|
Lenora M. Lapidus, Esq. Jennifer Dalven, Esq.
Attorneys for Plaintiffs
Planned Parenthood of Central New Jersey et al., John Farmer et al., Superior Court of New Jersey Law Division Bergen County Docket No. ___ Civil Action Brief in Support of Plaintiffs' Motion For Temporary and Preliminary Restrains
Plaintiffs 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. ("Plaintiffs"), representing themselves and their patients who are unemancipated women under the age of eighteen seeking abortions, request that the Court issue an order temporarily and preliminarily restraining Defendants John Farmer, Attorney General of the State of New Jersey, Christine Grant, Commissioner of the Department of Health and Senior Services of the State of New Jersey, and Hon. Richard S. Williams, Director of the Administrative Office of the Courts of the State of New Jersey ("Defendants") from enforcing Chapter 145 of Public Law 1999, the Parental Notification for Abortion Act. As shown below and in the supporting certifications and exhibits, this law infringes on the rights of young women as protected by the New Jersey Constitution.1 Moreover, enforcement of this law will cause immediate and irreparable harm to Plaintiffs, while issuance of injunctive relief will serve to preserve the status quo in effect for more than twenty years. PRELIMINARY STATEMENT The Parental Notification for Abortion Act ("the Act"), scheduled to go into effect on September 26, 1999, restricts minors' access to abortion by requiring that a minor's parent be notified or that the minor obtain a judicial waiver of this requirement before the minor may have an abortion. As such, the Act will fundamentally alter the way safe and appropriate medical care has been provided in this state for over two decades and will do so to the detriment of minors in this state. Today in New Jersey, as has been the case for over twenty years, a pregnant minor may obtain any hospital, medical, and surgical care related to her pregnancy without notifying a parent. She may choose to carry her pregnancy to term and parent her child, to bear a child and place it for adoption, or to terminate her pregnancy without notifying a parent. Despite the legal authority to consent on their own, most minors involve their parents in their decisions relating to their pregnancies. For those who cannot, however -- because, for example, a parent is abusive, is critically ill, or would likely obstruct their choice -- the law currently permits them to obtain the care they need without notifying a parent. If permitted to take effect, however, the Act will change this. The Act will force all minors who choose abortion -- but not those who choose to carry to term -- to notify a parent or go to court. The Act will impose this requirement on all young women without regard to their personal or family circumstances. The Act will thus force a young woman seeking an abortion to notify a parent even if her parents are staunchly opposed to abortion; even if a parent is facing a terminal illness; and even if her parents have threatened her with violence should she become pregnant. In so doing, the Act will cause immediate and irreparable harm to teenagers in New Jersey. Some teens, when their parents are notified against these young women's better judgment, will suffer. Some will be prevented from obtaining abortions and forced to carry their pregnancies to term against their will; some will be beaten; and others will be thrown out of the house. The alternative of seeking a court order will not protect these young women because the process itself will compromise the teen's confidentiality, exposing her to the very harms of notification she seeks to avoid. Moreover, whether a teen chooses to notify a parent or go to court, her abortion will be delayed, which will increase the health risks associated with the procedure and make it more difficult, if not impossible, to obtain. Finally, some young women, desperate to avoid notifying a parent or going to court, will resort to drastic measures such as self-induced or illegal abortions. Indeed, in recognition of these harms, numerous professional medical organizations, including the American Academy of Pediatrics, the American Medical Association, the Society for Adolescent Medicine, the American Public Health Association, and the American College of Obstetricians and Gynecologists, publicly oppose laws, like the Act, that mandate parental involvement in minors' decisions regarding abortion. The State can show no need -- medical, familial or other -- to impose these harms on young women in this state. Indeed, the lack of justification for the Act is readily apparent given the wide range of other important, potentially life-altering decisions the law allows minors in this state to make without notifying a parent. For example, the law will continue to recognize minors as able to choose to continue their pregnancies and bear children without notifying a parent or going to court -- despite the much more significant health risks associated with pregnancy and childbirth than with abortion. In addition, the law will continue to allow minors to consent to all of their own medical care relating to their pregnancy -- including major surgery such as a cesarean section -- without consulting a parent. And, once a minor has a child, New Jersey law will continue to permit her to make all medical decisions -- including life and death decisions -- for that child without notifying a parent. Only when a minor chooses abortion, will the law, by virtue of the Act, suddenly deem her incapable of making the decision on her own. Indeed, the Act singles out, from among all pregnant minors, those who choose abortion and places on them alone its burdensome restrictions. The New Jersey Constitution does not tolerate such discrimination against young women seeking abortions nor the imposition of such harms upon them. As to this, the precedent of the New Jersey Supreme Court leaves no doubt. The high court has already declared that our state Constitution protects the right of reproductive choice; that it protects this right more broadly than and independent of the federal Constitution; and that its constitutional guarantees prevent the state from discriminating against women seeking abortions in favor of women who choose to carry their pregnancies to term. Under the clear precedent of the New Jersey Supreme Court, the Act violates the constitutional guarantees of privacy and equal protection. The Act must accordingly be enjoined.
Currently, as it has for over two decades, the law of this state expressly permits all 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. ' 9:17A-1.2 The Act (attached as Exhibit A to the Verified Complaint) 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 medical care. Specifically, the Act prohibits the performance of an abortion on a minor until at least forty-eight hours after written notice of the procedure has been provided to a parent.3 Act ' 5(a). The notice must either be delivered personally to a parent by the physician or sent by certified mail, return receipt requested and delivery restricted to the parent, and simultaneously by first class mail, to the parent's last known address. Act ' 5(b)-(c). If the notice is mailed, the forty-eight-hour waiting period begins at noon on the next day that regular mail delivery takes place, following the day on which the mailing is posted. Act ' 5(c). The notice requirement may also be satisfied if a parent provides a notarized statement attesting to having received notice. Act ' 6. The Act provides only two exceptions to its notice requirement. First, a minor need not notify a parent in those limited circumstances where the attending physician can certify that the abortion is necessary due to a medical emergency.4 Act ' 7. In all other circumstances, a minor may only be relieved of the parental notification requirement by obtaining a court order authorizing her to have the abortion without involving a parent. Act ' 8. To obtain a judicial bypass of the parental notification requirement, a minor must file a petition or motion before a judge of the superior court. Act ' 8(a). To Plaintiffs' knowledge, no court rules have been issued to date regarding how a minor would file such a petition, what forms are to be used, or providing any other instructions for minors seeking a bypass. The Act requires the superior court to advise the minor that she has a right to court-appointed counsel. Act ' 8(b). The Act does not state, however, when such counsel must be appointed. The Act does not guarantee, for example, that the young woman will be able to obtain the assistance of counsel prior to filing the petition, or even enough in advance of any hearing or other proceeding so that she actually obtains effective assistance of counsel. Nor does the Act provide any compensation for attorneys representing minors in bypass proceedings. Although the Act provides that "[p]roceedings in the [superior] court . . . shall be confidential and insure the anonymity of the minor," Act ' 8(c), the Act does not contain any specific provisions explaining how the minor's confidentiality is to be guaranteed. Nor does the Act specify that the records kept in connection with the minor's petition shall be confidential. See R. 1:38 (deeming all court documents public records to be open for public inspection and copying unless a statute, rule, or court order specifically requires otherwise). At the hearing, the minor 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 ' 8(d)(1)-(3). Where the minor makes such a showing, the Act requires that the judge authorize a waiver of notification. Id. If the judge finds that there has been a pattern of physical, sexual, or emotional abuse by the minor's parent, guardian or legal custodian, the Act requires the judge to report the abuse to the Division of Youth and Family Services ("DYFS"). Act ' 8(d)(2). DYFS, in turn, must investigate the complaint and inform the minor's parent both that a report has been made and the nature of the allegations. See N.J. Admin. Code tit. 10, '' 10:129A-2.1, 10:129A-3.1. Unless the minor requests an extension, the superior court must rule on the petition within forty-eight hours of filing, or the petition is deemed granted. Act ' 8(c). If an extension is requested, however, the Act fails to provide any deadline by which the superior court must rule. The Act furthermore fails to provide any mechanism by which a minor may establish to a physician that her court petition has been "deemed granted.