Zbaraz v. Hartigan

763 F.2d 1532, 53 U.S.L.W. 2604

Opinions

BAUER, Circuit Judge.

This appeal concerns the constitutionality of Illinois’ Parental Notice Abortion Act of 1983 (the Act). The district court found that the twenty-four hour waiting period imposed by Section 4(a) of the Act was unconstitutional because it unduly burdened the minor’s right to have an abortion in the absence of a compelling state interest. Zbaraz v. Hartigan, 584 F.Supp. 1452, 1458-59 (N.D.Ill.1984). The district court also found that the judicial procedures contained in Section 5 of the Act permitting waiver of notice to the minor’s parents were unconstitutional because they failed to assure the expeditious and confidential disposition of the proceedings at the trial level and on appeal. 584 F.Supp. at 1460-62. The district court held that these provisions were not severable from the Act because without them the Act would have little “operative significance,” and therefore declared the entire Act unconstitutional. Id. at 1464. Appellants appeal these holdings.

We affirm the district court’s holding that the twenty-four hour waiting period imposed by Section 4(a) is unconstitutional. We vacate, however, the district court’s holding that the provisions relating to the waiting period are not severable, and accordingly we sever those provisions from the Act. We also vacate the district court’s holding that the judicial procedures permitting waiver of notification provided for under Section 5 are unconstitutional, but enjoin enforcement of the Act until the Illinois Supreme Court promulgates rules which assure the expeditious and confidential disposition of the waiver of notice proceedings at trial and on appeal.

I. Statement of Facts

On November 2, 1983, the Illinois General Assembly enacted the Illinois Parental Notice of Abortion Act of 1983, P.A. 83-890, overriding the veto of Governor James Thompson. On January 26, 1984, plaintiffs filed a class action suit in federal court challenging the constitutionality of the Act. On that date the district court entered a temporary restraining order enjoining enforcement of the Act.

The district court subsequently certified both plaintiff and defendant classes. The plaintiff class consists of all licensed physicians presently performing or desiring to perform abortions for unemancipated minors and disabled persons in Illinois and all unemancipated minors capable of giving informed consent to an abortion or whose best interests would not be served by notice to both parents. The defendant class consists of all the State’s Attorneys of the various counties in Illinois.

On May 4, 1984, the district court granted plaintiffs’ motion for summary judgment, declaring the Act unconstitutional and permanently enjoining its enforcement. The district court found that the twenty-four hour waiting period imposed by the Act after a minor had notified both parents of her decision to have an abortion unconstitutionally burdened her right to have an abortion. The district court also found that the judicial alternative to notice provided by the Act was unconstitutional because it failed to assure that the proceedings would be conducted expeditiously and confidentially. The district court upheld the other provisions of the Act, but found that it could not sever the unconstitutional provisions without eviscerating the Act, and therefore declared the entire Act unconstitutional.

On June 30, 1984, the Illinois General Assembly amended the Act to provide that the waiver of notice proceedings “shall insure anonymity” and added a severability clause to the Act. P.A. 83-1128. These amendments were immediately enjoined. Defendants then filed this appeal, challenging the district court’s holdings.

II. The Twenty-Four Hour Waiting Period

In City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the Supreme Court struck down an ordinance which imposed a twenty-four hour waiting period on women who had, pursuant to the ordinance, given written consent to obtain an abortion. 103 S.Ct. at 2503. The stated purpose underlying the waiting period was to allow a woman time to reflect upon her decision to have an abortion, thereby making a more “informed” decision. The Court found that this provision imposed a burden on women seeking to obtain an abortion and that the state had failed to demonstrate that the waiting period furthered any legitimate state interest. Id. at 2503. Therefore, the Court held that the provision was unconstitutional.

Although the ordinance struck down in Akron applied to both adults and minors, the Supreme Court has not specifically addressed the application of waiting periods only to minors or weighed the state’s interest in promoting parental consultation with a minor who seeks to obtain an abortion against the burdens imposed on minors by a waiting period. The Akron court also stated that, in view of the unique status of children under the law, states have a “significant” interest in certain abortion regulations aimed at protecting children which is not present when the state seeks to regulate adults. Akron, 103 S.Ct. at 2491 n. 10 (citing Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788 (1976)). The holding in Akron, therefore, may not apply to minors. In view of the other case law in this area, however, including several cases from this circuit, it is apparent that the Supreme Court’s prohibition of waiting periods in abortion statutes also extends to statutes which regulate only minors.

