SUPREME COURT OF NEW JERSEY
Marguerite T. Simon, P.J. Ch.
Superior Court of New Jersey
Docket No. BERL-8026-99EM
Planned Parenthood of Central New Jersey; Planned Parenthood Association of the Mercer Area; American Academy of Pediatrics/New Jersey Chapter; Metropolitan Surgical Associates, Inc., d/b/a Metropolitan Medical Associates; Cherry Hill Women's Surgery Center; Women's Choice Medical Center; Doctors of West New York; South Jersey Women's Center; Gyne Surgical Associates of Middlesex County, P.A.; Women's Surgicare of Howell, P.A.; Gerson Weiss, M.D.; Herbert Holmes, M.D.; and George Dainoff, D.O.,
John Farmer, Attorney General of the State of New Jersey, in his official capacity, and his successors in office; Christine Grant, Commissioner, Department of Health and Senior Services of the State of New Jersey, in her official capacity, and her successors in office; Hon. Richard S. Williams, Director, Administrative Office of the Courts of theState of New Jersey, in his official capacity, and his successors in office,
BRIEF OF PLAINTIFFS-APPELLANTS
Lenora M. Lapidus
American Civil Liberties Union of New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, New Jersey 07102
Reproductive Freedom Project
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, New York 10004
For more than twenty years, New Jersey law has expressly allowed minors who are capable of giving informed consent to obtain all medical care related to their pregnancies, including abortion, without mandatory parental involvement. And, for more than twenty years, pregnant minors have received care from dedicated professionals who have encouraged, but not coerced, young women to involve their parents in their reproductive decisions. Those minors who feel that it is safe to involve a parent in their decision whether to have an abortion have been free to do so; indeed, the majority involve a parent. The more limited group of minors who feel that it is not safe to involve a parent have not been required to take that risk.
The statute allowing minors to consent on their own to health care related to their pregnancies, N.J. Stat. Ann. ß 9:17A-1, Pa27, is one of a series of New Jersey laws that enable minors to consent to a comprehensive range of sensitive health care services, see, e.g., N.J. Stat. Ann. ß 9:17A-4. These longstanding medical emancipation laws reflect an understanding that mandating, as opposed to encouraging, parental involvement in such areas can have serious harmful effects, including delaying and even entirely deterring minors from accessing medical care. In addition, by empowering minors to consent to a wide range of medical services, these laws recognize what the Superior Court also found, that most minors are competent to make informed decisions regarding their health care, and that physicians do not provide medical care without informed consent.
With no factual basis for questioning these two long-held understandings, the Legislature has now singled out abortion and removed it, and it alone, from the list of sensitive medical services that minors may obtain without parental involvement. If the Parental Notification for Abortion Act (the "Act"), L. 1999, C. 145, Pa26-31, takes effect, pregnant minors will no longer be able to terminate their pregnancies unless they first notify a parent or obtain a judicial bypass. Those pregnant minors who choose to have children face no similar requirements. They may continue to make the decision to bear a child, and either become a parent or place their child for adoption, N.J. Stat. Ann. ß 9:2-16, without involving a parent. They may also make all medical decisions concerning their pregnancy and ultimately their child without involving their parents.
By imposing on young women who seek an abortion the requirement that they first notify a parent or obtain a court order, the Act impermissibly infringes on the right of reproductive choice guaranteed by the New Jersey Constitution. And by imposing that requirement on those who choose abortion, but not on pregnant minors who choose to carry their pregnancies to term, the Act manifestly discriminates against pregnant minors on the basis of their decision to terminate their pregnancies. This discrimination infringes on the right to equal protection guaranteed by the New Jersey Constitution. The Superior Court erred in concluding that the Act did not impinge on these fundamental rights, an error resulting largely from the court's mistaken application of a less protective federal standard to determine whether the Act violates the more expansive provisions of the state Constitution.
The Superior Court compounded its error by failing to put the State to its burden of proving that the Act's significant infringements of minors' constitutional rights are justified by a compelling state interest or greater public need. Plaintiffs submitted overwhelming and uncontroverted evidence establishing that the Act hinders, rather than furthers, the State's asserted interests. In response, the State offered not a shred of evidence. Moreover, the State fails even to explain how its asserted interests justify requiring parental notice for minors who choose abortion but not for those who choose to bear children.
Finally, the Superior Court erred in holding that the Act's judicial bypass relieves any unconstitutional burdens the statute might otherwise impose. On the contrary, the evidence shows that, far from curing the Act's constitutional defects, the bypass places myriad, additional roadblocks in the path of minors who need abortions but cannot turn to their parents.
