Susan Russ Walker, United States Magistrate Judge.
This matter is before the court on the parties' cross motions for judgment on the pleadings.
On September 2, 2016, the court determined that a justiciable controversy exists in this case with respect to plaintiffs' challenges to the State of Alabama's parental consent and judicial bypass statutes ("the Act"), which were substantially amended in 2014. See Reproductive Health Services v. Strange, 204 F.Supp.3d 1300 (M.D. Ala. 2016) ("RHS I");
The parties all argue that a declaratory judgment is due to be entered as to all of plaintiffs' claims. Specifically, the plaintiffs and defendants each seek a declaratory judgment as to the constitutionality of the following provisions of the Act in light of the Supreme Court's plurality opinion in
Under Bellotti II, plaintiffs claim that the State of Alabama has created an unconstitutional judicial bypass option for minors who seek an abortion without the consent of a parent or legal guardian. Specifically, the plaintiffs contend that the addition of a district attorney ("DA"), a guardian ad litem on behalf of the fetus ("GAL"), and — under some circumstances — the minor petitioner's parent, parents or legal guardian as parties to the bypass proceeding causes that proceeding no longer to afford the minor the constitutionally guaranteed option of an anonymous and expeditious bypass. Also, plaintiffs argue that certain provisions of the Act allowing subpoenas to issue for the presence of witnesses violate a minor petitioner's right to anonymity, and that the Act permits discretionary delays in the resolution of the petition such that the bypass process lacks the requisite expedition to satisfy the Supreme Court's mandates in Bellotti II. In addition, the plaintiffs maintain that the Act "unconstitutionally transforms the bypass from an ex parte hearing into an adversarial" proceeding. (Doc. 61 at 11). For their part, defendants zealously defend the constitutionality of the Act.
The court finds that neither plaintiffs nor defendants are precisely correct in their interpretations of the Act; however, based upon nearly four decades of binding Supreme Court precedent, certain provisions of the Act undoubtedly fail on a facial challenge to their constitutionality. See n. 3, supra. As explained more fully below, the offending portions of the Act are severable, and a declaration of their unconstitutionality will still leave Alabama with a constitutional bypass option, something that the Alabama Legislature clearly intended to achieve when it amended the Act in 2014. See Ala. Code §§ 26-21-1, 26-21-4.
The Federal Rules of Civil Procedure provide that, "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A judgment on the pleadings is limited to consideration of "the substance of the pleadings and any judicially noticed facts." Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998).
In evaluating a motion for judgment on the pleadings, the court must review the factual allegations in the light most favorable to the nonmoving party.
A judgment on the pleadings pursuant to Rule 12(c) is appropriate when "no issues of material fact exist, and the movant is entitled to judgment as a matter of law[,]" Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996), or when "the complaint lacks sufficient factual matter to state a facially plausible claim for relief that allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct." Jiles v. United Parcel Serv., Inc., 413 Fed.Appx. 173, 174 (11th Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Alabama law mandates that "no physician shall perform an abortion upon an unemancipated minor unless the physician or his or her agents first obtain the written consent of either parent or the legal guardian of the minor." Ala. Code § 26-21-3(a). There are limited exceptions to the parental consent requirement, one of which is the judicial bypass exception. See id.; Ala. Code § 26-21-4. As a matter of law, states that have parental consent statutes must also enact a law that allows a minor to obtain a court order to bypass her parent's or guardian's consent. See Bellotti II, 443 U.S. at 649, 99 S.Ct. 3035. In RHS I, the court summarized the pertinent provisions of Alabama's judicial bypass law as follows.
RHS I, 204 F.Supp.3d at 1307-08.
The legal framework that applies to the substance of plaintiffs' Bellotti II claim begins with the well-established right of a minor to obtain an abortion of a non-viable fetus. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti II, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797.
Planned Parenthood Southeast v. Bentley, 951 F.Supp.2d 1280, 1285 (M.D. Ala. 2013) (footnote omitted). "The rule announced in Casey ... requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer." Whole Woman's Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292, 2309, 195 L.Ed.2d 665 (2016), as revised (June 27, 2016).
The application of the Bellotti II criteria to the Act is a matter of "purely ... statutory construction," Ashcroft, 462 U.S. at 491, and the court must "measur[e] [the Act's] challenged provisions against [the] [Bellotti II] requirements." RHS I, 204 F.Supp.3d at 1326 & n.19 (citing Bellotti II, 443 U.S. at 623-51; Planned Parenthood Ass'n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462, 1475-82 (11th Cir. 1991)).
Id. at 1333.
In considering a facial challenge to the Act, the court will assume, as it must, that bypass courts in Alabama will comply with the Act's provisions. See Miller, 934 F.2d at 1479 (the district court erred by failing to accept, absent evidence to the contrary, that bypass courts would "observe" the mandates of Georgia's judicial bypass law, including the confidentiality requirements).
The judicial bypass requirements espoused in Bellotti II are "strict standards." Id. at 1475. "Under Bellotti, a pregnant minor is entitled to show the court either: `(1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.'" Id. (quoting Bellotti II, 443 U.S. at 643-44, 99 S.Ct. 3035 (footnote omitted)). Once the minor makes either showing, the bypass petition must be granted. Id. The Bellotti II requirements, as summarized by the Supreme Court, consist of four factors that a judicial bypass law must satisfy to pass constitutional muster: (1) the bypass procedure must afford the minor an opportunity to demonstrate that she is sufficiently mature to make an informed decision to have an abortion "without regard to her parents' wishes"; (2) the abortion procedure must be authorized if the court finds that, despite a minor's inability to reach an abortion decision "by herself[,]" "the abortion is in the minor's best interests and in cases where the minor has shown a pattern of physical, sexual, or emotional abuse"; (3) the bypass procedure "must insure the minor's anonymity";
The Bellotti II requirements must be considered in the context of the facial challenge brought by the plaintiffs. For the reasons explained in RHS I, "an abortion law is facially unconstitutional if it places an `undue burden' in the path of a `large fraction' of the women the law affects."
"Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects." Id. at 894, 112 S.Ct. 2791. "The 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. For example, in Casey, the law at issue affected fewer than one percent of women seeking abortions. Id. However, the Court's principal opinion found that the facial challenge "analysis does not end with the one percent of women upon whom the statute operates; it begins there." Id. Identifying the universe of affected individuals is the proper way to begin a facial challenge analysis.
Moreover, "Casey teaches that the court need not find that a law imposes an undue burden on a precise percentage of impacted women in order [to] find that facial relief is warranted facial invalidation." Planned Parenthood Southeast, Inc. v. Strange, 172 F.Supp.3d 1275, 1288 (M.D. Ala. 2016), judgment entered, 2016 WL 1178658 (M.D. Ala. 2016) ("Strange II"). The plurality decision in Casey found that the challenged Pennsylvania statute "would affect a significant number of women, without quantifying further." Id. (citing Casey, 505 U.S. at 888-94, 112 S.Ct. 2791) (emphasis in original). Therefore, to determine the Act's constitutionality on a facial challenge in terms of the "undue burden" analysis under Casey, "the court must define the group of [minors] for whom the challenged law[s] [are] relevant and then assess whether the law[s] will create a substantial obstacle to obtaining an abortion for a significant number of the [minors] in that group." Strange II, 172 F.Supp.3d at 1288. The Supreme Court recently reaffirmed that
Hellerstedt, 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 894-95, 112 S.Ct. 2791) (alterations in original). To succeed on a facial challenge to the Act by way of a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings, the plaintiffs must identify material allegations from the complaint "to support a logical deduction that a significant number of women would face an undue burden" because of the Act. Strange II, 172
Accordingly, the relevant group of affected minors for each challenged provision of the Act is necessarily dependent upon the challenged provision's language, as the court must consider the statute in light of those minors for whom the various challenged provisions are "actual rather than irrelevant." Hellerstedt, 136 S.Ct. at 2320 (quoting Casey, 505 U.S. at 894-95, 112 S.Ct. 2791). In other words, to render a challenged provision "relevant," the court defines the affected group as those minors who are subject to the provision's triggering event. For example, where the Act grants a judge discretion pursuant to Alabama Code § 26-21-4(j) to take an action allowed by the statute — i.e., appointing a GAL to represent the interests of the unborn child in the bypass proceedings — the affected group with respect to this section is all minor petitioners in whose bypass proceedings the court appoints a GAL for the fetus.
The court is mindful that, in applying Casey's undue burden test, it must "consider the burdens a law imposes on abortion access together with the benefits those laws confer," as noted above. Hellerstedt, 136 S.Ct. at 2309. Because this case is before the court on a facial constitutional challenge and on the parties' motions for judgment on the pleadings, the court must glean the benefits of the Act from the Legislature's findings regarding the State interests that the Act seeks to advance.
The court is also mindful, in considering the State interests articulated by the Legislature, that even if those interests are legitimate, the means chosen to further such interests are not constitutionally permissible if they place a substantial obstacle in the path of a woman's choice. Casey, 505 U.S. at 877, 112 S.Ct. 2791 ("A finding of an undue burden is a shorthand for the conclusion that a state regulation has the
Thus, while the State's legitimate interests and the Act's benefits are considered by the court below, these are not alone dispositive — a statute that restricts abortion access and that is justified by a legitimate State interest will fail constitutional scrutiny if it poses a "substantial obstacle" to a minor's liberty interest in reaching an abortion decision through a judicial bypass. Casey, 505 U.S. at 877, 112 S.Ct. 2791. "Only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause." Id. at 874, 112 S.Ct. 2791 (citations omitted).
With the foregoing in mind, the court turns to the merits of the motions for judgment on the pleadings as to plaintiffs' Bellotti II claims.
The Act provides a mechanism for a minor petitioner's parent, parents or legal guardian to participate as parties to the bypass proceeding.
Ala. Code § 26-21-4(l).
The controlling opinion in Bellotti II is clear that "every pregnant minor is entitled in the first instance to go directly to the court for a judicial determination without prior parental notice, consultation, or consent[.]" Bellotti II, 443 U.S. at 649, 99 S.Ct. 3035. As the Court noted, "`there are parents who would obstruct, and perhaps altogether prevent, the minor's right to go to court.'... There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of
Those bounds are clearly drawn. If a minor "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 without parental consultation or consent." Id. If the minor "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." Id. at 647-8, 99 S.Ct. 3035. "If, all things considered, the court determines that an abortion is in the minor's best interests, she is entitled to court authorization without any parental involvement." Id. at 648, 99 S.Ct. 3035. Only if the court concludes that an immature minor's best interests would be served by denial of the abortion request may the court choose to defer decision until there is parental consultation, in which the court may participate. Id. As the Bellotti II Court was at pains to emphasize, "this is the full extent to which parental involvement may be required." Bellotti II, 443 U.S. at 648, 99 S.Ct. 3035; see also Akron II, 497 U.S at 511, 110 S.Ct. 2972 (a minor petitioner is entitled to show that she is sufficiently mature and informed to make an abortion decision "without regard to her parents' wishes"); Zbaraz v. Hartigan, 763 F.2d 1532, 1536 (7th Cir. 1985), aff'd, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987) ("[A] mature minor or an immature minor in whose best interest it is to have an abortion has a constitutional right to have an abortion without notifying her parents.") (citing Matheson, 450 U.S. at 420, 101 S.Ct. 1164 (Powell, J., concurring); Bellotti II, 443 U.S. at 647, 99 S.Ct. 3035).
Accordingly, "every minor must have the opportunity — if she so desires — to go directly to a court without first consulting or notifying her parents." Bellotti II, 443
By providing a statutory mechanism for some parents or legal guardians to participate as parties to the bypass proceeding — and also to appeal any decision by the bypass court, see Ala. Code § 26-21-4(n) — the Act eviscerates the judicial bypass mandate of Bellotti II as to the minors affected. Thus, § 26-21-4(1) violates both a minor petitioner's procedural and substantive due process rights to access to a constitutional judicial bypass of Alabama's parental consent law, and it unduly burdens her liberty interests. Under the strict guidelines of Bellotti II, this section of the Act is unconstitutional. Miller, 934 F.2d at 1475 (Bellotti II imposes "strict" guidelines for a bypass proceeding).