@ If the judge denies the petition, the Act provides that notice of the planned abortion "shall" issue. Act ' 8(e). There is no exception to this directive for circumstances in which the minor decides to appeal the denial. Nor is there any exception to the notice requirement for minors who, after having been denied a bypass, determine that they no longer wish to pursue an abortion in New Jersey. The Act states that an "expedited confidential appeal shall be available," but includes no specific mandates to ensure confidentiality or expedition. Act ' 8(f). It includes no directive that the records shall be sealed nor even a requirement that the proceedings be kept confidential. The Act does not specify any time by which the record must be transmitted to the appellate court, by which argument shall be heard, or by which the court must decide the appeal. Nor does the Act provide for disposition of the appeal in the event that it is not promptly addressed. 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 ' 11. ARGUMENT Injunctive relief is appropriate under the law of this state to "prevent some threatening, irreparable mischief, which should be averted until opportunity is afforded for a full and deliberate investigation of the case." Crowe v. De Gioia, 90 N.J. 126, 132, 447 A.2d 173, 176 (1982) (quoting Thompson v. Paterson, 9 N.J. Eq. 624, 625 (E. & A. 1854)). The New Jersey Supreme Court has made clear that injunctive relief should issue when: (1) the injunction is necessary to prevent irreparable harm; (2) the plaintiff has made a preliminary showing of a reasonable probability of ultimate success on the merits; and (3) the relative hardships to the parties favor the granting of temporary relief to maintain the status quo pending the outcome of a final hearing. Crowe, 90 N.J. at 132-34, 447 A.2d at 176-77. In addition, courts are empowered to issue a preliminary injunction "upon consideration of justice, equity, and morality in a given case." Zoning Bd. of Adjustment v. Service Elec. Cable Television, 198 N.J. Super. 370, 379, 487 A.2d 331, 336 (App. Div. 1985); Poff v. Caro, 228 N.J. Super. 370, 375, 549 A.2d 900, 902 (Law Div. 1987). For the reasons set forth below, Plaintiffs readily satisfy this standard. Given the irreparable harm that minors will suffer unless the Act is enjoined, and given Plaintiffs' likelihood of success under the governing precedent of the New Jersey Supreme Court, this Court should preserve the status quo by granting Plaintiffs' request for temporary and preliminary restraints, pending the outcome of a final hearing. I.IF INJUNCTIVE RELIEF IS DENIED, NEW JERSEY MINORS WILL SUFFER IRREPARABLE HARM. Currently, as they have for over two decades, teens, in consultation with their health care providers, make the ultimate decision of whether it is wise to involve a parent in their decision whether to continue a pregnancy to term. The Act will change this long-standing practice by forcing all minors, regardless of their family circumstances, to notify a parent or go to court before they can access safe abortion services. In so doing, the Act will irreparably harm teens throughout the state. Some minors will be abused. Others will be forced out of their homes. Still others will be forced to carry their pregnancies to term. Johnson Cert. § 24, 33; Kinsler Cert. § 14-15, 17; Henshaw Cert. § 16-17, 28; Sabino Cert. § 30, 42; Esquilin Cert. § 8, 14-16, 19. Others will take extreme measures to avoid parental notification, including forgoing a safe and legal abortion for an illegal procedure, attempting to self-induce an abortion, incurring the expense and delay of traveling out of state for an abortion, or abandoning all hope of obtaining an abortion and carrying an unwanted pregnancy to term. Henshaw Cert. § 18-19, 28; Kinsler Cert. § 16-17; Johnson Cert. & 33; Sabino Cert. § 32, 35; Holmes Cert. & 17; Tumberello Cert. § 23, 26; Esquilin Cert. & 8. The Act=s judicial bypass is simply inadequate to prevent these harms, and indeed causes further damage. At every step of the judicial bypass process, minors= confidentiality will be at risk, such that many parents will discover their daughters= pregnancy and planned abortion as a direct result of the minors= efforts to seek a waiver of the parental notice requirement. Sabino Cert. § 20-26, 28-29; Johnson Cert. § 26-29; Martin Cert. § 8-9; Kinsler Cert. & 19; Esquilin Cert. & 24. In addition, the bypass process will also impose tremendous and unnecessary strain on these young women at an already difficult time of their lives. Sabino Cert. & 31; Martin Cert. & 13; Kinsler Cert. & 18. Moreover, both the parental notification requirement and the operation of the judicial bypass will cause further harm by forcing many young women to delay their abortions, thereby rendering the procedure riskier, more costly, and more difficult to obtain. Henshaw Cert. § 19-20, 23; Weiss Cert. § 35-36, 39; Kinsler Cert. § 20-22; Tumberello Cert. § 26-29; Sabino Cert. § 18, 21-24; Esquilin Cert. & 28. In addition, because some abortions will be delayed beyond the point at which the procedure is practicable, and because some parents who discover their daughter=s pregnancy will prevent her from obtaining an abortion, the Act will ultimately force some minors to carry an unwanted pregnancy to term. Kinsler Cert. § 17, 22; Johnson Cert. § 24, 31-33; Henshaw Cert. § 19, 23, 28; Sabino Cert. & 42; Tumberello Cert. & 29; Weiss Cert. & 39. For those minors, the Act effectively nullifies the fundamental constitutional right to reproductive choice.
In the absence of a law mandating parental notification, the majority of minors in New Jersey involve a parent in their decision to have an abortion. Henshaw Cert. & 13; Zabin Cert. § 17, 21; Kinsler Cert. & 26; Johnson Cert. & 9; Tumberello Cert. & 8. The younger a teenager is, the more likely she is to notify her parents. Henshaw Cert. & 13; Zabin Cert. & 18; Tumberello Cert. & 8; Kinsler Cert. § 8, 26; Holmes Cert. & 3. Indeed, very few of the youngest minors have abortions without involving at least one parent. Henshaw Cert. & 13. And the majority of teens who do not turn to a parent consult at least one other adult before deciding to have an abortion. Henshaw Cert. & 14; Adler Cert. & 36; Johnson Cert. & 15; Kinsler Cert. & 26. When appropriate, health care providers in this state encourage their teenage patients to involve their parents in their decision. Kinsler Cert. & 8; Johnson Cert. § 9-10. For over two decades, teens, with and without their parents= involvement, have made thoughtful choices to terminate their pregnancies and have provided informed consent for the procedure. Kinsler Cert. § 27-28; Tumberello Cert. § 16, 18; Holmes Cert. & 10; Johnson Cert. & 22; Weiss Cert. & 32. And, consistent with existing New Jersey law, physicians will not provide an abortion for any minor who comes in alone unless the minor is capable of making an informed decision. Kinsler Cert. & 27; Johnson Cert. & 22; Tumberello Cert. & 17; Holmes Cert. & 9; Weiss Cert. & 32. The Act will cause irreparable harm by forcing many young women in New Jersey to involve a parent in their abortion decision despite their considered judgment that doing so would be unwise and possibly unsafe. Although the majority of minors do involve a parent in their decision to undergo an abortion, many young women, acting for compelling reasons, elect not to do so. Kinsler Cert. § 9-15; Johnson Cert. § 11-14; Sabino Cert. § 11-16; Henshaw Cert. & 15; Tumberello Cert. & 24; Esquilin Cert. § 14-19. Some young women do not involve a parent because they fear that disclosure of their sexual activity and pregnancy will lead to abuse. Esquilin Cert. § 15-16; Henshaw Cert. & 15; Johnson Cert. & 14; Tumberello Cert. & 24; Sabino Cert. & 12; Weiss Cert. & 35. Many of these adolescents have already suffered abuse at the hands of a parent. Esquilin Cert. § 15-16, 18; Henshaw Cert. & 17; see also Sabino Cert. & 12. These minors often decline to involve a parent because they know that stressful situations and situations involving the issue of their sexuality -- of which pregnancy and a planned abortion are prime examples -- are likely to trigger beatings or emotional assaults. Esquilin Cert. & 15; Sabino Cert. & 12. Other young women have been threatened by their parents with a variety of severe repercussions -- such as being beaten, being thrown out of the house, or having all financial support cut off -- if they were ever to become pregnant. Sabino Cert. & 12; Kinsler Cert. § 10-11, 14-15; Johnson Cert. § 12-14; Henshaw Cert. & 15; Weiss Cert. & 35; Holmes Cert. & 15. For example, one young woman who sought an abortion at a clinic in New Jersey, explained that her father, who was a minister and strongly opposed to premarital sex and abortion, had threatened to throw her out of the house if she ever became pregnant. Kinsler Cert. & 11. Teens often have good reason to take these threats seriously. Some have witnessed a sister being thrown out of the house or otherwise ostracized from the family when her pregnancy was discovered. Kinsler Cert. & 10; Sabino Cert. & 12. Some are just so desperate that they cannot afford to take the risk. For example, one teenage patient had been shuttled around from place to place, 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 that friend=s male companion. 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. Johnson Cert. & 12. Still other minors know that their parents have very strong views against abortion and would therefore prevent them from obtaining an abortion or even accessing the bypass if they learned of the pregnancy. Kinsler Cert. & 11; Sabino Cert. & 13; Henshaw Cert. & 15; Johnson Cert. & 14; Tumberello Cert. & 24. For example, one young woman in Massachusetts, a state with a mandatory parental involvement law, refused to involve her parents because they had forced her to carry her previous pregnancy to term against her will, and she was determined not to let that happen again. Sabino Cert. & 13. Some teens refuse to burden parents who are already in a state of distress. Sabino Cert. & 11 (explaining that among teens who have sought a judicial waiver of Massachusetts= parental involvement requirement are a young woman whose brother had committed suicide two weeks earlier; one whose mother had recently been diagnosed with a brain tumor; another whose father had just lost his job; and another whose father had been brutally murdered a few weeks before); see also Henshaw Cert. & 15; Sabino Cert. & 11; Kinsler Cert. & 12; Tumberello Cert. & 24; Johnson Cert. & 11. For example, one young woman chose not to involve her mother in her abortion decision, fearing that her mother, who was overwrought by the recent death of her son, would not be able to cope with the additional stress caused by news of her pregnancy. Johnson Cert. & 11. Other patients choose not to tell their parents because their parents are facing other life crises -- the parents are going through a divorce, a sibling has been put in jail, or a family member has a serious illness. Kinsler Cert. & 12; Johnson Cert. & 11; Tumberello Cert. & 24; Sabino Cert. & 11. Some daughters choose not to involve a parent because their mothers are undergoing treatment for, or in some cases dying from, breast cancer. Kinsler Cert. & 12; see also Tumberello Cert. & 24. Still other minors decline to involve a parent in their decision to undergo an abortion 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, not the parent, often 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 for them. Kinsler Cert. & 13; Sabino Cert. § 14-15; Tumberello Cert. & 24. Finally, some minors do not want to involve a parent because they fear that the news will inevitably cause strife between the two parents. Henshaw Cert. & 15. 