The constitutional rights of minors do not receive lesser protection than the rights of adults. Danforth, 428 U.S. at 74, 96 S.Ct. at 2843 (citations omitted); Charles v. Carey, 627 F.2d 772, 785 (7th Cir.1980). Similarly, the burdens imposed by state regulation of abortion are no different for minors than for adults. Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 (1979) (Bellotti II); Indiana Planned Parenthood v. Pearson, 716 F.2d 1127, 1143 (7th Cir.1983); Wynn v. Carey, 599 F.2d 193, 196 n. 6 (7th Cir. 1979). Rather, the difference between abortion statutes which regulate adults and those which regulate only minors is that the state may have a significant interest promoted by a statute which regulates minors, but would have no legitimate interest in applying that statute to adults. Akron, 103 S.Ct. at 2491 n. 10; Danforth, 428 U.S. at 75, 96 S.Ct. at 2844. For example, the state has a legitimate interest in promoting parental consultation with a minor who is seeking to obtain an abortion because of the minor’s presumed inability to make important decisions in an informed, mature manner and the serious concerns implicated by a decision to have an abortion. Bellotti II, 443 U.S. at 634, 99 S.Ct. at 3043. The state has no legitimate interest, however, in promoting such consultation when the woman seeking an abortion is mature. Akron, 103 S.Ct. at 2497.

The state clearly has a significant interest in promoting parental consultation with a minor before her decision to have an abortion. Akron, 103 S.Ct. at 2491 n. 10; H.L. v. Matheson, 450 U.S. 398, 409-10,101 S.Ct. 1164, 1171-72, 67 L.Ed.2d 388 (1981) (quoting Bellotti II, 443 U.S. at 640-41, 99 S.Ct. at 3046-47); Pearson, 716 F.2d at 1143. On the other hand, 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. Matheson, 450 U.S. at 420, 101 S.Ct. at 1177 (Powell, J., concurring); Bellotti II, 443 U.S. at 647, 99 S.Ct. at 3050. Accord Akron, 103 S.Ct. at 2497-98 (parental consent statute); Planned Parenthood, Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 2525, 76 L.Ed.2d 733 (1983) (parental consent statute). In balancing these two rights, the Supreme Court upheld a parental notification statute in Matheson because that statute promoted the state’s interest in parental consultation with a minor without unduly burdening a minor’s right to have an abortion. Matheson, 450 U.S. at 413,101 S.Ct. at 1173. Accord Ashcroft, 462 U.S. 476,103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (upholding parental consent statute).

Neither the parental notification statute which the Court upheld in Matheson nor the parental consent statute which the Court upheld in Ashcroft requires a waiting period after notification or consent is effected. It is also worth noting that in Ashcroft the state did not appeal the Eighth Circuit’s holding that the Missouri statute’s forty-eight hour waiting period was unconstitutional. Ashcroft, 655 F.2d 848, 866 (8th Cir. 1981), affd in part, rev’d in part on other grounds, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (waiting period severed from statute). We have been able to find only one case in which a waiting period has been upheld, Wolfe v. Schroering, 541 F.2d 523, 526 (6th Cir. 1976), and that holding was subsequently overruled by the Sixth Circuit in City of Akron v. Akron Center for Reproductive Health, Inc., 651 F.2d 1198, 1208 (6th Cir. 1981), affd in part, rev’d in part on other grounds, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). Moreover, a plethora of cases have struck down provisions imposing a waiting period. See, e.g., Akron, 103 S.Ct. at 2503 (parental consent statute); American College of Obstetricians v. Thornburgh, 737 F.2d 283, 293 (3d Cir. 1984) (parental consent and informed consent statute); Indiana Planned Parenthood v. Pearson, 716 F.2d 1127, 1143 (7th Cir.1983) (parental notification statute); Women’s Services P.C. v. Thone, 690 F.2d 667, 668 (8th Cir.1982) vacated for further consideration in light of Akron, sub nom. Kerrey v. Women’s Services P.C., 462 U.S. 1126, 103 S.Ct. 3102, 77 L.Ed.2d 1358 (1983) (parental notification statute); Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1014-16 (1st Cir. 1981) (parental consent and informed consent statute); Charles v. Carey, 627 F.2d 772, 786 (7th Cir.1980) (informed consent statute); Wynn v. Carey, 599 F.2d 193,196 (7th Cir.1979) (parental consent statute); Women’s Medical Center of Providence, Inc. v. Roberts, 530 F.Supp. 1136, 1137, 1147 (D.R.I.1982) (informed consent statute); Leigh v. Olson, 497 F.Supp. 1340, 1348 (D.N.D.1980) (parental notification and informed consent statute); Margaret S. v. Edwards, 488 F.Supp. 181, 212 (E.D. La.1980) (parental notification and informed consent statute); Women’s Community Health Center v. Cohen, 477 F.Supp. 542, 551 (D.Me.1979) (informed consent statute).