Plaintiffs also argue that the Act is unconstitutional because it fails to ensure the affected minors' confidentiality.
Ala. Code 26-21-4(c). If the court determines at the initial hearing on the petition that additional evidence or testimony is necessary, it may adjourn the hearing and "issue instanter subpoenas or otherwise permit any party or participant in the hearing to bring before the court admissible
As to any appeal of the bypass court's decision, "[a]n expedited confidential and anonymous appeal shall be available to any minor to whom the court denies a waiver of consent, the district attorney's office, and any guardian ad litem,
Ala. Code § 26-21-8(a, b). The defendants assert that these provisions, and particularly the fact that Alabama law criminalizes disclosure of information regarding a bypass proceeding, provide reasonable assurance of confidentiality. (Doc. 63).
Under Bellotti II, a minor is entitled to an "anonymous" judicial bypass to a state's parental consent law. Bellotti II, 443 U.S. at 644, 99 S.Ct. 3035; see also Akron II, 497 U.S. at 512, 110 S.Ct. 2972 (the bypass procedure "must insure the minor's anonymity"). Eleven years after Bellotti II, the plurality opinion in Akron II determined that "anonymity," as used by the Bellotti II plurality, did not mean "complete anonymity," and that a bypass statute is facially constitutional if it "takes reasonable steps to prevent the public from learning of the minor's identity." Id. at 513, 110 S.Ct. 2972. The Court distinguished between "complete anonymity" and the practical need to disclose a minor petitioner's identity to court personnel "for administrative purposes, not for public disclosure." Id. In assessing the constitutionality of the bypass law at issue in Akron II, which criminalized disclosure of information related to the bypass petitioner or proceeding by court personnel, the Court "refuse[d] to base a decision on the facial validity of a statute on the mere possibility of unauthorized, illegal disclosure by state employees." Id.
Since Akron II, decisions from other courts have provided little in the way of guidance in interpreting the Supreme Court's holding that complete anonymity is not "critical," or in deciding what steps are "reasonable ... to prevent the public from learning the minor's identity." Id. See also, e.g., Miller, 934 F.2d at 1478 (Georgia law requiring a minor to reveal her full name
The Act runs afoul of these essential requirements. As noted above, defendants argue that the statute does more than impose the kind of non-specific confidentiality requirement found insufficient by other federal courts, because Alabama Code § 26-21-8 makes disclosure of information about a judicial bypass proceeding a criminal act. See Zbaraz, 763 F.2d at 1543 (the question before the court is "whether the ... statute assures a minor's anonymity during the course of the waiver proceedings with sufficient specificity."); Zbaraz v. Hartigan, 776 F.Supp. 375, 379 (N.D. Ill. 1991) ("general language stating that proceedings `shall be confidential' does not sufficiently ensure that a minor's identity will be withheld from the public.") (citing American College of Obstetricians and Gynecologists, Pennsylvania Section v. Thornburgh, 737 F.2d 283, 297 (3rd Cir.1984), aff'd 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986) (same)); Jacksonville Clergy Consultation Serv., Inc. v. Martinez, 696 F.Supp. 1445, 1448 (M.D. Fla. 1988), order dissolved, 707 F.Supp. 1301 (M.D. Fla. 1989) ("The common thread running through all of these cases is that in order for a statute to pass constitutional muster the provisions ensuring confidentiality, anonymity and expeditious judicial proceedings must be drafted with specificity and detail."). If § 26-21-8 were read in isolation, defendants' argument might warrant more credence. However, the court must examine the language of the Act — i.e., Alabama Code § 26-21-1 et seq. — as a whole, rather than reviewing only isolated provisions, in order to assess the operation of the sections at issue. See Commissioner of Internal Revenue v. Engle, 464 U.S. 206, 223, 104 S.Ct. 597, 78 L.Ed.2d 420 (1984) (noting that the true meaning of a single section of a statute, however precise its language, cannot be ascertained if it is considered apart from related sections.).
Other provisions of the Act render § 26-21-8 impotent as an assurance of anonymity
The Act's provisions allowing parties or the court to investigate, gather evidence, and issue subpoenas, as well as the involvement of witnesses who have the right to participate in the proceedings for the purpose of presenting evidence and requesting delays, also breach the minors' anonymity and the confidentiality of the proceedings. See Ala. Code §§ 26-21-4(c), (f). In addition, the Act contains a catch-all exception to § 26-21-8: bypass information and the minor's identity may permissibly be shared with "any appropriate court personnel, any witness who has a need to know the minor's identity, or any other person determined by the court who needs to know. Any person who is given the identity of the minor shall keep her name confidential and shall not give it to any other person, unless otherwise ordered by the court." Ala. Code § 26-21-4(n). In other words, the bypass court acts wholly within its statutory discretion in authorizing disclosure to an unlimited number of people, including witnesses who may be called by the DA, the GAL, or a parent or guardian to offer "admissible evidence or testimony either in support of or against
This is a very far cry from the strictly limited disclosure to court personnel for administrative purposes that was approved by Akron II. On the contrary, the Act "raise[s] the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy. Thus, [it poses] an unacceptable danger of deterring the exercise of that right, and must be invalidated." Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 767-68, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), overruled on other grounds by Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674; see also id. at 766, 106 S.Ct. 2169 ("The decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity.... `It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties.'... A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly.").
Bellotti II and Akron II mandate "reasonable" efforts to ensure the anonymity of the petitioner and confidentiality of the bypass proceedings. The Act goes well beyond reasonable and permissible disclosure, creating a statutory scheme that not only fails to assure a petitioner that her anonymity will be protected, but actually authorizes disclosure without any limits at all, save only for the discretion of the bypass judge. The court presumes that judges will act lawfully and prudently in the exercise of their duties. But the unfettered authority granted by the Act goes too far, and it violates a minor's constitutional right to an anonymous and confidential judicial bypass to Alabama's parental consent law.
