks a provision expressly
Nos. 08-1620 & 08-1782 31
instructing the court to issue an order giving effect to its
decision does not impair its plain power of enforcement.
What would be the point of providing for a waiver of
notice if there were no way to enforce it? The act
clearly contemplates the court’s ability to follow through
on this score, which is well supported by the common
law governing courts’ inherent authority.
An order conferring consent may be practically
necessary for the court to carry out its determination that
notice shall be waived. For example, the physician to
whom the notice act is directed, see 750 ILCS 70/15 (“No
person shall knowingly perform an abortion upon a
minor . . . unless the physician or his or her agent has
given at least 48 hours actual notice to an adult
family member . . .”), may not know whether the court
has waived the notice requirement unless the minor
presents an order from the court. And, in response to the
plaintiffs’ own concerns, such physicians may be legiti-
mately worried about the legality of performing an abor-
tion without notice on a minor who appears to be imma-
ture or uninformed. To enforce a judgment that an abortion
without notice is in such a minor’s best interests, then, a
state bypass judge will likely need to issue an order
authorizing the minor’s consent. Any argument that
bypass courts will not issue such orders assumes that
such courts will act in a way that is unconstitutional. It
assumes that bypass judges will find that it is in a
minor’s best interests to have an abortion without
notice but then not issue an order authorizing such an
abortion, potentially leaving such minors with an uncon-
stitutional choice: forgo the abortion or obtain the
consent of a parent. And even though we do not revisit
32 Nos. 08-1620 & 08-1782
today whether minors have a constitutional right to a
judicial bypass alternative to notifying their parents, it is
beyond dispute that mature minors and immature “best
interest” minors have a right to bypass parental consent.
Bellotti II, 443 U.S. at 647–48.1 0 The plaintiffs’ argument
depends on the speculative assertion that bypass courts
will ignore Supreme Court precedent and deny “best
interest” minors this right. Again, we will not assume
that state courts will act in this way on a facial challenge
to the act. Akron II, 497 U.S. at 542 (Stevens, J., concurring).
Fifth and finally, the district court’s interpretation of
the statute ignores its purpose, which is to require notice
to parents, unless a bypass court waives notification
because the minor is mature or notification is not in
her best interests. §§ 15, 25(d). The plaintiffs’ interpretation
of the bypass provisions would disallow “best interest”
abortions. This squarely contradicts the purpose of the
second half the judicial bypass provision, which is to
allow abortions without notification whenever doing so
would be in the minor’s best interests. Just as we will
not reach for an unconstitutional interpretation of
statutory language, neither will we construe a statute
in a way that leads to absurd results. “It is an
elementary rule of construction that ‘the act cannot be
10
Indeed, Bellotti II was explicit on this point. 443 U.S. at 647–48
(“If she fails to satisfy the court that she is competent to
make this decision independently, she must be permitted to
show that an abortion nevertheless would be in her best
interests. If the court is persuaded that it is, the court must
authorize the abortion.”).
Nos. 08-1620 & 08-1782 33
held to destroy itself.’ ” Citizens Bank of Maryland v.
Strumpf, 516 U.S. 16, 20 (1995) (citation omitted). See
Treadway v. Gateway Chevrolet Oldsmobile Inc., 362 F.3d
971, 976 (7th Cir. 2004) (“ ‘Nonsensical interpretations
of contracts, as of statutes, are disfavored . . . [n]ot because
of a judicial aversion to nonsense as such, but because
people are unlikely to make contracts, or legislators
statutes, that they believe will have absurd conse-
quences.’ ”) (quoting FutureSource L.L.C. v. Reuters Ltd., 312
F.3d 281, 284–85 (7th Cir. 2002)). An interpretation that
flies in the face of a statute’s purpose, like that advanced by
the plaintiffs here, leads to an absurd result. The plaintiffs
may seek to draw a distinction between an order “waiving
notice” and an order “authorizing consent to an abortion
without notice.” We find that such a distinction is not
compelled by the statute’s language and, in fact, nonsensi-
cal in the context of the act’s bypass provisions. Again, the
sole purpose of the bypass provisions is to allow the
minor to obtain an abortion without notice; thus, the
same court order that “waives notice” also should “autho-
rize consent to an abortion without notice.”