These cases hold that a waiting period places a direct and substantial burden on women who seek to obtain an abortion. This burden is the same for minors as for adults, Bellota II, 443 U.S. at 642, 99 S.Ct. at 3047; Charles v. Carey, 627 F.2d at 785, and therefore “the same objections to the waiting periods for adults listed in City of Akron apply to waiting periods for minors.” Pearson, 716 F.2d at 1143. The burden imposed by a waiting period has been reiterated with little variation in these cases. The District Court of Rhode Island cogently discussed several factors which it considered part of this burden in Women’s Medical Center of Providence, Inc. v. Roberts, supra, stating

Although a mere twenty-four hour delay by itself may not increase the risk of an abortion to a statistically significant degree, the record in this litigation shows that the mandatory wait may combine with other scheduling factors such as doctor availability, work commitments, or sick leave availability, to increase the actual waiting period to a week or more____ [I]t is uncontested that delays of a week or more do indeed increase the risk of abortion to a statistically significant degree____ Furthermore, a delay of even twenty-four hours may push a woman into the second trimester, thus requiring that the operation be performed in a hospital, and significantly increasing the procedure’s cost, inconvenience, and, of course, risk.

530 F.Supp. at 1146.¹

Courts have also noted that difficulties in scheduling may be complicated by the distance which a woman may have to travel in order to obtain an abortion. An extreme example of this was before the District Court of North Dakota in Leigh v. Olson, supra, in which the district court found that only one doctor in the entire state performed abortions and that women in certain parts of the state would have to drive some 400 miles in order to obtain an abortion. 497 F.Supp. at 1347. Finally, the cases cited above have noted that a waiting period may result in additional mental anguish for a significant number of women seeking abortions. See, e.g., Leigh v. Olson, 497 F.Supp. at 1347 n. 8 and accompanying text.

Because a waiting period places a direct and substantial burden on women who seek to obtain an abortion, the state is required to prove that the regulation is “narrowly drawn to further a compelling interest.” Charles v. Carey, 627 F.2d at 785. Accord Akron, 103 S.Ct. at 2495; Doe v. Bolton, 410 U.S. 179, 195, 93 S.Ct. 739, 749, 35 L.Ed.2d 201 (1974). Although it is not disputed that the state’s interest in promoting parental consultation with a minor who seeks to obtain an abortion is significant, this Circuit has held that the state’s interest is insufficient to impose a waiting period in light of the burden it places on the minor’s right to obtain an abortion. Pearson, 716 F.2d at 1143. Accord Wynn v. Carey, 599 F.2d at 196. Mere parental notification, however, pro-motes the state’s interest in parental consultation and is not unduly burdensome if it provides an exception to parental notification for mature minors and immature minors whose best interests require an abortion. Akron, 103 S.Ct. at 2497-98; Ashcroft, 103 S.Ct. at 2525; Pearson, 716 F.2d at 1132. Moreover, in Pearson we noted that “[Notification itself in most cases should lead to parental consultation without the state’s additional help because minors are particularly susceptible to parental wishes.” 716 F.2d at 1132. Thus, it appears that a mandatory waiting period is unconstitutional for two reasons; first, it imposes a far greater burden on a minor’s rights than a parental notification requirement which provides an exception to notification for mature minors and immature minors whose best interests require an abortion, and second, it does not significantly further the state’s interest in promoting parental consultation when combined with a notification requirement, which itself promotes that interest.

In view of the case law, the waiting requirement imposed by Section 4 of Illinois’ 1983 Parental Notice Abortion Act, standing alone, is unconstitutional. The state argues, however, that the waiting period is not mandatory, and hence, not unconstitutional, because of the provisions of Section 7 of the Act. Section 7 provides that the twenty-four hour waiting requirement imposed by Section 4 does not apply when the minor’s parents have been notified of the minor’s decision to obtain an abortion and both parents either accompany the minor to the place where the abortion is to be performed or “submit signed notarized statements indicating that they have been notified,” presumably to the doctor who is to perform the abortion. The question before this court, therefore, is whether the provisions of Section 7 remove the constitutional infirmity from the waiting period imposed by Section 4.

As noted above, one reason that a waiting period is unconstitutional is because of the undue burden which it places on a woman’s right to obtain an abortion. A proper initial question might then be whether the provisions of Section 7 alleviate in any way the burden imposed by Section 4. In order to avoid the strictures of Section 4, Section 7 requires a minor to coordinate the activities of both her parents to accompany her to an abortion clinic or to appear before a notary to sign a statement. These requirements, rather than alleviating the burden imposed by a waiting period, seem to increase it. The problems of scheduling, travel, and expense inherent in a waiting period will increase threefold if a minor’s parents are required to accompany her to the abortion clinic or to make arrangements to appear before a notary. Thus, the requirements of Section 7 are more likely to result in greater delay in obtaining an abortion after a minor has notified her parents than the twenty-four hour wait imposed by Section 4. Therefore, Section 7 does not alleviate the burden imposed by Section 4, but merely offers an alternative, and apparently greater, burden to that which the case law holds unconstitutional.