In reaching the foregoing conclusions, the court has carefully considered
As to the latter, defendants do not indicate specifically how the challenged provisions of the Act offer pregnant minors any kind of guidance or assistance. The court can only speculate that defendants might be claiming some incidental — and unexplained — salutary effect emanating from the bypass proceeding itself, perhaps resulting from the minor's being cross-examined by the DA or the GAL for the fetus, or from her being privy to the testimony of a parent or a witness for an opposing party. But the Act itself is silent on this subject; it offers no clue at all as to how the challenged provisions might be designed to serve the Legislature's goal of "provid[ing] guidance and assistance to minors who find themselves in the unfortunate position of having to make [an abortion] decision[.]" Ala. Code § 26-21-1(f). It is true that states may require — as the Supreme Court made clear in Casey — that a physician or a qualified non-physician be tasked with apprising the minor of truthful, non-misleading information concerning the nature of the procedure, the attendant health risks and those of childbirth, the probable gestational age of the fetus, and the assistance available should the minor petitioner decide to carry the pregnancy to full term. See Casey, 505 U.S. 833, 881-883, 112 S.Ct. 2791, 120 L.Ed.2d 674. But because the Act itself notes no overtly educational purpose for the participation of the parents or guardian, the DA, the GAL for the unborn child, or any subpoenaed witnesses in the judicial bypass proceeding, the court must decline to infer one.
Indeed, the bypass proceeding would be redundant as a tool for the counseling of the minor; the petitioner herself is charged by statute, in an unchallenged portion of the Act, with providing the court "probative and admissible evidence" that she has been informed of and understands the medical procedure and its consequences, and that she has been counseled by a "qualified person" as to the alternatives to abortion. Ala. Code § 26-21-4(h). She must "explain each of the foregoing to the court," and the court "shall be satisfied that she is making an informed judgment and shall document its finding in its order." Id. The petitioner also must present "such additional probative evidence" to the court of her maturity as will demonstrate that she has "sufficient experience with and understanding of life" to enable her to make mature and informed decisions. Id. These are prerequisites to the minor's obtaining relief. Charging the bypass court itself with the responsibility of providing the petitioner with an appropriate education concerning her choice via the addition of the parties and witnesses permitted by the Act — after the minor has already received expert counseling and has presented evidence to that effect, and has also offered proof of her achievement of the requisite level of experience with and understanding of life — would be duplicative of these mandates.
Nor is it clear that a parent, guardian, DA, GAL, or witness would ordinarily represent a "qualified person" capable of educating the minor concerning the health
Absent the Legislature's explicit expression of the intent to provide the minor guidance and assistance by means of the challenged portions of the Act, the court turns to the consideration of those provisions as they relate to the Legislature's stated objective of requiring judges in bypass proceedings "[to] be provided with sufficient evidence and information upon which they may make informed and proper decisions." Ala. Code § 26-21-1(d). In this regard, the Act says specifically that the DA, the GAL, and the witnesses called by the parties should present evidence for the purpose of assisting the court in making an informed decision and in doing substantial justice. See Ala. Code § 26-21-4(i) (charging the DA with "present[ing] evidence for the purpose of providing the court with a sufficient record upon which to make an informed decision and to do substantial justice."); Ala. Code § 26-21-4(j) (giving the GAL for the fetus "the responsibility of assisting and advising the court so the court may make an informed decision and do substantial justice."); Ala. Code § 26-21-4(k) (permitting the DA and any other party "to obtain evidence, subpoena witnesses, or to obtain and present any evidence or information which will be necessary and appropriate for the court to make an informed decision.").
Notably, however, no such reason is given for the participation of parents or guardians who are "otherwise aware" of the bypass proceeding. Ala. Code § 26-21-4(l). Further, although the Act indicates generally that the DA, the GAL for the fetus, and the witnesses called by these parties should assist the court in making an informed decision and in doing substantial justice, it says little else on the subject. For example, it makes no finding that judicial bypass proceedings previously undertaken under Alabama's former bypass law — "which was enacted in 1987 and remained substantively unchanged for 27 years," and in which "the only necessary party to the bypass proceedings identified by statute was the minor petitioner," RHS I, 204 F.Supp.3d at 1307 — were in fact deficient in developing the evidence necessary for bypass courts to decide the issues properly before them. Also, the necessity for these additional persons to help the court in making an informed and proper decision is called into question by the fact
In addition, the Act specifically directs the bypass court to deny an inadequately supported petition. See Ala. Code § 26-21-4(h) ("It shall not be sufficient that the court find the minor mature because she has requested relief from the court, but rather the totality of the evidence must be probative and of such weight to prove that the minor is mature and well-informed enough to make the abortion decision on her own, or that the performance of the abortion will be in her best interest. Uncorroborated legal conclusions by the minor shall not be sufficient to support a determination by the court to grant her petition. In the event of a denial of the petition by the court, the minor may re-file the petition once for a de novo hearing with the court."); see also Bellotti II, 443 U.S. at 648, 99 S.Ct. 3035 ("If ... 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."); Ex parte Anonymous, 889 So.2d 525, 525 (Ala. 2003) ("The burden of proof with respect to both the maturity/well-informed prong and the best-interest prong of § 26-21-4(f), Ala. Code 1975, lies with the minor."). And, indeed, the Alabama courts traditionally have not hesitated to deny a waiver when the minor failed to meet her burden of proof. See, e.g., In re Anonymous, 964 So.2d 1239, 1243 (Ala. Civ. App. 2007) (affirming a bypass court's decision to deny a waiver where the minor presented minimal evidence to satisfy her burden of proof); Ex parte Anonymous, 889 So.2d at 525-26 (concluding that the minor failed to carry her burden of proof as to the best interest prong); In re Anonymous, 833 So.2d 75, 78 (Ala. Civ. App. 2002) (deciding that the trial court did not err in finding that the minor failed to meet her burden of proof as to either prong of § 26-21-4(f)). The appellate courts have also felt free to remand for additional findings. See In re Anonymous, 956 So.2d 427, 428 (Ala. Civ. App. 2006) (remanding a case to the juvenile court "`to detail sufficiently the basis for appropriate findings [and conclusions] and immediately to conduct such further proceedings, to include taking additional testimony or admitting further evidence, that may be necessary in order to do so.'") (brackets in original) (citation omitted). Thus, the statute itself, the long-standing practice of the Alabama courts, and Bellotti II all ensure that any petition which the bypass court finds legally unsupported simply will not prevail.