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 whose parents found out about their pregnancy without being voluntarily told by the minor reported adverse consequences. Henshaw Cert. & 16 (citing Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors= Abortion Decisions, 24 Fam. Plan. Persp. 196, 204 & Table 7 (1992) (attached to Henshaw Cert. as Exhibit B)). 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. Health care providers confirm that minors are often accurate in their assessment of their parents, and are almost surely better judges of their parents= reactions than those with no knowledge of the home. Kinsler Cert. & 15; see also Sabino Cert. § 30, 34. One New Jersey clinic director, for example, recounts the experience of a school counselor who learned this lesson the hard way. A student confided in him 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. Believing, perhaps, that parents will always be supportive of their children in times of crisis, the counselor notified the parents anyway. Unfortunately, the student was right: her parents did not understand, and, indeed, threw her out of the house. Kinsler Cert. & 15. Whether well founded or not, the fear of adverse consequences will drive some minors to take extreme and dangerous measures to avoid parental knowledge of their pregnancies and their decisions to obtain an abortion. Henshaw Cert. & 18; Kinsler Cert. & 16; Sabino Cert. § 9, 32, 35; Holmes Cert. & 17. In one study, twenty-three percent of minors said that if parental notification were required, they would forgo a safe and legal abortion. Henshaw Cert. & 18 (citing Aida Torres et al., Telling Parents: Clinic Policies and Adolescents= Use of Family Planning and Abortion Services, 12 Fam. Plan. Persp. 284, 288 (1980) (attached to Henshaw Cert. as Exhibit C)). 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 confidentiality by trying to arrange for an abortion in a state that does not require parental involvement. See, e.g., Esquilin Cert. § 8; Kinsler Cert. 16-17; Sabino Cert. 9, 32, 35; Tumberello Cert. § 23; Holmes Cert. § 17. Indeed, one New Jersey health care provider tells the chilling story of a sixteen-year-old who was desperate to end her pregnancy without her parents' knowledge. Without access to a clinic, she had her boyfriend punch her in the stomach to induce a miscarriage. When she called a crisis hotline, she was hemorrhaging. Despite being told that she could die if she did not get help, and despite the blood loss, she would not go to the hospital unless she was promised that her parents would not be notified. It took almost two hours to convince her to go to the hospital. For that young woman, death was less frightening than having her parents learn of her pregnancy. Kinsler Cert. § 16. Indeed, for reasons like these, the American Medical Association reports that the desire to maintain secrecy about abortion has been one of the leading reasons for illegal abortion deaths since 1973. Henshaw Cert. § 18 (citing Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 83 (1993) (attached to Henshaw Cert. as Exhibit D)). Even those minors who do allow their parents to be notified and who do not suffer at the hands of their parents will be harmed by the Act. For many of these teens the time it will take to work up the courage to notify a parent will substantially delay their abortions. As explained in Part I.C., infra, this delay will increase the risks of the procedure and put it out of reach entirely for some young women.
The judicial bypass fails to provide an adequate safeguard for those minors who cannot notify a parent, and will itself cause further harm. As an initial matter, some minors who desire an abortion will be too frightened by the prospect of going to court to think of it as a viable option. Sabino Cert. § 34; Kinsler Cert. § 18; Tumberello Cert. § 25; Esquilin Cert. § 23. This reality can have tragic consequences. One young teenager in Massachusetts, for example, who became pregnant after being raped by her mother's boyfriend, felt that she could not turn to her mother. Sabino Cert. § 34. Upon learning that in order to have an abortion she would have to either tell her mother or get a court order, however, she decided that she simply could not face a judge and instead told her mother. Id. After hearing what had happened, the teen's mother called her a "slut" and threw her out of the house. Id. Many minors who are abused by a parent -- and who therefore often have the most to fear from parental notification and are the most in need of a judicial waiver -- will be particularly reluctant to go to court to seek a bypass. Because of the secrecy that shrouds abuse, they will avoid going to court rather than risk revealing the abuse, particularly when they learn that the Act requires reporting of abuse to DYFS. See Esquilin Cert. 25, 27. Some minors will gather the courage to file a bypass petition. The judicial bypass process itself, however, will compromise their confidentiality in myriad ways. Indeed, it will pose the greatest threat to those who need it the most. First, in order to pursue a bypass, a young woman will have to make a series of phone calls to learn about the bypass and to coordinate with whomever might help her. See, e.g., Sabino Cert. § 20; Johnson Cert. § 26; Kinsler Cert. § 21. For minors who need to keep their pregnancies from their parents, making even a single call poses a threat to their confidentiality. They have to await a time when their parents are away and often hang up abruptly when their parents return earlier than expected. Typically, their problems are compounded, because they cannot receive return calls because calls into the home from strangers arouse suspicion and questions. Sabino Cert. 21, 28; Johnson Cert. § 26; Kinsler Cert. § 21; Esquilin Cert. § 24. Unable to make or receive confidential phone calls at home, many minors are forced to call from friends' homes or to use pay phones in the school hallway, with little or no privacy, and with only minutes to speak between classes. Sabino Cert. 21, 28; see also Johnson Cert. § 26. At every step, they risk detection. The need to travel to and from the courthouse to attend the hearing will further compromise the minors' confidentiality. Courts are generally open only on weekdays, when minors are required to be in school and when their absences are most likely to be noticed, if not reported. Sabino Cert. 22, 28; Johnson Cert. 27-28; Martin Cert. § 8. In Massachusetts, for example, upon learning of one minor's intended absence to attend a bypass hearing, a school principal removed the student from class, drove her home, and informed her mother of both her pregnancy and her desire for an abortion. Sabino Cert. § 28. At the insistence of her mother, that young woman carried her pregnancy to term. Id. Even those minors who get to court undetected face threats to their confidentiality. Martin Cert. § 9; Sabino Cert. § 29; see also Kinsler Cert. § 19. Those who go to court in their hometown for example, risk being spotted at the courthouse by someone they know. Because they cannot explain their presence in the courthouse, particularly during school hours, once they are seen, their secret is exposed. Sabino Cert. 23, 29; see also, e.g., Kinsler Cert. § 19; Martin Cert. § 9. In Massachusetts, for example, one young woman was sitting in a court corridor when her sister's civics class came through; another saw a neighbor in the courthouse; a third encountered her godmother, who was employed as a court officer. Sabino Cert. § 29. In Minnesota, a young woman was identified by members of an anti-abortion group as she sat in the courthouse corridor waiting for her bypass hearing. They searched high-school yearbooks until they found her name and then sent a letter to her parents informing them of the hearing. Martin Cert. § 9. Merely arranging transportation to the courthouse will subject minors to risks they would not otherwise take. Many minors do not have drivers' licenses and public transportation is spotty or non-existent from some areas. Kinsler Cert. 21 Johnson Cert. 27 Sabino Cert. 24. Thus, some minors will be forced to resort to drastic measures to get to court such as driving without a license or hitchhiking. Sabino Cert. 25-26. One young woman from Massachusetts, for example, missed the only bus from her town to the courthouse because of her morning sickness. Id. at § 25. Determined not to miss the hearing, she hitchhiked forty miles to the courthouse, something she had never done before. Id. The steps minors take are a testament to the strength of their conviction that they must preserve their confidentiality. Moreover, the bypass process will inevitably delay abortions because of the difficulties minors will have figuring out how the process works, making confidential phone calls, arranging for transportation, and scheduling a hearing date when they can miss school without arousing too much suspicion or missing an important event, such as a test. Sabino Cert. 18, 21-24, 27, 42; Johnson Cert. § 30; Tumberello Cert. § 27; Holmes Cert. 15-16; Kinsler Cert. § 21; Esquilin Cert. § 28. Even in states with well-established systems in place to help minors through the process, minors must often put off having an abortion for two weeks, and sometimes a month, in order to obtain a bypass. Sabino Cert. 18, 27. As explained below, this delay increases risks to women's health. The process will also take a tremendous emotional toll. Young women who cannot notify a parent will be compelled to appear in court and discuss the most personal of matters in front of complete strangers. Sabino Cert. § 31; Martin Cert. 10, 13; see also Johnson Cert. § 29; Kinsler Cert. § 19. And they will have to do so knowing that the very course of their life might well hinge on their ability to persuade the judge to issue a bypass. Sabino Cert. § 31; Martin Cert. § 13. The Act will thus force these minors to suffer through a grueling emotional ordeal.