Each of these errors warrants reversal. Because the Act deprives young women seeking abortions in New Jersey of their fundamental, state constitutional rights to privacy and equal protection, and because the State has failed to establish that the Act is justified by a compelling state interest or greater public need, while Plaintiffs have overwhelmingly established otherwise, the Act must be struck as unconstitutional. In so holding, this Court will not stand alone. Courts in other states with similarly broad protections for individual rights have not hesitated to hold similar parental involvement laws unconstitutional. American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997); In re T.W., 551 So. 2d 1186 (Fla. 1989); Wicklund v. Montana, No. ADV 97-671 (Mont. Dist. Ct. Feb. 11, 1999)(attached as Exhibit A to Plaintiffs-Appellants' Addendum of Unpublished Decisions),(1) appeal dismissed, No. 99-311 (Montana Nov. 26, 1999); Planned Parenthood v. Alaska, No. 3AN-97-6014 (Alaska Super. Ct. Feb. 25, 1998), AdExB, appeal argued, No. S-08580 (Alaska Dec. 6, 1999); North Florida Women's Health & Counseling Serv. Inc. v. Florida, No. 99-3202 (Fla. Cir. Ct. July 26, 1999), AdExC.
Plaintiffs, the American Academy of Pediatrics/New Jersey Chapter, three physicians, and nine health care facilities, filed suit challenging the Act as violative of the New Jersey Constitution and seeking an order preliminarily restraining Defendants from enforcing the Act. On September 23, 1999, the Superior Court, Chancery Division, denied Plaintiffs' request for preliminary restraints. Pa420. Plaintiffs filed an emergency appeal. On September 27, 1999, this Court unanimously stayed the effective date of the Act until further order of the Court, and ordered the expedited proceedings in the Chancery Division. Pa438. On December 13, 1999, the Superior Court issued a decision upholding the Act. Pa440-75. Plaintiffs filed a notice of appeal, and this Court certified the appeal. Pa478-80.
For over two decades before passage of the Act, the law of New Jersey expressly permitted pregnant minors to consent to all "hospital, medical and surgical care related to [their] pregnanc[ies] or [their] child[ren]," without notifying a parent. N.J. Stat. Ann. ß 9:17A-1, Pa27. The Act specifically amends this provision by singling out pregnant minors who choose abortion and requiring them -- and only them -- to notify a parent before they may obtain this medical service. Act ß 1, Pa27.
The Act prohibits the performance of an abortion on a minor until at least 48 hours after written notice of the procedure has been provided to a parent, in person or by mail. Act ß 5, Pa29. The requirement may also be satisfied if a parent provides a notarized statement of knowledge of the abortion, or accompanies the minor to the facility where the abortion is to be performed. Act ß 6, Pa29; N.J. Admin. Code tit. 8, ß 8:72-2.2(a)(2), Pa38.
Any person who performs an abortion without complying with the Act is subject to civil penalties of up to $5,000, and "shall be liable in a civil action" brought by any parent who is "wrongfully denied notification." Act ß 11, Pa31.
The Act provides only two exceptions to its notice requirement. First, a minor need not notify a parent if the attending physician certifies that the abortion is necessary due to a medical emergency. Act ß 7, Pa29. Otherwise, a minor may be relieved of the requirement only by obtaining a judicial waiver. Act ß 8, Pa29-30.
The Act allows minors to seek a judicial bypass of the parental notification requirement. Act ß 8, Pa29-30. The Administrative Office of the Courts has issued two directives setting forth procedures in the trial court ("Trial Directive"), and in the appellate courts ("Appellate Directive") for minors seeking a judicial bypass.(2) Pa42-76.
The Trial Directive requires that a minor make a number of trips to the courthouse in order to pursue a waiver. First, she must file a petition with the Chancery Division, during normal working hours. Pa44(TD II.B.1). The petition may be filed only in the county where the minor resides, where she is being sheltered, or where the abortion is to occur. Pa44(TD II.A). To file a petition, a minor must inform court personnel that she is seeking a judicial waiver of the requirement that she notify a parent of her need for an abortion. Pa45(TD II.C.2). The minor must then be directed to a member of the Judicial Bypass Team, whose duties include assisting the minor in completing the petition. Pa45(TD II.C.2, II.C.3).
Although the Act requires that minors be allowed to proceed anonymously, Act ß 8(c), Pa29, the minor must provide her name, an address, and phone number "to allow the court to contact [her], if necessary." Pa60(TD III.6).