Finally, the court has located no other state which either mandates or permits participation by a parent or guardian, the DA, a GAL for the fetus, or witnesses (other than those called by the minor) in bypass proceedings for the purpose of providing the court with assistance in arriving at informed and proper decisions — or, indeed, for any other purpose. Some states, either by choice or by court order, do not mandate parental consent or notification at all, and therefore have no bypass procedures.
Accordingly, the State's interest in the bypass court's having sufficient evidence and information upon which to make informed and proper decisions, Ala. Code § 26-21-1(d), clearly is still well-served under the Act, even absent additional testimony or advocacy offered by participants other than the minor.
Finally, for the reasons discussed above, the provisions which require or permit notice to, and the participation of, the minor's parents or legal guardians, the DA, a GAL for the unborn child, and unspecified witnesses or others who may be subpoenaed or otherwise need to know the minor's identity do not advance the State's express § 26-21-4(k) interest in enacting a constitutional bypass procedure. See Ala. Code § 26-21-1(c) ("The Legislature enacts a judicial by-pass procedure for the purposes of meeting the Constitutional standard...."); Ala. Code § 26-21-1(f) ("It is not the Legislature's intent to place an undue burden on the minor's otherwise legal right to make a decision on whether to obtain an abortion of her unborn child...."). On the contrary, the Act clearly imposes an undue burden on the rights of the minor participants to whom it applies.
As the court explained in RHS I,
204 F.Supp.3d at 1335.
Article III of the U.S. Constitution "limits the jurisdiction of federal courts to cases and controversies." Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011) (internal quotation marks omitted). An appropriate action for declaratory relief can represent an actual case or controversy under Article III. See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). A federal court "may declare the rights and other legal relations of any interested party seeking such declaration[.]" 28 U.S.C. § 2201(a). However, 28 U.S.C. § 2201 provides that a declaratory judgment may only be issued in the case of "actual controversy" — that is, a "substantial continuing controversy between parties having adverse legal interests." Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir. 1985); see also 28 U.S.C. § 2201. This "continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury." Emory, 756 F.2d at 1552; Hartford Cas. Ins. Co. v. Intrastate Const. Corp., 501 Fed.Appx. 929, 937 (11th Cir. 2012). "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Steffel v. Thompson, 415 U.S. 452, 460 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
In declaratory judgment actions, the "actual controversy" requirement is imposed both by Article III of the Constitution and the express terms of the Declaratory Judgment Act. Id. at 458, 94 S.Ct. 1209. "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a
Christian Coalition of Alabama v. Cole, 355 F.3d 1288, 1291 (11th Cir. 2004).
The court holds, supra, that the sections of the Act that are challenged by plaintiffs' informational privacy claim are unconstitutional because they impose an undue burden on a minor's right under Bellotti II to a judicial bypass without parental involvement which also ensures the minor's anonymity. Under that holding, the portions of the Act that enable parties other than the minor petitioner to participate in a bypass proceeding and vest the bypass court with the authority to issue subpoenas are unconstitutional and without effect. See Ala. Code §§ 26-21-4(c), (f), (i), (j), (k), and (l). In short, the provisions of the Act that are challenged in Count II are no longer at issue, and there is no case or controversy with respect to plaintiffs' informational privacy claim.
Had the court agreed with the plaintiffs and found that the challenged provisions of the Act violate a minor petitioner's right to informational privacy, a declaratory judgment that portions of the Act that are unconstitutional under Bellotti II are also unconstitutional for violating a minor petitioner's right to informational privacy would be redundant in terms of the relief that is available to the plaintiffs. Certainly, the challenged provisions of the Act might be unconstitutional under multiple theories; however, in the Declaratory Judgment Act context, once those provisions are found to be unconstitutional for one reason and are declared to be unenforceable, any analysis of additional constitutional challenges is superfluous and advisory. Because the court cannot provide "meaningful relief" to the plaintiffs, the plaintiffs' informational privacy claim is "moot." Cole, 355 F.3d at 1290-91.
Accordingly, because there is no case or controversy with respect to plaintiffs' informational privacy claim, defendants are entitled to judgment on the pleadings as to Count II of the complaint, and this claim is due to be dismissed without prejudice. See Cummings v. State Farm Mut. Auto. Ins. Co., 323 Fed.Appx. 847, 848 (11th Cir. 2009) ("Because the existence of a justiciable controversy is a jurisdictional requirement... the district court lacked jurisdiction and should have dismissed the action without prejudice.") (citing Atlanta Gas Light Co. v. Aetna Cas. and Surety Co., 68 F.3d 409, 414 (11th Cir. 1995); Carter v. Telectron, Inc., 554 F.2d 1369, 1370 (5th Cir. 1977) (a dismissal for lack of jurisdiction must be without prejudice)).
"Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants," and the Supreme Court has "repeatedly characterized the Declaratory Judgment Act as an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant." Id. at 286-87, 115 S.Ct. 2137 (internal quotations omitted). "By the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants." Id. at 288, 115 S.Ct. 2137. The Eleventh Circuit has held "that the decision to hear a declaratory judgment action is discretionary, that there can be no rigid or mechanical application of the Declaratory Judgment Act, and that a vast spectrum of considerations is available to district courts deciding whether to hear declaratory judgment actions." Lexington Ins. Co. v. Rolison, 434 F.Supp.2d 1228, 1234 (S.D. Ala. 2006) (citing Manuel v. Convergys Corp., 430 F.3d 1132, 1135, 1137-38 (11th Cir. 2005)).