III
Before concluding, we emphasize again how narrow is
the argument the plaintiffs raise here. Many, if not all, of
the concerns first raised against parental involvement
laws in the 1970s and early 1980s have been addressed in
later versions of such laws and in this law in particular.
Whereas the early parental consent laws were struck
down because they lacked a bypass procedure and there-
34 Nos. 08-1620 & 08-1782
fore gave parents an absolute, and possibly arbitrary, veto
power over the child’s abortion decision, e.g., Danforth,
supra, later laws have heeded Bellotti II’s instruction to
provide such a bypass and to guarantee that it include
expeditious and confidential appeals, e.g., Ashcroft, supra.
Notice laws, too, tend to include judicial bypass proce-
dures, showing that state legislatures in enacting such
laws have gone beyond what appears to be strictly neces-
sary under the Supreme Court’s current jurisprudence.
See Akron II, supra. Thus, by encouraging parental in-
volvement, without requiring it where the minor is
mature or such involvement will do more harm than
good, laws such as the notice statute before us are, at
least facially, closely tailored to serve the state’s
important interest in making sure minor women make
informed decisions about whether to have an abortion.
Cf. Matheson, 450 U.S. at 441–42, 446–47 (Marshall, J.,
dissenting).
We acknowledge that there may be practical problems
with the procedure at issue here—it may be intimidating
for a minor to navigate the process of presenting her
case to a judge, for instance. See Hodgson v. Minnesota,
497 U.S. 417, 479 (1990) (Marshall, J., dissenting); Ashcroft,
462 U.S. at 504 (Blackmun, J., dissenting); Bellotti II, 443
U.S. at 655–56 (Stevens, J., concurring). But we fail to see
a better alternative. Abortion, no matter how it is con-
fronted, may present intimidating choices to the minor
woman who faces it. There is perhaps no way around
that fact, even without state regulation impinging on
the choice. What is more, notice statutes substantively
identical to that enacted by the Illinois General Assembly
Nos. 08-1620 & 08-1782 35
have been upheld as facially valid on the basis of the
State’s important interest in the welfare of its minors. E.g.,
Matheson, 450 U.S. at 421 (Stevens, J., concurring) (describ-
ing this interest as “fundamental and substantial”).1 1
Nothing we say here treads new ground in that regard, as
these difficult issues have been, and will continue to be,
debated at length elsewhere. We need not add much more
to the debate, and we express no view as to whether the
Illinois notice act would withstand an as-applied challenge
by individual women who have attempted to participate in
bypass proceedings and found them wanting. It suffices
to hold that the statute as written is a permissible
attempt to help a young woman make an informed
choice about whether to have an abortion, and therefore
that the order of the district court is R EVERSED and the
permanent injunction barring enforcement of the act is
dissolved.
11
The State also has a well-established interest in protecting
the parent’s right to make decisions about the upbringing of
her children. That interest justifies state-imposed requirements
that a minor obtain a parent’s consent before undergoing an
operation, marrying or entering military service, and it extends
to the minor’s decision to terminate her pregnancy. Hodgson,
497 U.S. at 444–45 (Stevens, J., concurring) (citations omitted).
36 Nos. 08-1620 & 08-1782
APPENDIX
Selected Sections of the Parental Notification of
Abortion Act of 1995, 750 ILCS 70/1 et seq.
§ 5. Legislative findings and purpose. The General Assem-
bly finds that notification of a family member as defined in
this Act is in the best interest of an unemancipated minor,
and the General Assembly’s purpose in enacting this
parental notice law is to further and protect the best
interests of an unemancipated minor.
The medical, emotional, and psychological consequences
of abortion are sometimes serious and long-lasting, and
immature minors often lack the ability to make fully
informed choices that consider both the immediate and
long-range consequences.
Parental consultation is usually in the best interest of the
minor and is desirable since the capacity to become
pregnant and the capacity for mature judgment con-
cerning the wisdom of an abortion are not necessarily
related.