Moreover, Section 7 does not seem to cure the defects of a waiting period which this Circuit addressed in Pearson. In Pearson, we found that the Indiana statute’s waiting period was unconstitutionally “arbitrary and inflexible because it applies both to minors whose parents have been notified within the time period and object and those whose parents have already expressed approval for the abortion.” 716 F.2d at 1143. This same objection applies to Illinois’ statute. Section 7 does not provide an exception to the waiting period for a minor whose parents approve of her decision to have an abortion; it merely provides her with an opportunity to obtain an abortion within twenty-four hours after notifying her parent’s only if she complies with further requirements. As discussed above, it is unlikely that these requirements can be fulfilled within the twenty-four waiting period. Regardless, the imposition of further burdensome requirements once notice has been effected violates the plain command of Pearson that “the state cannot require that an abortion be delayed once notification has been effected upon a minor’s parents.” 716 F.2d at 1143. Accord Akron, 103 S.Ct. at 2503. Thus, even if a minor could fulfill the requirements of Section 7 after only a short delay, that section is unconstitutional.

In examining Section 7’s effect on the second constitutional infirmity of a waiting period, whether it sufficiently furthers the state’s interest in parental consultation in view of the parental notice requirement, it is evident that the provisions of Section 7 do not make a waiting period more efficacious in promoting parental consultation. The only apparent effect of Section 7 is to make it more difficult for a minor to obtain an abortion once she has notified her parents of her decision if she does not wish to submit to the burden of a twenty-four hour waiting period. Thus, it does not appear that Section 7 promotes any state interest other than perhaps the state’s interest in enforcing an unconstitutional waiting period under the guise that its statute provides “exceptions” to the waiting requirement.

In sum, Section 7 does not alleviate the burden on a minor’s right to have an abortion and it does not further the state’s interest in promoting parental consultation. Therefore, Section 7 does not remedy the constitutional infirmity of the waiting period imposed by Section 4.

III. The Judicial Alternative to Parental Notification

As the Supreme Court stated in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the relevant legal standards governing the adequacy of judicial alternatives to parental consent are not in dispute. 103 S.Ct. at 2497. A state’s interest in protecting immature minors is sufficient to require parental consent, but “the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently . mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interest.” Akron, 103 S.Ct. at 2497-98. See Planned Parenthood of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 2525, 76 L.Ed.2d 733 (1983); Bellotti v. Baird, 443 U.S. 622, 643-44, 99 S.Ct. 3035, 3048-49, 61 L.Ed.2d 797 (1979) (Bellotti II). This standard also governs provisions requiring parental notification. Bellotti II, 443 U.S. at 651, 99 S.Ct. at 3052; Pearson, 716 F.2d at 1132. Illinois’ Parental Notice Abortion Act does provide a judicial procedure for waiver of the parental notification requirement. The issue before this court is therefore whether the Illinois statute’s judicial alternative is constitutionally sufficient. See Ashcroft, 103 S.Ct. at 2525.

In Bellotti II, the Supreme Court held that the judicial alternative to parental notification “must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonyimity and sufficient expedition to provide an effective opportunity for an abortion to be performed.” 443 U.S. at 644, 99 S.Ct. at 3048. See Ashcroft, 103 S.Ct. at 2525 n. 16. Appellees do not contest the sufficiency of the procedures established in Section 5 for making the determination that a minor, is mature or that, if the court finds that she is immature, an abortion is nonetheless in her best interests. Section 5(e) provides that the court “shall issue written and specific factual findings and legal conclusions supporting its decision.” It is also uncontested that Section 5 provides that the hearing shall be held and a decision rendered with sufficient expediency. Section 5(c) provides that “in no case shall the court fail to rule within 48 hours of the time of application.” Rather, the dispute is whether Sections 5(f) and (g) sufficiently provide for an expedited appeal of the court’s decision.

Section 5(f) provides that “[a]n expedited confidential appeal shall be available as the Supreme Court provides by rule____” Section 5(g) further states that “[t]he Supreme Court is respectfully requested to promulgate any rules and regulations necessary to ensure that proceedings under this Act are handled in an expeditious and confidential manner.” Moreover, the state contends that expedited appeals are currently available to minors pursuant to Illinois Supreme Court Rules 303 and 311, and that therefore the judicial alternative to parental notification is adequate even if the Illinois Supreme Court feels “that additional rules are unnecessary at this time.” Appellant’s Br. at 25.

In Ashcroft, the United States Supreme Court upheld the Missouri parental consent statute’s provision providing for expeditious appeals, which provided that

The notice of intent to appeal shall be given within twenty-four hours from the date of issuance of the order. The record on appeal shall be perfected within five days from the filing of notice to appeal. Because time may be of the essence regarding the performance of the abortion, the supreme court of this state shall, by court rule, provide for expedited appellate review of cases appealed under this section.

Mo.Rev.Stat. § 188.028.2(6) (Supp.1982).

The Court held that “this section provides the framework for a constitutionally sufficient means of expediting judicial proceedings.” 103 S.Ct. at 2525 n. 16. Although the state supreme court had not promulgated any rules assuring expediency at the time the case was heard because the district court had enjoined enforcement of the statute immediately after it went into effect, the Court stated that it had “no reason to believe that Missouri will not expedite any appeal consistent with the mandate in our prior opinions.” Id.