"There must be a sound basis for refusing to adjudicate an actual controversy, for the policy of the [Declaratory Judgment] Act is to enable resolution of active disputes." Capo, Inc. v. Dioptics Med. Prod., Inc., 387 F.3d 1352, 1357 (Fed. Cir. 2004).
Hollis v. Itawamba Cty. Loans, 657 F.2d 746, 750 (5th Cir. Sep. 30, 1981) (citations omitted). On the other hand, "[a] district court should not grant a declaratory judgment unless such adjudication would serve a useful purpose." Blue Hill Investments, Ltd. v. Silva, 2015 WL 9319394, at *3 (S.D. Fla. 2015) (citing Sierra Equity Grp., Inc. v. White Oak Equity Partners, LLC, 650 F.Supp.2d 1213, 1230 (S.D. Fla. 2009) (citing, in turn, Allstate Ins. Co. v. Employers Liab. Assur. Corp., 445 F.2d 1278, 1280 (5th Cir. 1971)).
Upon consideration of the Wilton factors of "practicality and wise judicial administration," 515 U.S. at 288, 115 S.Ct. 2137, the court exercises its discretion and declines to entertain plaintiffs' Declaratory Judgment Act challenge regarding plaintiffs' informational privacy claim. As a practical matter, it is a waste of scarce judicial resources to adjudicate this constitutional challenge to the Act after the court has ruled that the same challenged provisions of the Act are unconstitutional for a different reason. The plaintiffs have not sought relief under Count II that they do not also seek under Count I of the complaint; thus, there is no danger of denying plaintiffs relief that they could only access through an informational privacy claim. If, on the other hand, the court ruled in defendants' favor and declared that the Act does not violate plaintiffs' minor patients' informational privacy interests, the declaration would have no practical effect on the outcome of this case. The challenged provisions of the Act are unconstitutional under Bellotti II, and an opinion finding in favor of defendants on plaintiffs' informational privacy claim is, in effect, advisory. Defendants are entitled to judgment on the pleadings, and plaintiffs' informational privacy claim will be dismissed without prejudice. See Bacardi USA, Inc. v. Young's Market Co., 2016 WL 3087060, at *1, **8-9 (S.D. Fla. 2016) (dismissing without prejudice after finding that the court lacked subject matter jurisdiction over a Declaratory Judgment Act case because there was no justiciable case or controversy and, alternatively, if the court had jurisdiction, it declined to entertain the case for its failure to comport with the purpose of the Declaratory Judgement Act); see also, e.g., Spectera, Inc. v. Wilson, 2011 WL 1002699, at *2 (M.D. Ga. 2011) (declining to adjudicate and dismissing a declaratory judgment action without prejudice in favor of parallel state court action); Allstate Indemn. Co. v. Ivey, 653 F.Supp.2d 1215, 1219 (N.D. Ala. 2009) (declining to entertain a declaratory judgment action and dismissing without prejudice and instructing the plaintiff to pursue a remedy in state court); United Purchasing Ass'n, LLC v. Am. Valve, Inc., 2008 WL 2557559, at *2 (M.D. Fla. 2008) (declining a declaratory judgment case and dismissing without prejudice because of a lack of personal jurisdiction over a party and because of the possibility of inconsistent declarations in light of a similar case pending in a Minnesota state court).
In Counts III and IV of plaintiffs' complaint, the plaintiffs aver that the Act "limit[s] judicial bypass to only Alabama residents." (Doc. 1 at 13-14). However, the parties now assert, and the court agrees, that the Act — whether intentionally or unintentionally — exempts out-of-state minors from the parental consent requirement of § 26-21-1 et seq. such that an out-of-state minor needs neither parental consent nor a
In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), the Supreme Court stated that unconstitutional provisions in a statute shall be severed if it appears that a legislature would have enacted the constitutional provisions of the statute independently of the unconstitutional provisions. 462 U.S. at 931-32, 103 S.Ct. 2764 (citing Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)). "Severability clauses, it is true, do express the enacting legislature's preference for a narrow judicial remedy. As a general matter, [courts] attempt to honor that preference." Hellerstedt, 136 S.Ct. at 2319. That said, "a severability clause is an aid merely; not an inexorable command." Id. (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 884-85, n. 49, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)).
The Act does not contain a severability clause, but Alabama has a comprehensive severability statute that applies to all Alabama laws. See Ala. Code § 1-1-16 ("If any provision of this Code or any amendment hereto, or any other statute, or the application thereof to any person, thing or circumstances, is held invalid by a court of competent jurisdiction, such invalidity shall not affect the provisions or application of this Code or such amendment or statute that can be given effect without the invalid provisions or application, and to this end, the provisions of this Code and such amendments and statutes are declared to be severable."); see also State ex rel. Pryor ex rel. Jeffers v. Martin, 735 So.2d 1156 (Ala. 1999) ("[T]he judiciary's severability power extends only to those cases in which the invalid portions of an act are not so intertwined with the remaining portions that such remaining portions are rendered meaningless by the extirpation.")(internal quotation marks and citations omitted). "As the Alabama Supreme Court has explained, `We regard § 1-1-16 as an expression of legislative intent regarding the general power and duty of the judiciary to sever and save statutory provisions not tainted by the unconstitutionality of other provisions in the same statute.'" Strange II, 172 F.Supp.3d at 1282 (quoting State ex rel. Pryor v. Martin, 735 So.2d 1156, 1159 (Ala.1999)). The court is persuaded that the Alabama Legislature has clearly expressed a preference for severability of unconstitutional portions of a statute from the whole, and the intention that the remainder shall be effective absent the unconstitutional portions as long as the extrication will not cause the statute to be meaningless.