Because it will take minors time either to gather the courage to notify a parent or to work their way through the bypass system, the Act will irreparably harm minors by forcing them to delay their abortions. Kinsler Cert. 20-21; Sabino 18, 42; Henshaw Cert. § 19; Zabin Cert. § 15; Weiss Cert. § 35; Tumberello Cert. § 27; Esquilin Cert. § 28. Although abortion is one of the safest surgical procedures available and remains safer than continuing a pregnancy through childbirth, any delay in obtaining an abortion is significant because both the risk of major complications and the death rates for abortion increase with each passing week after eight weeks gestation. Weiss Cert. 11-13, 36; Henshaw Cert. 9-10; Holmes Cert. § 16; Kinsler Cert. § 22. Delay has other implications as well. As a woman's pregnancy progresses, the cost of an abortion increases sharply -- rising from approximately $300-330 for an abortion before fourteen-weeks gestation, to between $550-695 for a sixteen-week procedure, and between $850-995 for an abortion at twenty weeks' gestation. Johnson Cert. § 32; Tumberello Cert. § 29; Kinsler Cert. & 22; see also Henshaw Cert. § 23. In addition, in New Jersey, after fourteen weeks' gestation, the number of physicians who perform abortions declines sharply. Henshaw Cert. § 23; Johnson Cert. § 32; Kinsler Cert. § 22; Weiss Cert. § 39. The increased cost, combined with the need to travel to the few physicians who provide this service, make the abortion more difficult, if not impossible, for some minors to obtain. Henshaw Cert. § 23; Kinsler Cert. § 22; Johnson Cert. § 32; Weiss Cert. § 39; Tumberello Cert. § 29. For minors, the impact of added delay is even more pronounced. Minors already tend to seek abortions later in pregnancy than do adults for a number of reasons, including difficulty recognizing their pregnancy, given irregular menstrual cycles; their reluctance to confront the reality of their pregnancy; the problems they face arranging the abortion without arousing the suspicion of parents, friends, or others; their unfamiliarity with the health care system; and the difficulty they have raising the funds for an abortion and arranging transportation to the clinic. Henshaw Cert. 21-22; Tumberello Cert. § 28; Weiss Cert. 37-38; Zabin Cert. § 15; Johnson Cert. § 31. The Act will force some minors -- including those who experience significant delays, those who are too afraid to notify a parent or use the bypass, and those whose parents, once notified, obstruct their choice -- to carry their pregnancies to term. Henshaw Cert. 19, 23, 28; Johnson Cert. 31-33; Kinsler Cert. 17, 22; Sabino Cert. § 42; Weiss Cert. § 39. Such forced childbearing has severe consequences for minors. First, it increases the risks to the minor's life and health. Weiss Cert. 11-15. Pregnancy and childbearing pose serious risks to women's health -- from discomforts that occur during "normal" pregnancies to conditions that can lead to major illnesses and even death. See generally Weiss Cert. 15-27. Indeed, a woman is more than twenty times more likely to die from continuing her pregnancy through childbirth than she is from a first-trimester abortion, when approximately ninety percent of all abortions are performed. Weiss Cert. § 12; Henshaw Cert. § 9; Zabin Cert. § 25. Continued pregnancy also poses a much greater risk of major complications than does abortion. Weiss Cert. § 13; Henshaw Cert. § 10; Zabin Cert. § 25. And teenagers are more likely to suffer complications from pregnancy and childbirth than older women. Weiss Cert. 25-27. In addition, the majority of adolescents who bear children suffer severe adverse social and economic consequences. Zabin Cert. 28-29; Henshaw Cert. § 24. Nationally, over eighty percent of these young mothers end up in poverty. Henshaw § 24. Few of these young mothers have completed high school or go on to college and graduate school. Zabin Cert. 29, 35; Henshaw Cert. § 24. In addition, minors who carry an unwanted pregnancy to term are more likely than those who terminate unwanted pregnancies to experience negative psychological effects. Zabin Cert. 26-27, 38-39. Finally, the children of adolescent mothers suffer as well: they have a greater risk of health problems at birth and in childhood than do children born to older women. Weiss Cert. § 28; Zabin Cert. § 30; Henshaw Cert. § 25. * * * In sum, the harm to these young women and the frustration of their reproductive choice that will flow from enforcement of the Act is irreparable. The impairment of their constitutional rights alone, even for minimal periods, constitutes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976); Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (A>[A]n alleged constitutional infringement will often alone constitute irreparable harm.=@ (citation omitted)). Moreover, the harm that results from denial of the right of reproductive choice "is as irreparable as any that can be imagined: not only does it flow from the deprivation of constitutional rights, but it also creates a situation which is irreversible and not compensable." Pilgrim Med. Group v. New Jersey State Bd. of Med. Examiners, 613 F. Supp. 837, 848-49 (D.N.J. 1985); see also Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (holding that a finding that the constitutional right of reproductive choice is threatened or in fact impaired "mandates a finding of irreparable injury"); Doe v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 644 (4th Cir. 1975) ("[D]enial under color of law of the right to abort . . . constitutes irreparable injury."); Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir. 1975) (affirming issuance of injunction against county hospital policy prohibiting elective abortions because members of plaintiff class would suffer irreparable injury to fundamental privacy rights). Furthermore, as other courts, including the New Jersey Supreme Court, have recognized, injunctive relief is proper to prevent action that will jeopardize women's health by impeding their access to abortion. See Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 144-46, 638 A.2d 1260, 1269-70 (1994) (holding that preservation of abortion patients' health is a proper ground for granting injunction); see also New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989) ("[A]bsent [an injunction], prospective women patients will suffer irreparable harm from delayed access to clinics. . . . including the medical risks . . . ."); Ragsdale v. Turnock, 625 F. Supp. 1212, 1227 (N.D. Ill. 1985) (holding that a showing that the government action may delay a woman's abortion, thereby increasing the health risk or preventing the abortion altogether, clearly established irreparable injury), aff'd in relevant part, vacated as moot in part, 841 F.2d 1358 (7th Cir. 1988), appeal dismissed, 503 U.S. 916 (1992). Plaintiffs have clearly demonstrated that they will suffer irreparable harm in the absence of an injunction. II.PLAINTIFFS HAVE A REASONABLE PROBABILITY OF SUCCEEDING IN PROVING THAT THE ACT IS UNCONSTITUTIONAL. By imposing on young women who seek an abortion the requirement that they notify a parent or seek a court order before they may have an abortion, the Act indisputably infringes on the right to reproductive choice guaranteed by the New Jersey Constitution. And by imposing that requirement, while at the same time granting a pregnant minor who chooses to carry her pregnancy to term the full authority to consent, without any parental involvement, to all medical care for herself and, ultimately, her child, the Act manifestly discriminates against pregnant minors who choose to exercise their right to abortion and impinges on the constitutional right to equal protection of the laws. These intrusions on minors' constitutional rights are not justified by any greater public need. Although the State attempts to justify the Act by pointing to the government's interests in protecting the family structure and in ensuring that minors make fully informed choices, those interests are simply not furthered by the Act. Moreover, the State cannot legitimately maintain the gravity of those interests, as it readily casts them aside the moment that a minor chooses to carry her pregnancy to term rather than have an abortion. The decision of the New Jersey Supreme Court in Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982), and other cases involving the right to privacy in this state amply establish that Plaintiffs have a reasonable probability of ultimate success on the merits of these constitutional claims. Indeed, they compel a holding that the Act is unconstitutional. In Right to Choose, the high court expressly held that the state Constitution provides protection for reproductive choice independent of and more broad than the federal Constitution. See, e.g., 91 N.J. at 299-304, 450 A.2d at 931-34. In that case, the Court held unconstitutional a legislative scheme that, like the Act challenged here, singled out women seeking abortions and imposed upon them alone burdensome restrictions. In particular, the Court held that the state Constitution forbade the government from denying Medicaid coverage to women seeking medically necessary abortions, while affording coverage to women who carried to term. Such discriminatory treatment, the Court held, infringed on women's right to privacy and violated their right to equal protection of the laws. In so holding, the Court expressly rejected the federal constitutional standard, under which the United States Supreme Court had upheld a similar Medicaid scheme. Right to Choose, 91 N.J. at 299-301, 450 A.2d at 931-32 (rejecting analysis set forth in Harris v. McRae, 448 U.S. 297 (1980)).5 Given the more expansive privacy rights guaranteed by the New Jersey Constitution, and recognized by the Court in Right to Choose, it is of no moment that the United States Supreme Court has held that the federal Constitution does not bar a state from enacting a law mandating parental involvement for minors seeking abortions, see, e.g., Bellotti v. Baird, 443 U.S. 622 (1979). The New Jersey Constitution can no more tolerate the infringement of minors' privacy rights wrought by the discrimination against minors who choose abortions than it could tolerate the infringement of the right to reproductive choice inherent in the unequal treatment of Medicaid-eligible women seeking coverage for abortions. Here, as in Right to Choose, by singling out for burdensome treatment young women who choose to end a pregnancy, the State impermissibly burdens the right of reproductive choice and violates the guarantee of equal protection jealously guarded by the New Jersey Constitution. In enjoining the Act as impermissible under New Jersey's Constitution, this Court will not stand alone. Courts in other states with similarly broad protections for individual rights have not hesitated to hold that laws requiring parental involvement for abortions violate minors' constitutional rights. Indeed, relying on precedent directly analogous to Right to Choose in which it struck a discriminatory Medicaid scheme, the California Supreme Court held that its law requiring parental consent for abortions violated the state constitution. American Academy of Pediatrics v. Lungren, 940 P.2d 797, 809 (Cal. 1997) (citing Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 (Cal. 1981)). Looking to the more expansive protections in their state constitutions, the courts of Florida, Alaska, and Montana have similarly struck laws like the Act that condition a minor's access to abortion on her involving a parent or obtaining a court order. In re T.W., 551 So. 2d 1186 (Fla. 1989); Wickland v. Montana, No. ADV 97-671 (Mont. Dist. Ct. Feb. 11, 1999) (granting summary judgment), appeal docketed, No. 99-311 (Montana Supreme Court May 24, 1999) (attached as Exhibit A to Addendum to Brief in Support of Plaintiffs' Motion for Temporary and Preliminary Restraints ("Addendum")); Planned Parenthood v. Alaska, No. 3AN-97-6014 (Alaska Super. Ct. Feb. 25, 1998) (granting summary judgment), appeal docketed, No. S-08580 (Alaska Supreme Court Apr. 8, 1998) (attached as Exhibit B to Addendum); North Florida Women's Health & Counseling Service, Inc. v. Florida, No. 99-3202 (Fla. Cir. Ct. July 26, 1999) (granting temporary injunction) (attached as Exhibit C to Addendum). But see Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997). Moreover, even as measured against the federal standard, the Act cannot pass constitutional muster. The United States Supreme Court has made clear, that in order to withstand constitutional scrutiny, a parental involvement law must ensure confidentiality in any bypass procedure. See, e.g., Bellotti, 443 U.S. at 643-44. In numerous ways, the Act's judicial bypass procedure fails to meet this standard. The Act compromises, and in some cases expressly breaches, minors' confidentiality by failing to guarantee the confidentiality of records relating to a minor's petition, by directing that notice be sent to a parent when the superior court denies a petition, and by mandating reporting of abuse revealed during the bypass proceeding. Even under the federal Constitution, a parental notice law with such a deficient bypass would fall. And, given New Jersey's broader protections for individual rights, the Act is unquestionably invalid under the state Constitution. For all of these reasons, Plaintiffs have a reasonable probability of succeeding on the merits.