The Illinois statute does not provide any regulation of appellate procedure, such as the twenty-four hour and five day limitations imposed by the Missouri statute. The Illinois Constitution, however, prohibits the state legislature from making specific rules governing appellate procedure. These rules may only be enacted by the Illinois Supreme Court. See III. Const, art. VI, § 16. Thus, the issue is whether Section 5’s general instructions to the Illinois Supreme Court to promulgate rules providing for the expeditious and confidential appeal of decisions under the Act provide “the framework for a constitutionally sufficient means of expediting” the appeal.

The Court’s language in Ashcroft that the Missouri statute’s provisions were sufficient because it had “no reason to believe that Missouri will not expedite any appeal consistent with the mandate in [the Supreme Court’s] prior opinions” indicates that the Court is willing to allow a state supreme court the opportunity to enact constitutional rules governing appeals before it will strike down the statute for failing to provide a judicial alternative to parental notification. Because of the Illinois legislature’s constitutional inability to prescribe such rules, this approach is logical in this case. This approach also appears to be consistent with this Circuit’s holding in Indiana Planned Parenthood v. Pearson, 716 F.2d 1127 (7th Cir.1983), which struck down an Indiana parental notification statute because, among other grounds, it did not “even mention appeals.” 716 F.2d at 1135. The Pearson court stated that if the statute had “at least directed the Indiana Supreme Court to promulgate rules governing expedited appeals, we would be satisfied.” 716 F.2d at 1136.

On the other hand, the Third Circuit, in addressing the constitutionality of the Pennsylvania Abortion Control Act, stated that “in light of the ... Act’s provision requiring the Supreme Court of Pennsylvania to promulgate rules assuring confidentiality and promptness of disposition, we cannot hold that the provision is constitutional.” American College of Obstetricians v. Thornburgh, 737 F.2d 283, 297 (3d Cir.1984). Citing Ashcroft, the Third Circuit stated that “[t]o pass constitutional muster, the alternative judicial procedure must be an established and practical avenue and may not rely solely on generally stated principles of availability, confidentiality, and form.” 737 F.2d at 297. Because the Pennsylvania Supreme Court had not yet enacted “any rules to fill the gaps of the ... statute,” the Third Circuit did not invalidate the provision, but enjoined its enforcement until the state court promulgated such rules. Id.

The Third Circuit’s concern that it could not rule on the constitutionality of the provision because it was, in essence, incomplete seems to be echoed in this Circuit’s decision in Pearson. The Pearson court’s concern with the Indiana statute was that in the absence of any rules governing appeal, “the only assurance we have that Indiana courts will expedite appeals is the state’s assertion that they will.” 716 F.2d at 1136-37. Similarly, the Illinois statute provides no rules for the filing or perfection of appeals, as did the Missouri statute addressed in Ashcroft, but more closely resembles the provision which the Third Circuit considered in Thornburgh.

Despite the complete absence of rules governing appeals in the Illinois statute, it appears that under Ashcroft the constitutionality of the judicial alternative provided for under Section 5 should not be determined until the Illinois Supreme Court has had an opportunity to promulgate rules governing appeals. It is difficult to see how the absence of such rules provides the framework for a constitutionally sufficient means of expediting the appeal which would require upholding the provision without any further action by the Illinois Supreme Court. It is also difficult to see how a mere request for such rules provides the necessary framework. Rather, the provision is incomplete until the Illinois Supreme Court has promulgated rules providing for an expedited appeal. Because time is of the essence in an abortion decision, H.L. v. Matheson, 450 U.S. 398, 412, 101 S.Ct. 1164, 1172, 67 L.Ed.2d 388 (1981), the absence of such rules is a fundamental defect in Section 5 and the statute should therefore be enjoined, as was done by the Third Circuit in Thornburgh, until such rules are enacted and the Act can be reviewed in its entirety. As a practical matter, enjoining enforcement of the Act will prevent the statute’s application to minors before adequate appellate recourse is available.

The state contends that the Act’s failure to provide rules governing appeal is irrelevant because the opportunity for an expedited appeal already exists under Illinois Supreme Court Rules 303 and 311. Rules 303(a)(4) provides that “[w]ithin five days after the filing of the notice of appeal ... the clerk of the circuit court shall transmit to the clerk of the court to which the appeal is being taken a copy of the notice of appeal.” The notice of appeal is then entered on the docket of the reviewing court upon receipt by that court’s clerk pursuant to Rule 303(f). Rule 311 provides that “the parties may agree to have their case placed on an accelerated docket ... and may provide for submission of an agreed statement of facts in lieu of a record, and memoranda in lieu of formal briefs.” The reviewing court “may then enter an order setting forth an expedited schedule for the disposition of the appeal.” 110A Ill.Rev.Stats. § 311 (1982).