As to the Act presently before the court, the Legislature's clear intent was to create a constitutional judicial bypass procedure. See Ala. Code § 26-21-1(c) ("The Legislature further finds that the United States Supreme Court has held under certain circumstances a minor may seek permission to have an abortion without her parent's consent by petitioning a court. The Legislature enacts a judicial by-pass procedure for the purposes of meeting the Constitutional standard[.]"); Ala. Code § 26-21-1(f) (It is not the Legislature's intent "to place an undue burden on the minor's otherwise legal right to make a
Accordingly, the unconstitutional provisions of the Act will be severed from the remainder of the judicial bypass law.
For the reasons discussed in this decision, the following provisions of the Act are unconstitutional in their entirety: Alabama Code § 26-21-4(i) (the participation of the DA as a party), § 26-21-4(j) (the participation of a GAL for the unborn child as a party), and § 26-21-4(1) (the participation of a parent, parents, or legal guardian of the minor petitioner as a party).
Other provisions of the Act are not wholly unconstitutional. The references to the DA, GAL, and other parties will be severed from Alabama Code §§ 26-21-4(c), (e), (f), (k), and (n). The Act's provisions permitting disclosure of a minor petitioner's identity to "any witness who has a need to know the minor's identity[] or any other person determined by the court who needs to know" are too broad to ensure a petitioner's anonymity and, consequently, are unconstitutional; thus, that language will be severed from § 26-21-4(c). The provisions of Alabama Code § 26-21-4(f) that permit the bypass court, if it determines that "additional evidence or testimony is necessary," to delay the bypass proceeding sua sponte to issue "subpoenas... to bring before the court admissible evidence or testimony either in support of or against the petition," does not reasonably safeguard the petitioner's anonymity; it opens the door to the unrestricted notification of the minor's relatives, teachers, friends, acquaintances, and other potential witnesses concerning her bypass proceeding. After severance of the unconstitutional language, Alabama Code § 26-21-4(f) reads:
Id.
Those portions of the Act that are not expressly severed herein will remain substantively unchanged.
In their complaint and motion for entry of a preliminary injunction, plaintiffs ask this court not only to issue a declaratory judgment but also to grant preliminary and permanent injunctive relief with respect to the unconstitutional provisions of the Act. Recently, another judge of this court addressed whether injunctive relief is ordinarily necessary after a court declares a statute or provision unconstitutional. See Strange II, 172 F.Supp.3d at 1292. The court is persuaded by that decision and finds that the plaintiffs' claims for injunctive relief are moot because of the operation of the declaratory judgment issued on this date, which renders the unconstitutional provisions of the Act unenforceable. Id.
"Generally, the effect of enjoining the enforcement of a statute and declaring it unconstitutional are `virtually identical.'... `[A] district court can generally protect the interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger injunctive medicine will be unnecessary.'" Id. (quoting Wooley v. Maynard, 430 U.S. 705, 711, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977)) (brackets in original). This is such a case. The court assumes, barring evidence to the contrary, that the defendants and the State of Alabama will act in accordance with the law
For the reasons discussed above, the court finds that certain sections of the 2014 amendments ("the Act") to Alabama's judicial bypass law — a law which has otherwise remained substantively unchanged since its enactment in 1987 — violate a pregnant minor's long-established constitutional right to seek a judicial bypass to a state's parental consent law without the participation of her parent, parents, or legal guardian as parties to the bypass proceeding, and her right to an anonymous judicial bypass hearing. In reaching this conclusion, the court applies 38 years of Supreme Court authority on the subject, as all lower federal courts are bound to do. The court takes the Alabama Legislature at its word that it intended to enact a constitutional judicial bypass scheme. See Ala. Code § 26-1-1(c). However, the judicial bypass option, is rendered meaningless if, as in Alabama's bypass statute — which has no counterpart in any other state bypass law — parents or legal guardians can participate as parties under some circumstances, and if there are insufficient safeguards to protect the anonymity of the minor petitioner. These are cornerstone requirements for a judicial bypass law to pass constitutional scrutiny. Because portions of the Act unduly burden a pregnant minor's right to a constitutionally compliant judicial bypass option — which is required as a matter of law for states, such as Alabama, that restrict a pregnant minor's access to an abortion without the prior consent of her parent(s) or legal guardian — those provisions are unconstitutional.
Accordingly, it is
Furthermore, consistent with this memorandum opinion, it is
A final judgment consistent with this memorandum opinion will be entered contemporaneously herewith.
DONE, on this the 28th day of July, 2017.
The Legislature's findings of fact regarding Alabama's parental consent law — which is not the subject of this litigation — are also found at § 26-21-1. Those findings are as follows:
Ala. Code 26-21-1(a)-(b). The court does not consider these legislative findings in this opinion, as they are solely related to Alabama's parental consent law, and they are set out separately from the Legislature's findings with regard to the judicial bypass statutes. Also, some of the Legislature's findings regarding the parental consent law are at seemingly at odds with its findings about judicial bypass. For example, the Legislature's findings implying that minors are per se immature and which express a preference for parental involvement in a minor's abortion decision are irreconcilable with a minor's right to a judicial bypass, which is designed to allow a minor to circumvent a state's parental consent requirement as well as her parent's or guardian's wishes. Indeed, a bypass option guarantees the minor the right to attempt to show the bypass court that she is not per se immature, but instead sufficiently mature in fact to make an abortion decision. See Akron II, 497 U.S. at 511-13, 110 S.Ct. 2972 (a minor is entitled to an opportunity to demonstrate to a bypass court that she is mature enough to make an informed abortion decision "without regard to her parents' wishes"); c.f., Ala. Code § 26-21-1(a)-(b), § 26-21-1(c)-(f).