§ 15. Notice to adult family member.1 No person shall
knowingly perform an abortion upon a minor or upon an
incompetent person unless the physician or his or her
agent has given at least 48 hours actual notice to an adult
family member of the pregnant minor or incompetent
1
The notice act defines “adult family member” to mean “a
person over 21 years of age who is the parent, grandparent, step-
parent living in the household, or legal guardian” of the
minor or pregnant incompetent. 750 ILCS 70/10.
Nos. 08-1620 & 08-1782 37
person of his or her intention to perform the abortion,
unless that person or his or her agent has received a
written statement by a referring physician certifying that
the referring physician or his or her agent has given at
least 48 hours notice to an adult family member of the
pregnant minor or incompetent person. If actual notice
is not possible after a reasonable effort, the physician or
his or her agent must give 48 hours constructive notice.
§ 20. Exceptions. Notice shall not be required under this
Act if:
(1) the minor or incompetent person is accompanied
by a person entitled to notice; or
(2) notice is waived in writing by a person who is
entitled to notice; or
(3) the attending physician certifies in the patient’s
medical record that a medical emergency exists
and there is insufficient time to provide the required
notice; or
(4) the minor declares in writing that she is a victim
of sexual abuse, neglect, or physical abuse by an
adult family member as defined in this Act. The
attending physician must certify in the patient’s
medical record that he or she has received the
written declaration of abuse or neglect. Any notifica-
tion of public authorities of abuse that may be
required under other laws of this State need not be
made by the person performing the abortion until
after the minor receives an abortion that otherwise
complies with the requirements of this Act; or
(5) notice is waived under Section 25.
38 Nos. 08-1620 & 08-1782
§ 25. Procedure for judicial waiver of notice.
(a) The requirements and procedures under this Section
are available to minors and incompetent persons whether
or not they are residents of this State.
(b) The minor or incompetent person may petition any
circuit court for a waiver of the notice requirement
and may participate in proceedings on her own behalf. The
court shall appoint a guardian ad litem for her. Any
guardian ad litem appointed under this Act shall act to
maintain the confidentiality of the proceedings. The
circuit court shall advise her that she has a right
to court-appointed counsel and shall provide her
with counsel upon her request.
(c) Court proceedings under this Section shall be confiden-
tial and shall ensure the anonymity of the minor or incom-
petent person. All court proceedings under this Section
shall be sealed. The minor or incompetent person shall
have the right to file her petition in the circuit court
using a pseudonym or using solely her initials. All docu-
ments related to this petition shall be confidential and
shall not be made available to the public.
These proceedings shall be given precedence over other
pending matters to the extent necessary to ensure that the
court reaches a decision promptly. The court shall rule and
issue written findings of fact and conclusions of law within
48 hours of the time that the petition is filed, except that
the 48-hour limitation may be extended at the request of
the minor or incompetent person. If the court fails to rule
within the 48-hour period and an extension is not re-
quested, then the petition shall be deemed to have been
granted, and the notice requirement shall be waived.
Nos. 08-1620 & 08-1782 39
(d) Notice shall be waived if the court finds by a prepon-
derance of the evidence either:
(1) that the minor or incompetent person is
sufficiently mature and well enough informed to
decide intelligently whether to have an abortion, or
(2) that notification under Section 15 of this Act
would not be in the best interests of the minor
or incompetent person.
(e) A court that conducts proceedings under this Section
shall issue written and specific factual findings and legal
conclusions supporting its decision and shall order that a
confidential record of the evidence and the judge’s
findings and conditions be maintained.
(f) An expedited confidential appeal shall be available, as
the Supreme Court provides by rule, to any minor or
incompetent person to whom the circuit court denies a
waiver of notice. An order authorizing an abortion
without notice shall not be subject to appeal.
(g) The Supreme Court is respectfully requested to promul-
gate any rules and regulations necessary to ensure that
proceedings under this Act are handled in an expeditious
and confidential manner.
(h) No fees shall be required of any minor or incompetent
person who avails herself of the procedures provided by
this Section.