The Illinois Supreme Court Rules which are already in effect differ in several respects from the provisions of the Missouri statute which the United States Supreme Court approved in Ashcroft. The Missouri statute stated that the record shall be completed and the appeal perfected within five days of filing the notice of appeal. Ashcroft, 103 S.Ct. at 2525 n. 16. Rule 303 merely provides that the notice of appeal shall be transferred to the reviewing court and docketed within that same time. The minor seeking an abortion must then place the case on an accelerated docket, and presumably petition the reviewing court for an expedited hearing pursuant to Rule 311. Moreover, the Missouri statute expressly commands the Missouri Supreme Court to provide for expedited appeals. Rule 311, however, does not require an expedited hearing, but merely gives the reviewing court discretion to grant such a hearing. The Pearson court considered such discretion as a factor in determining that the Indiana Rules of Appellate Procedure did not assure an expeditious hearing on appeal. 716 F.2d at 1136.

The Illinois Supreme Court Rules do not require that the appeal be heard as quickly as under the Missouri statute upheld in Ashcroft. This appears to be a crucial factor since time is of the essence. Moreover, the request for rules ensuring the expeditious disposition of appeals in Section 5(g) indicates that the legislature did not intend for the existing Illinois Supreme Court Rules to suffice for appeals under the Act. Contrary to appellant’s assertions, Section 5(g) indicates that the legislature did not believe that the existing rules are constitutionally sufficient. Further, the discretionary nature of Rule 311 does not assure that the appeal will be heard expeditiously. Although the Illinois Supreme Court Rules unquestionably give a minor seeking an abortion the opportunity to have an expeditious hearing, the United States Supreme Court’s holdings require that the rules governing appeals assure that such a hearing will occur. Ashcroft, 103 S.Ct. at 2525 n. 16; Bellotti II, 443 U.S. at 644, 99 S.Ct. at 3048. The existing Illinois Supreme Court Rules do not meet this standard.

The district court also ruled that the Illinois parental notification statute was unconstitutional because it failed to assure the anonymity of the minor at the waiver of notice hearing or on appeal. Before addressing this issue, however, both parties contest which language in Section 5(c) is properly before this court for review. Appellees contend that review of only the language of the section as it existed at the time suit was filed is proper. At the time suit was filed, Section 5(c) required only that the waiver proceeding “shall be confidential.” Subsequently, the Illinois legislature amended Section 5(c) to add the requirement that the waiver proceedings shall be conducted to “ensure the anonymity of the minor.” In view of the Supreme Court’s seemingly interchangeable use of the terms “confidentiality” and “anonymity,” which is discussed below, the difference between the section as enacted and as amended does not seem significant for the purposes of our review. Nonetheless, review of a statute as amended, when the amendment occurred after an injunction was entered prohibiting enforcement of the statute, was held proper in Bionic Auto Parts and Sales, Inc. v. Fahner, 721 F.2d 1072, 1076-77 (7th Cir.1983). Appellees cite Charles v. Daley, 749 F.2d 452 (7th Cir.1984), for the proposition that review must be limited to the language of Section 5(c) at the time suit was filed. In Charles v. Daley, however, the district court did consider amendments to provisions enacted after the statute was enjoined, 749 F.2d at 455, but refused to consider even later amendments which were the subject of a separate lawsuit. Id. Thus, it appears that consideration of Section 5(c) as amended is proper.

The proceedings at which a minor may prove her maturity or that, if immature, an abortion is in her best interests “must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity . . . . ” Bellotti II, 443 U.S. at 644, 99 S.Ct. at 3048. See Ashcroft, 103 S.Ct. at 2525 n. 16. This court has stated that confidentiality during and after this proceeding is essential to ensure that a minor will not be deterred from exercising her right to a hearing because of fear that her parents may be notified. Pearson, 716 F.2d at 1141. Accord Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977); Leigh v. Olson, 497 F.Supp. at 1349; Margaret S. v. Edwards, 488 F.Supp. at 204. This issue has most often arisen in the context of statutes which require parental notification in every case, regardless of the minor’s maturity or whether an abortion would be in her best interests. See, e.g., Bellotti II, 443 U.S. at 651, 99 S.Ct. at 3052; Danforth, 428 U.S. at 81, 96 S.Ct. at 2846; Pearson, 716 F.2d at 1141. The issue in this case, whether the statute’s provisions specifically provide for, and thus assure, anonymity during a waiver of notice hearing, has received little attention.

The Supreme Court addressed this issue directly in Ashcroft, but without elaboration. The Missouri statute before the Court in Ashcroft provided that the minor may use her initials on the petition requesting waiver of consent. The Court held that this provision was sufficient to assure confidentiality, thus meeting the standard enunciated in Bellotti II. Ashcroft, 103 S.Ct. at 2525 n. 16. The Court appeared to use the terms “anonymity” and “confidentiality” interchangeably. Id.