However, this court cannot endorse quite so anodyne a description of the DA's role, which the language of the Act itself calls into question. The Act mandates that the DA "shall participate as an advocate for the state to examine the petitioner and any witnesses[.]" Ala. Code § 26-21-4(i). The Legislature found that "it is the interest of the State of Alabama to not only establish and protect the rights of the minor mother, but also to protect the state's public policy to protect unborn life[.]" Ala. Code § 26-21-1(d). The rights of the minor granted by the Act are to "seek permission to have an abortion without her parent's consent by petitioning a court," Ala. Code § 26-21-1(c), and "to be represented by an attorney and that if she is unable to pay for the services of an attorney one will be appointed for her." Ala. Code § 26-21-4(b). Thus, the Act plausibly may be read to say that the DA acts within the scope of the Act by safeguarding the two codified process "rights" of the minor petitioner — that is, her right to file a bypass petition and her right to court-appointed counsel — and that the DA otherwise must advocate in favor of Alabama's policy of protecting unborn life, a responsibility that necessarily is in conflict with the minor's purpose for seeking a judicial bypass. In short, it is not unreasonable for a DA to assume that he or she is required to oppose the merits of bypass petitions as a matter of law.
This seems to have been the conclusion of the DA in the recent case of Matter of Anonymous, ___ So.3d ___, ___, 2017 WL 2963002, at *2 (Ala. Civ. App. July 12, 2017), the first case known to the court to be decided under the Act. In that case, the DA opposed, and thereafter appealed, a juvenile court's order permitting a 12-year-old minor to bypass the parental consent requirement where her pregnancy was the result of repeated rape by an adult relative, she did not know her father and his whereabouts were unknown, the rape had occurred while the minor was in the mother's custody, the minor filed her bypass petition while in the custody of the Alabama Department of Human Resources ("DHR") based on reports of physical abuse at the hands of her mother, such abuse had resulted in the minor's removal from the mother's custody on five occasions, and the minor had "no familial support." Id. ___ So.3d at ___, 2017 WL 2963002, at *4. The DA appeared in the bypass proceeding pursuant to Ala. Code § 26-21-4(i), and appealed that court's ruling in favor of the minor under Ala. Code § 26-21-4(n). Id. Although the DA represented to the court that "`[t]he District Attorney is neither an advocate for or against the granting of consent, but rather serves to protect the process,'" id. ___ So.3d at ___, 2017 WL 2963002, at *2, members of the DA's office appeared and examined witnesses at the trial, id., and the DA urged the Alabama Court of Civil Appeals to conclude that the minor was too immature to make an informed decision and that there was no evidence that the abortion would be in the minor's best interest. Id. ___ So.3d at ___, 2017 WL 2963002, at *3. The Court observed that the DA only made one procedural objection to the bypass court's "trial" and that the DA also challenged the substance and the merits of the bypass court's decision to grant the minor's petition. Id. ___ So.3d at ___-___, 2017 WL 2963002, at 2-3. Thus, under the Act, bypass petitioners could well face a formidable antagonist in their proceedings: the chief prosecuting authority of the county in which the minor resides, empowered by the Act to represent the state's public policy to protect unborn life, and backed by substantial state resources.
Further, there is no doubt that the GAL for the unborn child must oppose the petition. See, e.g., Ex parte Anonymous, 810 So.2d 786, 789 (Ala. 2001) (the GAL for the fetus "subjected [the minor] to a probing cross-examination"); Ex parte Anonymous, 889 So.2d 525, 527 (Ala. 2003) (a GAL was appointed "`to represent the silent voice in this case.'"). See generally "In the Matter of Anonymous, A Minor: Fetal Protection in Hearings to Waive Parental Consent for Abortion," Helena Silverstein, Cornell Journal of Law and Public Policy (Vol. 11, Fall 2001), pp. 69-111. In addition, the parent or guardian — precisely the person whose opprobrium the minor is attempting to avoid by seeking a bypass — is reasonably likely to do the same.
As the Matter of Anonymous case illustrates, the admission of these new participants to the bypass proceeding appears to stand on its head the well-established view of the Alabama courts, before the Act was passed, that bypass proceedings are "not only nonadversarial in nature," but also are proceedings which "specifically den[y] those persons who arguably are interested in the outcome — i.e., the minor's parents and other family members — the right to appear and be heard." Ex parte Anonymous, 806 So.2d 1269, 1276 (Ala. 2001). Indeed, the Alabama Supreme Court noted, "the mandated secrecy of the hearing prevents anyone, at least in theory, from opposing the minor." Id. Because of the greater difficulty of rendering opinions "in such unilateral proceedings," the court found "a perceptive, intuitive, and discerning trial judge, as well as his or her specific factual findings" to be "arguably more necessary than in other cases where opposing advocacy ultimately reveals the facts" — one factor in the court's decision to permit the use of an ore tenus standard of review for such proceedings. Id.
While this court does not, in this opinion, reach plaintiff's argument that Bellotti II does not permit a state to create an adversarial bypass proceeding, see n. 24, infra, it notes that at least one other court has found such a proceeding to be constitutionally impermissible. See Zbaraz, 776 F.Supp. at 382-83 ("The Bellotti II plurality, in mandating that a pregnant minor should be given an alternative procedure to seeking parental approval prior to having an abortion, apparently did not contemplate that such a procedure would be a formal adversarial proceeding. 443 U.S. at 643 n. 22, 99 S.Ct. at 3048 n. 22 (`... [M]uch can be said for employing procedures and a forum less formal than those associated with a court of general jurisdiction.').... Nor would an adversary proceeding be consistent with the purpose or nature of the hearing.).") (some citations omitted). As the Sixth Circuit has said, "a state may not erect procedural hurdles in the path of a woman seeking an abortion simply to make it more difficult for her to obtain an abortion." Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 461 (6th Cir. 1999).
Gen. Fid. Ins. Co. v. Garrett, 998 F.Supp.2d 1312, 1315 (M.D. Ala. 2014). Here, the court does not consider the nine Ameritas factors because there is no parallel state court lawsuit and the factors do not offer relevant guidance to the decision at hand. "[T]he Supreme Court in Wilton elaborated on the ability of a federal court to decline jurisdiction, implicitly recognizing that a court may decline jurisdiction over declaratory actions even in the absence of parallel state-court proceedings." ITL Int'l, Inc. v. Ninoshka, S.A., 2011 WL 3205590, at *3 (S.D. Fla. 2011) (citing Wilton, 515 U.S. at 287-88, 88 n. 2, 115 S.Ct. 2137). Such is the case here.