By conditioning the exercise of the right to terminate one's pregnancy on the notification of a parent or the ability to obtain a court order, the Act strips from minors the right to make for themselves the fundamental decision whether or not to bear a child. In so doing, the Act impermissibly infringes on the right to privacy guaranteed by Article I, paragraph 1 of the New Jersey Constitution. Employing "more expansive language than that of the United States Constitution," Right to Choose, 91 N.J. at 303, 450 A.2d at 933, Article I, paragraph 1 of the New Jersey Constitution provides: All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. N.J. Const. art.1, par. 1.6 "By declaring the right to life, liberty and the pursuit of safety and happiness, Art. I, par. 1 protects the right of privacy . . . ." Right to Choose, 91 N.J. at 303, 450 A.2d at 933. This right safeguards decisions that "bear[] so vitally upon . . . matter[s] of deep personal privacy [as to] . . . be considered an integral aspect of the . . . right of all people to enjoy and pursue their individual well-being and happiness." In re Matter of Grady, 85 N.J. 235, 250, 426 A.2d 467, 474 (1981) (internal quotations omitted) (holding right to privacy under state Constitution protects decision to undergo sterilization). As the New Jersey Supreme Court has recognized, the "right [to privacy] encompasses one of the most intimate decisions in human experience, the choice to terminate a pregnancy or bear a child." Right to Choose, 91 N.J. at 306, 450 A.2d at 934. The right to reproductive choice is carefully safeguarded because, as other courts have explained, "[f]ew decisions are more personal and intimate, more properly private, and more basic to individual dignity and autonomy, than a woman's decision . . . whether to end her pregnancy." In re. T.W., 551 So. 2d at 1193 (citation and internal quotation marks omitted). Indeed, the right of reproductive choice "is central to a woman's control not only of her own body, but also to the control of her social role and personal destiny." American Academy of Pediatrics, 940 P.2d at 813 (citation and internal quotation marks omitted). For these reasons, the New Jersey Supreme Court has held "[t]he right to choose whether to have an abortion . . . is a fundamental right of all pregnant women." Right to Choose, 91 N.J. at 305, 450 A.2d at 934. The right to choose abortion is one afforded to minors and adults alike. As the New Jersey Supreme Court has recognized, minors are "persons protected by the . . . New Jersey Constitution[]." State ex rel. T.L.O., 94 N.J. 331, 340, 463 A.2d 934, 938 (1983), reversed on other grounds sub nom. New Jersey v. T.L.O., 469 U.S. 325 (1985). They are therefore guaranteed the right to reproductive choice, one of the "natural and unalienable rights" afforded to "[a]ll persons" by Article 1, paragraph 1. See N.J. Const. art. 1, par. 1; see also American Academy of Pediatrics, 940 P.2d at 814 (looking in part to the state constitution's provision of inalienable rights to "[a]ll people" in holding that privacy right extends to minors); In re T.W., 551 So. 2d at 1193 (same with respect to state constitution's provision extending privacy right to "[e]very natural person"); Planned Parenthood v. Alaska, No. 3 AN-97-6014, slip op. at 12 (same as to state constitution's provision recognizing the "right of the people to privacy"). Indeed, given the importance of the right involved -- the right to decide whether or not to have a child -- and the severe consequences of denying the right, it must extend to minors as well as adult women.7 As the California Supreme Court explained:
American Academy of Pediatrics, 940 P.2d at 816 (emphasis in original). Because of its importance, the New Jersey Constitution steadfastly protects women's right to reproductive choice from undue governmental interference. In Right to Choose, for example, the Supreme Court invalidated a statutory provision that denied Medicaid-coverage for medically necessary abortions where coverage was otherwise provided for medically necessary pregnancy and childbirth services for women who chose to carry their pregnancies to term. Despite the United States Supreme Court's earlier ruling that the government's refusal to fund medically necessary abortions on par with medically necessary childbirth services did not infringe women's right to privacy as guaranteed by the federal Constitution, Harris, 448 U.S. at 312-18, the New Jersey Supreme Court held that such a scheme "affect[ed] the right of poor pregnant women to choose between alternative necessary medical services." Right to Choose, 91 N.J. at 308, 450 A.2d at 936. In so doing, the Court held, it worked a substantial invasion of women's fundamental right to choose. Right to Choose, 91 N.J. at 306, 310, 450 A.2d at 934, 936. As the Court explained:
Right to Choose, 91 N.J. at 306, 450 A.2d at 934. Like the statute at issue in Right to Choose, the Act unquestionably infringes on a minor's right to "control her body and her destiny." Like the statute at issue in Right to Choose, the Act sets up roadblocks that significantly "affect the right of pregnant women to choose" between childbirth and abortion. As explained above, the requirement of parental notification will be a virtually insurmountable obstacle for many minors, who have compelling reasons -- such as fear of abuse, fear of being evicted from their homes, and fear of being forced to carry to term -- to avoid parental involvement. And, if forced to notify a parent, some will suffer the very harms they fear. See Part I.A. supra. Nor, for many minors, will the judicial bypass offer relief from the burdens imposed by the parental notice requirement. See Part I.B. supra. Some adolescents will be too frightened to appear in court or will avoid the proceedings altogether for other reasons. Those who decide, because they feel they have no choice, to attempt to navigate their way through this process, will face numerous barriers, including the need to make confidential phone calls; to arrange for safe transportation; to explain inevitable absences from school; and to conceal their identity and purpose inside the courthouse, all of which put their confidentiality at risk. Indeed, the very acts required to secure a waiver of the parental notification requirement will often lead to parents' learning of their daughters' decision. Furthermore, both the parental notice requirement and the judicial bypass requirement will force many minors to delay their abortions to the point that the procedure becomes significantly riskier, more costly, and less available. See Part I.C. supra. This delay, coupled with the need to raise additional money and travel to the few facilities that provide later abortions, will force some minors to carry unwanted pregnancies to term. For those minors, the Act will effectively nullify the right to abortion altogether. Confronted with similar evidence, other courts have not hesitated to conclude that mandatory parental involvement laws infringe on a minor's right to privacy. For instance, relying on evidence similar to that presented here, the California Supreme Court held that:
American Academy of Pediatrics, 940 P.2d at 817. "[S]uch consequences," the Court concluded, "unquestionably . . . represent a most significant intrusion on the minor's protected privacy interest." Id. at 817-18. Courts in Florida, Montana, and Alaska, looking toward their state constitutions, have reached the same conclusion. For example, in striking Florida's parental consent law as violative of minors' privacy rights under the state constitution, the Florida Supreme Court held that requiring a minor to involve a parent or go to court constituted a "substantial invasion of a pregnant female's privacy by the state." In re T.W., 551 So. 2d at 1194; see also North Florida Women's Health & Counseling Services, No. 99-3202, slip op. at 6 (enjoining Florida's newly-enacted parental notice law on ground that it impermissibly intruded on a minor's right to reproductive choice under Florida Constitution). Courts in Montana and Alaska have similarly held that mandatory parental involvement laws infringe on a minor's right to reproductive choice. See Wicklund, No. ADV 97-671, slip op. at 5-8 (holding that parental notice law impermissibly infringed on privacy rights of pregnant minors under Montana Constitution); Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 15 (same with respect to parental consent law under Alaska Constitution). The reasoning of the New Jersey Supreme Court in Right to Choose, the precedent of other states with independent constitutional protection, and the evidence in this case thus establish that the Act, if permitted to take effect, will infringe the right of reproductive choice guaranteed by this state's Constitution. B.The Act Violates Minors' Right to Equal Protection of the Laws Guaranteed by the New Jersey Constitution. By creating two sub-classes of pregnant minors -- those choosing to terminate their pregnancies and those carrying their pregnancies to term -- and imposing a parental notification requirement on one group, but not the other, the Act impermissibly discriminates between two similarly situated groups in violation of the New Jersey Constitution's guarantee of equal protection. Again, the Supreme Court's decision in Right to Choose commands, and the precedent of other states urges, this result. The right to equal protection of the laws, like the right to privacy, is guaranteed by Article I, paragraph 1 of the New Jersey Constitution. Right to Choose, 91 N.J. at 304-05, 450 A.2d at 934; Peper v. Princeton University Bd. of Trustees, 77 N.J. 55, 79, 389 A.2d 465, 477 (1978). This right protects against "the unequal treatment of those who should be treated alike," Greenberg v. Kimmelman, 99 N.J. 552, 568, 494 A.2d 294, 302 (1985), and ensures that "no person or class of persons shall be denied the protection of the laws enjoyed by other persons or classes of persons in their lives, liberty and property, and in the pursuit of happiness," Peper, 77 N.J. at 79, 389 A.2d at 477 (internal quotations and citation omitted). Despite this fundamental constitutional guarantee of equal treatment, the Act singles out one sub-group of pregnant minors -- those exercising their constitutional right to choose an abortion -- for unequal treatment by imposing on them a requirement of parental notification entirely absent for pregnant minors who choose to carry to term. In so doing, the Act violates the state guarantee of equal protection. As to this, Right to Choose leaves no doubt. In Right to Choose, the Court made clear that women seeking abortions cannot be denied the protection of the laws enjoyed by women choosing to carry to term. It thus held that governmental action that singles out a woman and places restrictions upon her based on her decision to terminate her pregnancy cannot withstand constitutional scrutiny. The Court explained:
Right to Choose, 91 N.J. at 305, 450 A.2d at 934. Because such a discriminatory scheme "impinges upon the fundamental right of a woman to control her body and her destiny," the Court held that the legislation denied equal protection of the laws to those women seeking abortions, and was therefore unconstitutional. Right to Choose, 91 N.J. at 306, 310, 450 A.2d at 934, 936-37. The legislation being challenged before this Court is no different. Here, as in Right to Choose, the state is treating differently those pregnant women who are seeking medical care to continue their pregnancies, and those seeking medical care to terminate their pregnancies. While a pregnant minor who decides to carry her pregnancy to term may make all medical decisions concerning her pregnancy without her parents' knowledge or involvement -- no matter what medical risks are involved -- the Act requires pregnant minors choosing to terminate their pregnancies to notify a parent or obtain a judicial bypass. For example, despite the much more serious risks involved, a pregnant minor can: decide to continue her pregnancy even if doing so might significantly impair her health; choose to undergo medically necessary treatment that may harm her fetus; or consent to major surgery such as a cesarean section or in-utero fetal surgery -- all without ever notifying a parent. Weiss Cert. 30-33; see Act ' 1. In addition, a minor of any age is permitted under the law to make all medical decisions for her own child without parental or judicial involvement. See Act ' 1. She may even decide to place her child for adoption without her parents being notified. See N.J. Stat. Ann. ' 9:2-16. Only with respect to the specific sub-group of pregnant minors who choose to have an abortion has the state imposed the restrictive, and for many, entirely obstructive, requirement of parental notification. Here, as in Right to Choose, the differential treatment constitutes discrimination based on a woman's exercise of her right to abortion. And here, as in Right to Choose, this discrimination "impinges on the fundamental right of a woman to control her body and her destiny." Right to Choose, 91 N.J. at 306, 450 A.2d at 934. Such discrimination may not be imposed in the private arena of procreative choice. This conclusion is consistent with that of other courts that, looking toward their state constitutions, have recognized the discrimination inherent in laws mandating parental involvement in minors' abortion decisions. For example, facing a similar statutory scheme whereby only those pregnant minors who sought abortions were required to involve a parent, a court in Alaska held that state's law unconstitutional because it arbitrarily "create[d] two separate classes of pregnant minors, one class comprised of those who elect to have abortions and another class comprised of those who elect to carry the fetus to term." Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 19. A court in Montana likewise invalidated that state's parental notice for abortion law as violative of equal protection because it "create[d] unequal and unfair application to pregnant minors who want to terminate their pregnancy, when compared with the class of pregnant minors who choose not to do so." Wicklund, No. ADV 97-671, slip op. at 14. The New Jersey Constitution, and the Supreme Court's decision in Right to Choose, compel the same result here.
Because the Act impinges on the fundamental rights to privacy and equal protection guaranteed by the New Jersey Constitution, it must be struck as unconstitutional unless the State can prove that infringement of these rights is outweighed by a greater public need. See, e.g., Greenberg v. Kimmelman, 99 N.J. 552, 567, 494 A.2d 294, 302 (1985) (explaining that to determine whether an asserted state interest justifies the intrusion upon an individual's fundamental right, courts should balance "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction"). Under New Jersey law, "the more personal the right, the greater the public need must be to justify governmental interference with the exercise of that right." George Harms Construction Co., Inc. v. New Jersey Turnpike Authority, 137 N.J. 8, 29, 644 A.2d 76, 87 (1994). Indeed, as the New Jersey Supreme Court has repeatedly recognized: "[W]here an important personal right is affected by governmental action, the Court often requires the public authority to demonstrate a greater public need than is traditionally required in construing the federal Constitution." Right to Choose, 81 N.J. at 309, 450 A.2d at 936 (holding that the New Jersey Constitution may require a more persuasive showing of public need to justify infringement of the right to reproductive choice than is required under the federal compelling state interest test) (citation and internal quotation marks omitted); see also In re Grady, 85 N.J. at 249, 426 A.2d at 474 (noting that "governmental intrusion into privacy rights may require more persuasive showing of a public interest under our State Constitution than under the federal Constitution"); State v. Saunders, 75 N.J. at 216-17, 382 A.2d at 341. Thus, where, as here, the right at issue "encompasses one of the most intimate decisions in human experience," Right to Choose, 91 N.J. at 306, 450 A.2d at 934, the restriction must advance a public need of the highest order. This the Act fails to do. Although the Act sets forth a number of purported interests and findings, mere assertion of these interests is not sufficient. Rather, once Plaintiffs have demonstrated that the Act impinges on fundamental rights -- as Plaintiffs have done here -- the burden is on the State "to present and confirm . . . compelling legitimate governmental interests and a reasonable factual basis for [the Act] in order to validate its legislative action." Bell v. Township of Stafford, 110 N.J. 384, 396, 541 A. 2d. 692, 699 (1988). The State cannot carry this burden. The State attempts to justify the Act by pointing to essentially two interests: (1) an interest in ensuring that minors make fully informed choices that take into account the consequences of their decision, including any medical, emotional, and psychological consequences, and (2) an interest in protecting the family structure, including the right of parents to rear their children. Act ' 3. Neither of these asserted interests, however, outweighs the severe infringement on minors' fundamental rights wrought by the Act. As an initial -- and dispositive -- matter, the State's assertion of these interests is fundamentally inconsistent with its grant of power to minors to make a whole host of equally, if not more, important decisions concerning their lives and their medical care without involving a parent. Moreover, the Act does not further any of the State's asserted interests. Indeed, in many cases, these interests are undermined by the Act. Most fundamentally, the State's contention that the imposition of a parental notice requirement in the abortion context is necessary to protect the welfare of minors and the family structure is belied by its rejection of any such requirement for minors who choose to carry their pregnancies to term. As detailed previously, despite the serious and often complicated medical decisions to be made, Weiss Cert. 15-27, 30-31, the law deems minors who choose to carry their pregnancies to term mature enough to consent to all of their medical care on their own. N.J. Stat. Ann. ' 9:17A-1. Similarly, despite the assured impact on the minor and her family, she alone may decide to bring a new child into the family, or to place her child for adoption. N.J. Stat. Ann. ' 9:2-16. Only if the young woman wants to terminate her pregnancy does the Legislature deem her too immature to make this decision and treat her decision as having such grave implications for her health, her future, and her family that she cannot make this decision independently.8 Confronting similar fundamentally inconsistent statutory schemes, other courts have not hesitated to hold that the state's interests are insufficient to outweigh minors' constitutional rights to privacy and equal protection. As the Florida Supreme Court explained:
In re T.W., 551 So. 2d at 1195 (citation omitted). The California Supreme Court echoed this sentiment. In striking that state's parental consent law as unconstitutional, the court reasoned:
American Academy of Pediatrics, 940 P.2d at 826 (citing In re T.W.); see also Wicklund, No. ADV97-671, slip op. at 8-13. Here, too, the State's treatment of minors who carry to term -- its recognition of their ability and need to make important, potentially life-altering decisions without notifying a parent -- evidences the weakness of its asserted interests. Such frail and inconsistently respected interests cannot outweigh minors' constitutional rights. The State can show no qualitative difference between the decision to end, and the decision to continue, a pregnancy that could justify this differential treatment. First and foremost, the Legislature's claim that there are serious medical, psychological, and emotional effects associated with abortion cannot justify the Act's differential treatment of minors who choose abortion. Continuing a pregnancy to term carries risks of both major medical complications and of death far greater than those associated with abortion. Weiss Cert. 11-27; Henshaw Cert. 9-10; Zabin Cert. § 25; American Academy of Pediatrics, 940 P.2d at 828.9 Indeed, a woman is more than twenty times more likely to die from continuing her pregnancy through childbirth than she is from a first-trimester abortion, when approximately ninety percent of all abortions are performed. Weiss Cert. § 12; Henshaw Cert. § 9; Zabin Cert. § 25. Moreover, adolescent childbearing carries with it severe and long-lasting social, educational, and economic consequences. See generally Zabin Cert. 27-41; Henshaw Cert. 24-25. Over eighty percent of teens who give