Similarly, in Bellotti II the Massachusetts Supreme Court, upon certification of the issue from the district court, approved of the provisions of the Massachusetts statute regarding confidentiality, stating that “[t]he proceeding need not be brought in the minor’s name, and steps may be taken, by impoundment or otherwise, to preserve confidentiality as to the minor and her parents.” Baird v. Attorney General, 371 Mass. 741, 757-58, 360 N.E.2d 288, 298 (1977). After citing to this language upon review, the United States Supreme Court stated that these safeguards “avoid much of what was objectionable in the statute successfully challenged in Danforth,” Bellotti II, 443 U.S. at 645, 99 S.Ct. at 3049, but the Court nonetheless struck down the Massachusetts statute because it required parental notification in every case. Id. at 651, 99 S.Ct. at 3052. Although the Massachusetts Supreme Court’s assurance that the proceeding would be confidential was challenged on appeal, no evidence was presented as to the operation of the proceedings because the statute was enjoined prior to enforcement, and therefore the Court assumed that the Massachusetts Supreme Court’s judgment was correct. Id. at 645 n. 25, 99 S.Ct. at 3049 n. 25.

The Third Circuit applied the Supreme Court’s holdings in Ashcroft and Bellotti II to a provision in Pennsylvania’s parental consent statute which required the state supreme court “to promulgate rules assuring confidentiality.” American College of Obstetricians v. Thornburgh, 737 F.2d 283, 297 (3d Cir.1984). The Third Circuit’s criticism of the Pennsylvania statute’s lack of specificity in providing for the expeditious disposition of the waiver of notification hearing was also directed at the statute's failure to enact specific rules assuring confidentiality. As stated above, the Third Circuit enjoined enforcement of the statute until the state supreme court enacted rules “to fill in the gaps” of the statute because the mere command to promulgate rules fell short of the “detailed provisions assuring confidentiality” contained in the Missouri statute upheld in Ashcroft. Thornburgh, 737 F.2d at 297.

In addressing Illinois’ parental notification statute, the district court did not consider the amended version of Section 5(c), but found the difference between “confidentiality” and “anonymity” to be “somewhat fine.” 584 F.Supp. at 1461. Rather than focusing on this semantic distinction, the district court held that the Act did not assure a minor’s anonymity because of the “merely precatory language requesting the Illinois Supreme Court to provide rules relating thereto.” Id. at 1461-62. Despite appellee’s contentions that confidentiality is not the equivalent of anonymity, this reasoning appears to be proper in view of the interchangeable use of the two terms in the cases discussed above. The real focus of the issue, then, is whether the Illinois statute assures a minor’s anonymity during the course of the waiver proceedings with sufficient specificity.

Like the Pennsylvania statute considered in Thornburgh, the Illinois statute does not set forth specific rules to assure confidentiality. Section 5(c), as amended, states that the waiver of parental notification proceedings “shall be confidential and shall ensure the anonymity of the minor or incompetent.” (amended portion italicized). Section 5(f) provides that “[a]n expedited confidential appeal shall be available, as the Supreme Court provides by rule____” Finally, Section 5(g) requests the Illinois Supreme Court to promulgate any rules necessary to ensure that proceedings under the Act are confidential.

Unlike the statute upheld by the Supreme Court in Ashcroft, the Illinois statute does not make any specific provisions to assure the minor’s anonymity at the waiver hearing. Further, the statute does not address particular problems concerning anonymity which exist not only during the course of the proceedings, but afterwords because of the availability of court documents and files, which are generally available to the public. See, e.g., Whalen v. Roe, 429 U.S. at 599-600, 97 S.Ct. at 876-877. Thus, the Illinois statute appears to fall short of the standard set forth in Ashcroft and Bellotti II which requires the statute to assure confidentiality. As stated above, however, the Illinois legislature is prohibited by the state constitution from prescribing appellate procedure, and its power is therefore limited to Section 5(g)’s instruction to the Illinois Supreme Court to promulgate rules regarding appellate procedure. Further, although the statute merely requests the Illinois Supreme Court to promulgate rules assuring that the initial waiver proceeding will be confidential, the United States Supreme Court and the Third Circuit have both expressed a willingness to allow the state supreme court to promulgate constitutional rules before striking down the statute. Ashcroft, 103 S.Ct. at 2525 n. 16; Thornburgh, 737 F.2d at 297. Therefore, as in Thornburgh, the proper course of action would appear to be to enjoin enforcement of the statute until the Illinois Supreme Court promulgates rules assuring confidentiality. This would comport with the Illinois legislature’s expressed intention that such rules be promulgated and would allow a complete review of the statute to determine its constitutionality.

IV. The “Other Considerations” Discussed by the District Court

At the end of his opinion the trial judge addressed several issues under the heading “Other Considerations.” The trial judge stated that these issues, “though not raised explicitly by the parties, merit discussion ....” 584 F.Supp. at 1465-66. He then discussed what he viewed as the particular problems of the Illinois statute’s provisions which impose criminal liability for recklessly violating the Act, provide for punitive damages in “an appropriate” civil suit brought for violation of the Act, and fail to provide for constructive notice should a minor be unable to notify her parents or someone standing in loco parentis. These issues were not litigated by the parties and the district court’s discourse regarding these issues did not reach any holdings of law. In short, these issues were not part of the district court’s decision.