The minor is not appointed an attorney until after the petition is filed. Pa46(TD II.D.2). At that point, a member of the Judicial Bypass Team begins "contact[ing] the next attorney on the list of available counsel." Id. Once an attorney is located, the team member arranges a time for the attorney to consult with the minor. Pa46(TD II.D.3). The team member then contacts a designated judge to schedule the hearing. Pa46(TD II.D.4).
If the minor is unable to wait until a team member can find an "immediately available" attorney and schedule a hearing with the judge, the minor must return to the courthouse to receive, in person, a notice advising her of the time and place of the hearing. Pa46,62(TD II.D.5 & Att. IV).
The minor must then appear for her hearing. At the hearing, she bears the high burden of proving by clear and convincing evidence that: (1) she is sufficiently mature to decide whether to have an abortion; (2) there has been a pattern of physical, sexual, or emotional abuse by her parent, guardian, or legal custodian; or (3) notification of a parent is not in her best interests. Act ß 8(d)(1)-(3), Pa30.
If the judge finds a pattern of abuse, the Act requires the judge to report the abuse to the Division of Youth and Family Services ("DYFS"). Act ß 8(d)(2), Pa30. DYFS, in turn, must investigate the complaint and inform the minor's parent of the investigation and the nature of the allegations. See N.J. Admin. Code tit. 10, ßß 10:129A-2.1(a), 10:129A-3.1(a). Through these procedures, a parent may well learn of a minor's pregnancy and abortion.
Unless the minor requests an extension, the Superior Court must rule on the petition within 48 hours of filing, or the petition is deemed granted. Act ß 8(c), Pa29-30. An order granting or denying the petition must be made available to the minor and her attorney at the end of the 48-hour period, but there is no requirement that it be made available at the conclusion of the minor's hearing. Pa48(TD II.G.8). Thus, the minor may need to make yet another trip to the courthouse, as she is required to receive a copy of the order in person. Id.
The Act technically provides for an appeal. Act ß 8(f), Pa30. If the trial judge denies the minor's petition, however, the Act requires that notice of the planned abortion "shall" issue -- providing no exception for minors who decide to appeal the denial or for those who determine that they no longer wish to pursue an abortion in New Jersey. Act ß 8(e), Pa30.
The Act also effectively prevents a minor whose initial petition is denied from filing a second petition, based on changed circumstances, by requiring her to certify that no other court in the state has previously denied her request for a waiver. Pa60(TD III.5).
This Court gives deference to a trial court's findings and reviews them for abuse of discretion. Wheaton v. Smith, 160 N.J. 383, 398 (1999). "Matters of law, on the other hand, are subject to de novo review." Id.
Current Practice and Parental Involvement Without the Act
As the undisputed evidence establishes, even in the absence of a law mandating parental notification, the majority of minors involve a parent in their decision to have an abortion. Op18, Pa457; Pa159-60(Henshaw); 368, 369(Zabin); 243(Kinsler); 218(Johnson). The younger a teenager is, the more likely she is to notify her parents. Op19, Pa458; Pa159-60(Henshaw); 368-69(Zabin); 291(Tumberello); 243(Kinsler); 208-09(Holmes). Indeed, very few of the youngest minors have abortions without involving at least one parent. Pa160(Henshaw). And the majority of minors who do not involve a parent do involve another adult family member or friend in their decision. Id.; Pa243(Kinsler). When appropriate, health care providers in this state encourage teenage patients to involve their parents in their decision. Pa234(Kinsler); 218(Johnson); 402-419(Reply Certs. of Plaintiff-Providers).
Moreover, as the Superior Court found, whether or not a parent is involved, physicians in this state will not provide an abortion for a minor (or any patient) without first obtaining informed consent. Op23-24, Pa462-63 (finding "plaintiff medical providers employ good procedures to obtain consent"); Pa243-44(Kinsler); 291-294(Tumberello); 223(Johnson). The vast majority of teens are capable of understanding their options for dealing with a pregnancy and of making an informed decision. Op23, Pa462 (finding "teenagers are usually able to give informed consent"); Pa96-100(Adler); 244(Kinsler); 293-95(Tumberello); 223(Johnson).
In fact, the risks associated with an abortion, as opposed to childbearing, are few. A woman is more than 20 times more likely to die from continuing her pregnancy through childbirth than she is from a first-trimester abortion, when approximately 90% of all abortions are performed. Pa304(Weiss); 158(Henshaw); 371(Zabin). Continued pregnancy also poses a much greater risk of major medical complications than does abortion. Pa303-09(Weiss); 158-59(Henshaw); 371(Zabin). And abortion produces no significant or long-term adverse psychological effects. 90-96(Adler); Pa372(Zabin).