birth end up in poverty. Henshaw Cert. § 24. Teenage mothers are also less likely to finish high school or go on to higher education than are women who delay having a child until their twenties. Henshaw Cert. § 24; Zabin Cert. 29, 35. In addition, the children of adolescent mothers face increased health risks -- both at birth and during childhood -- than do children of older mothers. Zabin Cert. § 30; Henshaw Cert. § 25; Weiss Cert. § 28. The risks of abortion are simply not comparable to the significant consequences of forcing minors to bear a child, and surely do not justify parental involvement where none is required for adolescents who choose to continue a pregnancy. As already detailed above and in Part I.C., supra, abortion is one of the safest surgical procedures, with risks of death and medical complications less than those associated with childbearing. Nor are there comparable long-term risks, medical or otherwise. Indeed, the only other such risk the Legislature cites -- that of emotional and psychological consequences -- is unfounded. As the American Psychological Association concluded after an exhaustive review of the literature, abortion poses little psychological hazard for women terminating unintended pregnancies. Adler Cert. 12-16, 19. In fact, the most common emotional responses after abortion are relief and happiness. Adler Cert. § 16; Zabin Cert. § 26. Even former-Surgeon General C. Everett Koop, who openly opposes abortion, determined after a 15-month study that the risk of developing significant psychological problems after an abortion is "minuscule from a public health perspective." Adler Cert. § 13.10 In sum, as the American Academy of Pediatrics ("AAP") has concluded, "[t]here is no rational basis for policies that put barriers in the way of an adolescent's selection of abortion because of concerns about physical or psychological consequences." AAP Statement at 749 (attached to Graff Cert. as Exhibit A).11 Nor can the Act be justified on the ground that teens "lack the ability to make fully informed choices" that take into account "immediate and long-term consequences." Act ' 3. Under New Jersey law, minors are deemed to have the ability to make fully informed choices regarding childbearing. Nothing about abortion changes their capacity. Indeed, the evidence shows that teens seeking abortions are fully capable of making informed decisions. As the California Supreme Court recently concluded:
American Academy of Pediatrics, 940 P.2d at 825. Plaintiff-providers in New Jersey similarly attest to the capacity of their minor patients to make informed decisions regarding abortion -- fully cognizant of the nature of the procedure, its risks, and the alternatives -- and to the necessity of obtaining informed consent prior to providing any medical service. Tumberello Cert. 16-18; Johnson Cert. § 22; Kinsler Cert. § 27; Holmes Cert. 9-10; Weiss Cert. § 32. Minors initially demonstrate their maturity by recognizing their problem and seeking help with it. Kinsler Cert. § 28; Zabin Cert. § 43; see also Tumberello Cert. § 18. Moreover, the explanations that adolescents give for choosing abortion -- that they are not ready to raise a child, that they cannot financially support another person, that having a child will prevent them from completing their education -- indicate that they have carefully considered their options and weighed the alternatives. Tumberello Cert. § 18; Johnson Cert. § 22; Kinsler Cert. § 28; Martin Cert. § 11. The experience of providers is confirmed by numerous empirical studies, which have found that minors are as capable as adults of weighing their options and making informed, rational decisions in general, and about abortion in particular. Adler Cert. 29-33, 38-42; Zabin Cert. § 42.12 For example, the American Psychological Association concluded, after a comprehensive review of the scientific evidence, that "adolescents do not differ from adults in their ability to understand and reason about treatment alternatives." Adler Cert. § 30. This conclusion is further buttressed by the experiences of judges hearing bypass petitions in other states who nearly uniformly find the minors who come before them sufficiently mature and well enough informed to consent to the procedure on their own. Martin Cert. § 11 (explaining that of the over 600 bypass petitions he has heard, he granted all but one on the ground that the minors were mature enough to make their decision without involving a parent); Sabino Cert. 6, 10, 33 (explaining that all but two of the 15,000 bypass petitions filed in Massachusetts in the past eighteen years have been granted -- ninety-eight percent on maturity grounds).13 Nor can the Act be justified as necessary to foster family structure or to support parents' rights. As noted above, given that the state permits minors to make so many other important decisions without parental involvement -- including the decision to carry to term, the decision to become a parent, and the decision to place a child for adoption -- the State cannot seriously contend that parental involvement is necessary to preserve the family unit and protect parental rights when a minor chooses abortion. See American Academy of Pediatrics, 940 P.2d at 826-27 (holding that state's asserted interest in protecting the parent-child relationship by requiring parental involvement for abortion was incredible given the broad range of other decisions minors were permitted to make without consulting with their parents); see also In re T.W., 551 So. 2d at 1195 (same). Moreover, if there were some justification for singling out minors who choose to terminate their pregnancies, which there is not, there is no reason to think that the Act promotes the family unit or protects parental rights. As the California Supreme Court reasoned, "the primary determinant of whether a pregnant minor will consult her parents is the quality of the parent-child relationship that existed before the minor became pregnant, and not the presence or absence of [a parental involvement law]." American Academy of Pediatrics, 940 P.2d at 829. Indeed, as the experience of other states demonstrates, for many minors who feel they cannot turn to their parents for support at this difficult time in their lives, no law can change this. See Henshaw Cert § 26 (detailing study finding no meaningful difference in rate of parental involvement in state with a mandatory parental notice law as compared to state without such a law); Sabino Cert. § 32; Zabin Cert. § 23. Rather, many of these minors -- indeed in some states almost a third of all minors -- travel out of state to jurisdictions with no such parental involvement requirements to obtain their abortions. Sabino Cert. § 32. Other minors -- more than 15,000 adolescents in Massachusetts alone -- seek judicial authorization rather than involve their parents. Sabino Cert. 6, 33; see also AAP Statement at 748 (finding that mandatory parental involvement legislation "does not increase the likelihood that parents will be involved" and that "[i]n states with such laws, adolescents who are not willing to inform parents use judicial bypass mechanisms, go out of state to obtain services, obtain clandestine care, or delay care") (attached to Graff Cert. as Exhibit A). A law that forces adolescents to travel out of state for care or to seek a judge's approval, all to avoid notifying their parents, cannot be said to improve family relationships or protect parental rights.14 Thus, the legislative "findings" asserted to justify the Act fail. They simply do not establish a basis for the Act and its discrimination against minors who choose abortion. The mandate of parental notification is not necessary to protect minors' health, to protect them from making uninformed decisions, or to foster family relationships. Moreover, as explained in detail in Section I, supra, far from protecting adolescents, the Act actually puts minors' health and their families at risk. See also American Academy of Pediatrics, 940 P.2d at 829 (concluding parental involvement law will impede state interests). For example, the evidence shows that requiring adolescents to notify a parent against their better judgement will result in serious harm, including abuse, eviction from the home, and forced childbearing. See Part I.A., supra. Clearly, the minor's physical and mental health will suffer as a result, as will the family relationship. See American Academy of Pediatrics, 940 P.2d at 829 (forcing minor from potentially abusive family to involve parent "would endanger the minor . . . and . . . exacerbate the instability and dysfunctional nature of the family relationship"). Those who choose the judicial bypass will also be subject to these harms. As detailed previously, the bypass often results in a loss of confidentiality, with attendant harms; it places enormous stress and anxiety on adolescents; and it inevitably engenders delay which increases the risk of the procedure, if not rendering it an impossibility. See Parts I.B., I.C., supra. Still other minors, if forced to notify a parent or go to court, will resort to drastic measures such as self-induced or illegal abortions. See Part I.A., supra. In this way too, the Act will harm, not help, minors.15 Indeed, precisely because of the risks to adolescents posed by such laws, a number of professional medical organizations, including the American Academy of Pediatrics, the American Medical Association, and the Society for Adolescent Medicine, oppose mandatory parental involvement requirement laws. See American Medical Association Statement (attached to Henshaw Cert. as Exhibit D); AAP Statement (attached to Graff Cert. as Exhibit A). In sum, the State can assert no greater public need to justify the infringement on minors' constitutional rights. Concern for minors' health, their inability to make informed decisions, and their family relationships ring false, where minors may choose to have a child or to place a child for adoption with no requirement of parental involvement. They ring falser still in light of the evidence, which shows that the health of minors and family relationships will only be harmed by the Act. Because no greater public need outweighs the significant intrusion on minors' constitutional rights, Plaintiffs have shown more than a reasonable probability of success on their claims that the Act impermissibly violates the state constitutional guarantees of privacy and equal protection.