It is well-settled that a ground for reversal cannot be presented for the first time on appeal. International Travelers Cheque Co. v. Bankamerica Corp., 660 F.2d 215, 225 (7th Cir.1981); Textile Banking Co. v. Rentschler, 657 F.2d 844, 853 (7th Cir.1981); Stern v. United States Gypsum Co., 547 F.2d 1329, 1333-34 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Narrow exceptions to this rule exist when a jurisdictional question is raised or in “exceptional circumstances where justice demands more flexibility.” Id. This rule applies where the issue was not raised by the parties below in the pleadings or in argument. United States v. Miroff 353 F.2d 481, 483-84 (7th Cir.1965); Beckman Instruments, Inc. v. Coleman Instruments, Inc., 338 F.2d 573, 576-77 (7th Cir.1964). Even if the issue is contained in a pleading, the rule may apply if the issue was not argued at trial. King v. Stevenson, 445 F.2d 565, 570-71 (7th Cir.1971).

In the case at bar the record indicates that the “Other Considerations” discussed by the district court were not argued at trial and were not the basis of the district court’s decision declaring the Illinois statute unconstitutional. Moreover, the district court did not make any holding regarding these issues, but merely stated that it was troubled by problems which might arise under the provisions in question. In fact, appellees admit that in addressing these issues the district court merely “expressed its opinion.” Appellee’s Br. at 4. Under these circumstances, the general rule stated above applies. The issue is then whether any exceptional circumstances exist “where justice demands more flexibility.” We have been unable to find any cases where such circumstances exist. In view of this fact it appears that this exception truly is narrow. Further, the circumstances of this case do not appear to demand more flexibility. Therefore, the general rule should be applied in this case, and we will not address any of the issues not argued at trial.

V. Severability

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 the legislature would have enacted the constitutional provisions of the statute independently of those provisions. 103 S.Ct. at 2774 (citing Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976)). Illinois law contains a general severability provision which applies to any legislation promulgated after its effective date. 1 Ill.Rev.Stat. § 1032 (1981). This provision applies to any provisions which can be given effect without the invalid provisions. Further, the Illinois legislature amended the Parental Notice Abortion Act to include a similar severability clause. P.A. 83-1128, § 8.1 (June 30, 1984). It thus appears that the Illinois legislature intended the constitutional provisions of the Act to go into effect without the unconstitutional provisions.

Similarly, severance is improper if the unconstitutional provision is “an integral part of the statutory enactment viewed in its entirety.” Scheinberg v. Smith, 659 F.2d 476, 481 (5th Cir.1981). It appears that the provisions of the Act relating to the twenty-four hour waiting period may be severed without affecting the essential purposes of the Act. As discussed above, this provision does not appear to significantly further the state’s interest in promoting parental consultation. Severance would require eliminating the words “at least 24 hours” from the provision of Section 4(a) which currently states

“No person shall perform an abortion upon an unemancipated minor or upon an incompetent unless he or his agent has given at least 24 hours actual notice to both parents ____” (severable portion italicized.)

This omission would not effect the notice requirement, which promotes parental consultation. Severance would also require eliminating paragraph (a) of Section 7. Paragraph (a) contains the two “exceptions” to the twenty-four hour waiting period. Because it relates solely to the waiting period, its omission would not affect any other provisions of the Act. Thus, it appears that these omissions would remove the constitutional infirmity of the statute without hindering the state’s goal of promoting parental consultation through the Act. Severance is therefore proper.

VI. Conclusion

The twenty-four hour waiting period imposed by Section 4(a) is unconstitutional, but may be severed from the Act, thereby removing the constitutional infirmity of that provision from the statute without affecting the essential purpose of the Act. We therefore sever the Act’s provisions relating to the waiting period. The resulting severance will leave the affected sections of the statute to read as follows:

Section 4. Notice required. No person shall perform an abortion upon an unemancipated minor or upon an incompetent unless he or his agent has given actual notice to both parents____

******

Section 7. Other exceptions, (a) [Eliminated in its entirety.]

(b) Notwithstanding any other provision ....

We also vacate the district court’s holding that the Act is unconstitutional. Enforcement of the statute is enjoined, however, until the Illinois Supreme Court enacts rules assuring the expeditious and confidential disposition of the judicial hearings which allow a mature minor or an immature minor whose best interests require an abortion to forego the state’s notice requirement. We remand the case to the district court for a determination of the constitutionality of the waiver of notice proceedings when such rules are enacted.

1 . In Illinois a second trimester abortion also must be performed in a hospital on an inpatient basis. See 38 Ill.Rev.Stats. ¶ 81-24 § 4 (1983).