The Act also amends Sections 22 and 23 of the Illinois Medical
Practice Act, 225 ILCS 60/22 and 60/23, to impose penalties
upon physicians who do not comply with the Act when perform-
ing abortions on minors or incompetent women.
40 Nos. 08-1620 & 08-1782
225 ILCS 60/23(A)(4), as amended by Section 85 of the
Parental Notice of Abortion Act of 1995. The State’s
Attorney of each county shall report to the Disciplinary
Board all instances in which a person licensed under
this Act is convicted or otherwise found guilty of the
commission of any felony. The State’s Attorney of each
county may report to the Disciplinary Board through a
verified complaint any instance in which the State’s
Attorney believes that a physician has willfully violated
the notice requirements of the Parental Notice of Abortion
Act of 1995.
225 ILCS 60/22(A). The Department may revoke, suspend,
place on probationary status, refuse to renew, or take any
other disciplinary action as the Department may deem
proper with regard to the license or visiting professor
permit of any person issued under this Act to practice
medicine, or to treat human ailments without the use of
drugs and without operative surgery upon any of the
following grounds:
(40) Willful failure to provide notice when notice is
required under the Parental Notice of Abortion Act
of 1995.
225 ILCS 60/22(C). The Medical Disciplinary Board shall
recommend to the Department civil penalties and any
other appropriate discipline in disciplinary cases when
the Board finds that a physician willfully performed an
abortion with actual knowledge that the person upon
whom the abortion has been performed is a minor or an
incompetent person without notice as required under
the Parental Notice of Abortion Act of 1995. Upon the
Nos. 08-1620 & 08-1782 41
Board’s recommendation, the Department shall impose,
for the first violation, a civil penalty of $1,000 and for a
second or subsequent violation, a civil penalty of $5,000.
Illinois Supreme Court Rule 303A. Expedited and Confi-
dential Proceedings Under the Parental Notification of
Abortion Act
(a) Entry of Judgment in the Circuit Court. Upon the
filing of a petition in the circuit court for judicial waiver
of notice under the Parental Notification of Abortion
Act, the circuit court shall rule and issue written findings
of fact and conclusions of law within 48 hours of the time
that the petition is filed with weekends and holidays
excluded, except that the 48-hour limitation may be
extended at the request of the minor or incompetent
person. The court shall endeavor to rule at the conclusion
of any hearing on the petition, but in any event shall
rule within 48 hours of the filing of the petition, weekends
and holidays excluded, except that the time period for
ruling may be extended at the request of the minor or
the incompetent person. If the decision is not rendered
immediately following a hearing, then the petitioner
shall be responsible for contacting the clerk of the court
for notification of the decision. All notifications pursuant
to this procedure may be informal and shall be confiden-
tial. If the court fails to rule within the 48-hour period
and an extension is not requested, then the petition shall
be deemed to have been granted and the notice require-
ment shall be waived. A decision denying a judicial
waiver of notice is a final and appealable order, which is
42 Nos. 08-1620 & 08-1782
appealable in the manner provided in the following
paragraphs of this rule.
(b) Review to the Appellate Court as a Matter of Right.
In accordance with the provisions of this rule, a minor or
incompetent person shall be entitled to an appeal to the
Appellate Court as a matter of right when the circuit
court denies her a waiver of notice under the Parental
Notification of Abortion Act.
(c) Review in the Appellate Court. Review of the denial
of a waiver of notice under the Parental Notice of Abortion
Act shall be by petition filed in the Appellate Court. The
petition shall be in writing, state the relief requested and
the grounds for the relief requested, and filed within two
days, weekends and holidays excluded, of entry of the
denial from which review is being sought, except that the
two-day period may be extended at the request of the
minor or incompetent person. An appropriate supporting
record shall accompany the petition, including a record
of proceedings, a copy of the petition filed in the circuit
court, the decision of the circuit court, including the
specific findings of fact and legal conclusions supporting
the decision, and any other supporting documents or
matters of record necessary to the petition. The supporting
record must be authenticated by the certificate of the
circuit court clerk or by the affidavit of the attorney or
party filing it.