Effect of Parental Involvement Laws on Level of Parental Involvement in Minors' Abortion DecisionsThe undisputed evidence also shows that laws mandating parental involvement do not significantly increase the percentage of minors who involve their parents in their decision. A study comparing the rate of parental involvement in two states, one with a parental involvement requirement and one without, found no meaningful difference in the rates between the two states. Pa165(Henshaw). Rather than convincing minors who otherwise would not tell their parents to change their minds, parental involvement laws force most of those teens to seek a judicial bypass or to travel to other states without such laws. Pa268-69(Sabino); 151(American Academy of Pediatrics Statement ["AAP Statement"]).
Those minors who do not voluntarily involve a parent in their abortion decision usually have good reason not to. Pa234-38(Kinsler); 219-20(Johnson); 259-61(Sabino). Some young women do not involve a parent because they fear that disclosure of their sexual activity and pregnancy will lead to abuse. Pa124-25(Esquilin); 160-61(Henshaw); 311-12(Weiss). Many have already suffered abuse at the hands of a parent. Pa122, 124-25 (Esquilin); 259(Sabino).
Other young women have been threatened by their parents with severe repercussions if they were ever to become pregnant -- such as being beaten, thrown out of the house, or cut off financially. Pa259-60(Sabino); 235(Kinsler); 219-20(Johnson); 160(Henshaw). Teens often have good reason to take these threats seriously. Some have witnessed a sister being thrown out of the house when her pregnancy was discovered. 235(Kinsler); 259-60(Sabino). Some are just so desperate that they cannot afford to take the risk. For example, one teenager who sought an abortion in New Jersey had been shuttled among homes because her mother was in jail and her father was not around. She had been sent to live with a family friend, where she was abused by the friend's boyfriend. Finally, she moved in with her grandmother, where she felt safe. But her grandmother had told her that she would have nothing to do with her if she ever became pregnant. Fearing that she would have nowhere left to go, the teen felt she could not turn to her grandmother when she became pregnant. Pa219(Johnson).
Still other minors know that their parents have strong views against abortion and would prevent them from obtaining an abortion if they learned of the pregnancy. Pa235(Kinsler); 160(Henshaw); 220(Johnson). One young woman in Massachusetts, a state with a parental involvement law, refused to tell her parents because they had forced her to carry her previous pregnancy to term, and she did not want that to happen again. Pa260(Sabino).
Some teens refuse to burden parents who are already in distress. One young woman chose not to involve her mother because she feared that her mother, who was overwrought by the recent death of her son, would be unable to cope with the news of her daughter's pregnancy. Pa219(Johnson). Other teens choose not to tell their parents because of other life crises -- the parents are going through a divorce, a family member has a serious illness, or a sibling has been put in jail. Pa259(Sabino); 235-36(Kinsler); 219(Johnson).
Still other minors decline to involve a parent because they have little or no communication with their parents, often because their parents are addicted to drugs or alcohol. In those cases, the young woman frequently acts as the adult in the home, taking care of the household and other family members. These young women see no reason to tell their parents because they know from past experience that their parents will provide no support or guidance. Pa236(Kinsler); 260(Sabino); 296-97(Tumberello).
The concerns of minors about the consequences of involving parents in abortion decisions are, unfortunately, often well-founded. According to one study, a majority of minors reported adverse consequences when their parents learned of their pregnancies without having been voluntarily told by the minor. Pa160-61(Henshaw). The consequences were often those the minor had feared, including being subjected to physical or emotional abuse, and being thrown out of the home. Id.
Experts confirm that minors are often accurate in their assessment of their parents, and are better judges of their parents' reactions than those with no knowledge of the home. Pa125(Esquilin); 260(Sabino); 160-61(Henshaw). One New Jersey clinic director recounts the experience of a school counselor who learned this lesson the hard way. A student confided in the counselor about her pregnancy and decision to have an abortion. He encouraged her to tell her parents, but she declined, explaining that they would not understand. Perhaps believing that parents will always be supportive of their children in times of crisis, the counselor told the parents anyway. Unfortunately, the student was right; her parents threw her out of the house. Pa237(Kinsler).
Whether well founded or not, the fear of adverse consequences drives some minors to take extreme and dangerous measures. Pa161-62(Henshaw); 237-38(Kinsler); 258, 268, 269(Sabino). In one study, 23% of minors said that if parental notification were required, they would forgo a safe and legal abortion. Pa161-62(Henshaw). The results of that study are consistent with the considered opinion of experts who regularly consult with and treat adolescents, and who have concluded that, rather than notify a parent, some minors will either carry to term, attempt a self-induced abortion, seek an illegal abortion, or further delay their abortion and risk their