Eugene Glick, M.D., and Planned Parenthood of Washoe County v. Brian McKay Attorney General of the State of Nevada

937 F.2d 434, 91 Daily Journal DAR 7570, 1991 U.S. App. LEXIS 13075, 1991 WL 108429
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 21, 1991
Docket85-2335
StatusPublished
Cited by35 cases

This text of 937 F.2d 434 (Eugene Glick, M.D., and Planned Parenthood of Washoe County v. Brian McKay Attorney General of the State of Nevada) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eugene Glick, M.D., and Planned Parenthood of Washoe County v. Brian McKay Attorney General of the State of Nevada, 937 F.2d 434, 91 Daily Journal DAR 7570, 1991 U.S. App. LEXIS 13075, 1991 WL 108429 (9th Cir. 1991).

Opinion

BRUNETTI, Circuit Judge:

Plaintiffs-appellees Dr. Eugene Glick, a physician, and Planned Parenthood of Washoe County, a non-profit family planning clinic, challenged the constitutionality of Nevada Revised Statute (NRS) 442.-253(l)(c), which requires that an attending physician performing an abortion explain the physical and emotional implications of having an abortion to the woman; NRS 442.255, which requires parental notification or court authorization before a physician may perform an abortion upon an un-emancipated minor; NRS 442.2555, which provides an appeal procedure when such court authorization has been denied; and NRS 442.257, which provides for criminal penalties for the violation of NRS 442.-253(l)(c) and NRS 442.255. Appellees sought declaratory and injunctive relief pursuant to the Constitution and 42 U.S.C. *436 § 1983. Defendants-appellants are the Attorney General of the State of Nevada and Nevada’s seventeen District Attorneys, the state and local officials charged with enforcing the challenged statute.

On motion for preliminary injunction, the district court held that the explanation requirement was constitutional, but that the parental notification requirement (NRS 442.255), the appeal procedure (NRS 442.-2555), and the criminal penalty provision (NRS 442.257) would be preliminarily enjoined. Glick v. McKay, 616 F.Supp. 322 (D.Nev.1985). Defendants appeal the court’s preliminary injunction order. After briefing and argument, we withheld judgment pending the decision of the United States Supreme Court in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986), Hartigan v. Zbaraz, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987), Hodgson v. Minnesota, — U.S. -, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), and Ohio v. Akron Center for Reproductive Health, — U.S.-, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II), which had been accepted for review. We now affirm.

I.

A district court’s order regarding preliminary injunctive relief is subject to limited review. The grant of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Religious Technology Center, Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir.1989). However, the interpretation of a statute is a question of law that we review de novo. See, e.g., IMEL v. Laborer’s Pension Trust Fund for No. Calif., 904 F.2d 1327, 1330 (9th Cir.1990). This is true, as well, for questions of law underlying the issuance of a preliminary injunction. Guam Fresh, Inc. v. A.D.A., 849 F.2d 436, 437 (9th Cir.1988). Accordingly, although this appeal arises from a ruling on a motion for a preliminary injunction, important constitutional issues are at stake and the customary discretion accorded to a district court’s ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law. See Thornburgh, 476 U.S. at 757, 106 S.Ct. at 2177 (“if a district court’s ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction”).

II.

Appellants first argue that because the Nevada parental notification requirement does not permit parents to veto their minor daughter’s decision to have an abortion, unlike a consent requirement, the threat of an absolute veto is arguably absent. Therefore, they contend that a judicial or other procedure for bypassing the parental notification requirement is not constitutionally required.

In Akron II the Supreme Court specifically left this question open, as it found that the Ohio parental notification statute at issue satisfied the requirements identified for parental consent statutes in Planned Parenthood Association of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion), Planned Parenthood Association of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), and Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I). See Akron II, 110 S.Ct. at 2979. Though we hold infra that the Nevada statute does not similarly satisfy the requirements for a parental consent statute, we need not address whether such a judicial or other bypass procedure is constitutionally required.

Appellees attack only the adequacy of the judicial bypass, not the lack of it. Because the Nevada parental notification statute contains a bypass procedure, we must address the constitutional adequacy of the procedure, but we are constrained from *437 addressing the constitutional necessity of such a procedure.

III.

The Nevada parental notification statute specifically provides a bypass procedure. See NRS 442.255 and 442.2555. Appellants argue that this procedure is constitutionally sufficient.

In Akron II

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937 F.2d 434, 91 Daily Journal DAR 7570, 1991 U.S. App. LEXIS 13075, 1991 WL 108429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eugene-glick-md-and-planned-parenthood-of-washoe-county-v-brian-mckay-ca9-1991.