(d) Appointment of Counsel. The Appellate Court
shall appoint counsel to assist the petitioner if she so
requests.
(e) Statement of Facts and Memoranda of Law. The
minor or incompetent petitioner may file a brief state-
Nos. 08-1620 & 08-1782 43
ment of facts and memorandum of law supporting her
petition, which together shall not exceed 15 typewritten
pages and which also must be filed within two days,
excluding weekends and holidays, of the entry of the
order being appealed under paragraph (a) of this Rule.
(f) Confidentiality. All proceedings under this rule
shall be confidential. The petitioner shall be identified in
the petition and any supporting memorandum in the
method provided under Rule 660(c), as in appeals in
cases arising under the Juvenile Court Act. Alternatively,
the petitioner may use a pseudonym if she so requests.
All documents relating to proceedings shall be im-
pounded and sealed subject to review only by the minor,
her attorney and guardian ad litem, the respective judges
and their staffs charged with reviewing the case and the
respective court clerks and their staffs. After entry of an
order by the Appellate Court, the clerk of the Appellate
Court shall review the proceedings. If leave to appeal is not
sought by the petitioner, the clerk of the Appellate Court
shall seal the record on appeal before returning it to the
clerk of the circuit court. Any appellate court file shall
also be sealed. If leave to appeal to the Supreme Court is
sought, the petition for leave to appeal and all supporting
documents shall identify the petitioner in manner pro-
vided under Rule 660(c). The file in the Supreme Court
shall also be sealed and impounded following the
decision of the Supreme Court. All notifications of court
rulings under this rule may be informal and shall be
confidential.
(g) Time for Decision; No Oral Argument. After the
petitioner has filed the petition for review in the Appellate
44 Nos. 08-1620 & 08-1782
Court, along with a supporting record and any memoran-
dum, the Appellate Court shall consider, decide the
petition and issue a confidential written order within
three days, excluding weekends and holidays. The peti-
tioner shall be responsible for contacting the clerk of the
Appellate Court for notification of the decision. Oral
argument on the petition will not be heard.
(h) Supreme Court Review. If the Appellate Court affirms
the denial of a waiver of notice, the petitioner may file a
petition for leave to appeal with the Supreme Court
within two days, excluding weekends and holidays, of
the Appellate Court’s decision to affirm the denial of a
waiver of notice, except that the two-day period may be
extended at the request of the minor or incompetent
person. The petition for leave to appeal to the Supreme
Court shall contain (1) a statement of issues presented
for review and how those issues were decided by the
circuit and appellate courts, (2) a brief statement explaining
the reason for appeal to the Supreme Court, (3) any
memorandum and statement of facts presented to the
appellate court, and (4) the written orders of the circuit
and appellate courts. The Supreme Court shall decide
whether to allow leave to appeal within three days,
excluding weekends and holidays, of the filing of the
leave to appeal. In deciding whether to allow leave to
appeal, the Supreme Court’s discretion shall be guided
by the criteria listed in Rule 315(a). The confidentiality of
the proceedings shall be maintained in the manner de-
scribed in paragraph (f) of this rule. If leave to appeal is
allowed, the petitioner must then file the record from
the proceedings in the circuit court with the clerk the
Nos. 08-1620 & 08-1782 45
Supreme Court within two days, excluding weekends
and holidays, of the date that leave to appeal is allowed,
except that the two day period may be extended at the
request of the minor or incompetent person. Oral argu-
ment in the case will not be heard. The Supreme Court
shall then issue a confidential written decision within
five days, excluding weekends and holidays, of the date
it allowed the petition for leave to appeal. The Supreme
Court shall render its decision based on the record from
the circuit court, and the petition for leave to appeal and
any supporting documentation filed in conjunction with
the petition for leave to appeal. The petitioner shall be
responsible for contacting the clerk of the Supreme Court
for notification of any decisions made by the Supreme
Court on either the petition for leave to appeal or the
ultimate disposition of the case by the Supreme Court. All
notifications of court rulings under this rule may be
informal and shall be confidential.
Adopted September 20, 2006, effective immediately.
7-14-09