As demonstrated above, the Act's requirement that all pregnant minors either notify a parent or obtain a court order before they may have an abortion violates minors' fundamental rights guaranteed by the New Jersey Constitution. In addition, even if some form of parental notice law could withstand scrutiny under the New Jersey Constitution, which it cannot, the Act would nonetheless be invalid because its judicial bypass provisions -- which purport to provide an alternative to parental notice -- lack sufficient guarantees of confidentiality and, in some cases, explicitly require that a minor's parent be notified. Indeed, even under the federal Constitution, which provides less protection to individual's privacy rights than the New Jersey Constitution, the bypass provision fails to pass muster. It is clear, therefore, that the Act's bypass provision violates minors' right to privacy, as guaranteed by the New Jersey Constitution. For this reason as well, the Act must be enjoined. In Bellotti v. Baird, 443 U.S. 622 (1979) [hereinafter Bellotti II], the United States Supreme Court made clear that in order to safeguard a minor's right to abortion, minors must be afforded a confidential and expeditious means of bypassing any parental involvement requirement. Id. at 643-44; see Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (reaffirming Bellotti II). In order to withstand constitutional scrutiny, the bypass mechanism "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; accord Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 512 (1990) [hereinafter Akron II]. Confidentiality is critical because "[a] woman . . . will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 766 (1986). For a minor who has determined that she cannot involve her parents, "confidentiality during and after th[e] proceeding is essential to ensure that [she] will not be deterred from exercising her right to a hearing because of fear that her parents may be notified." Zbaraz v. Hartigan, 763 F.2d 1532, 1542 (7th Cir. 1985). A parental involvement statute must therefore "take[ ] reasonable steps to prevent the public [and a minor's parents] from learning of the minor's identity." Akron II, 497 U.S. at 513. New Jersey's Parental Notification for Abortion Act fails to protect minors' confidentiality in several ways. First, the Act contains no specific provisions to ensure the minor's confidentiality at any stage of the bypass proceedings. Rather, the Act only provides generally that "[p]roceedings in the court under this section shall be confidential and insure the anonymity of the minor," Act ' 8(c), and that "[a]n expedited confidential appeal shall be available to a minor for whom the court denies an order waiving notification." Act ' 8(f). Other courts have held that such general guarantees of confidentiality are constitutionally insufficient. For example, in Zbaraz, the Seventh Circuit enjoined an Illinois parental notification statute that contained almost identical provisions regarding a minor's confidentiality. The Illinois act provided that the bypass proceedings A>shall be confidential and shall ensure the anonymity of the minor or incompetent.=@ 763 F.2d at 1543 (quoting Illinois Act). The statute further required that "an expedited confidential appeal shall be available, as the Supreme Court provides by rule" and requested that the Illinois Supreme Court promulgate any rules necessary to make sure that bypass proceedings are confidential. Id. (internal quotations omitted). The Seventh Circuit held that the statute failed to satisfy Bellotti II's confidentiality requirement because it lacked "specific provisions to assure the minor's confidentiality at the waiver hearing." Id. Further, the court emphasized, "the statute does not address particular problems concerning anonymity which exist not only during the course of the proceedings, but afterwards because of the availability of court documents and files, which are generally available to the public." Id.; see also American College of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 297, 307 (3d Cir. 1984) (enjoining enforcement of a pre-Casey version of Pennsylvania's parental consent law, because the law lacked "detailed provisions assuring confidentiality," providing instead only that bypass proceedings "shall be confidential") (internal quotation omitted), aff'd on other grounds, 476 U.S. 747 (1986). The Act at issue in this case similarly lacks the detailed provisions necessary to protect the minor's confidentiality. For example, it does not require that the bypass proceedings at either the trial level or the appellate level "be closed or conducted in such a [manner so] as to prevent the public from learning of the minor's identity." See Memphis Planned Parenthood v Sundquist, No. 3:89-0520, slip op. at 11 (M.D. Tenn. July 9, 1996) (enjoining parental consent law lacking such guarantees) (attached as Exhibit D to Addendum), vacated as moot in light of changes to law, No. 96-6104 (6th Cir. Aug. 1, 1997). In particular, while the Act contains general provisions regarding the confidentiality of the bypass proceedings, the Act does not contain any provision to ensure the confidentiality of court records. See Zbaraz, 763 F.2d at 1543; Planned Parenthood v. Harris, 670 F. Supp. 971, 991-92 (N.D. Ga. 1987) (holding that parental notice statute failed to protect minors' confidentiality by not specifically providing for confidential recordkeeping); Planned Parenthood v. Miller, No. 4-96-CV-10877, slip op. at 18-19 (D. Iowa Jan. 3, 1997) (enjoining parental notification law where statute provided that proceedings and minor's identity remain confidential and limited access to hearing, but made no provision for sealing records) (attached as Exhibit E to Addendum). The deficiency is significant, as New Jersey Rules of Court recognize the distinction between the confidentiality of proceedings and the confidentiality of records. Compare R. 5:3-2(a) (court has discretion to direct that child welfare proceeding be conducted in private) with R. 5:3-2(b) (court has authority to order that "Family Part file, or any portion thereof, be sealed"). And the omission of guarantees is egregious, given that New Jersey Rules of Court provide that all court records "shall be deemed a public record and shall be available for public inspection and copying," R. 1:38, unless a statute, rule, or court order specifically requires otherwise. R. 1:38(d)-(e). In the absence of sufficient confidentiality guarantees, the bypass will provide a grossly ineffective avenue of relief for those who need it most. Bellotti II, 443 U.S. at 647. Second, the Act fails to protect -- and indeed flaunts -- minors' confidentiality by mandating that notice shall issue once a minor's bypass petition is denied by the trial court judge. Act ' 8(e). The Act requires that notice issue without regard to whether the minor intends to appeal the denial of her bypass petition and without regard to whether the minor has decided, in light of the denial, to cease pursuing an abortion in New Jersey. In so doing, the Act impermissibly vitiates the right of a minor to continue a pregnancy without telling a parent, a right the Act itself establishes, Act ' 1, or to pursue an appeal, the confidentiality of which is expressly guaranteed by the federal Constitution. Bellotti II, 443 U.S. at 644; Act '8 (f); see also Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1112 (5th Cir. 1997) (invalidating a parental involvement statute that required the court to notify a minor's parents if the court found that such notification would be in the minor's best interests, because such a requirement would "cut[] the core out of Bellotti II"). Third, the Act fails to ensure the confidentiality of abused minors, by requiring that any determination of abuse made by a judge during the bypass hearing be reported to DYFS, with the likely result that the abusive parent will find out about the minor's request for an abortion. Act ' 8(d)(2). It is beyond dispute that in order to pass constitutional muster, a parental involvement statute must contain a confidential and effective alternative to parental notice for abused minors. For example, in Hodgson v. Minnesota, 497 U.S. 417 (1990), the United States Supreme Court held that a two-parent notice statute that contained an exception for abused and neglected minors was unconstitutional because the exception did not function to ensure the minors' confidentiality. 497 U.S. at 460 (O'Connor, J., concurring).16 In that statute, as here, parental involvement was not required where the minor was abused and the abuse was reported. The Court found the exception insufficient because the report would trigger an investigation by the child welfare agency, which was likely to provide notice of the abortion to the minors' parents. Id. As the Court held, "[t]he combination of the abused minor's reluctance to report sexual or physical abuse, with the likelihood that invoking the abuse exception for the purpose of avoiding notice will result in notice, makes the abuse exception less than effectual." Id. (internal citation omitted). Likewise, in Planned Parenthood v. Miller, 63 F.3d 1452 (8th Cir. 1995), the Eighth Circuit held that an exception to a South Dakota parental notification law for reported cases of child abuse and neglect was insufficient because, among other things, the reporting requirement would "sometimes result in parental notification, even if after-the-fact." 63 F.3d at 1461. The Act's bypass provision regarding abused minors suffers from the same defects as the exceptions for abused and neglected minors at issue in Hodgson and Miller. The Act requires that a judge's finding of abuse at the bypass hearing be reported to DYFS. Act ' 8(d)(2). Upon receiving a complaint of abuse, DYFS must investigate the allegations, and, among other things, inform the minor's parent that a child protective service referral has been made, what the allegations are, and that an investigation will be conducted. See N.J. Admin. Code tit. 10, '' 10:129A-2.1, 10:129A-3.1. Moreover, the parent may request to know "the basis for the division's involvement" in a division matter in which that parent is directly involved. N.J. Stat. Ann. ' 9:6-8.10a(b)(19). Through these administrative processes, a minor's parent may well find out about her request for an abortion. Thus, the Act's bypass provision for abused minors will often act, "in reality, [as] a means of notifying the parents." Hodgson, 497 U.S. at 460; see also Esquilin Cert. § 27.17 Finally, as of the time of this filing, the New Jersey courts are simply not prepared to handle bypass petitions. The Administrative Office of the Courts has not yet issued rules governing how the bypass will work. Without such rules, the bypass will not be a viable option for any minor. Such a result is clearly unconstitutional. See Bellotti II, 443 U.S. at 643. Because the Act's bypass provision is constitutionally deficient even under the less protective federal Constitution, Plaintiffs have demonstrated that the Act impermissibly infringes on minors' right to privacy guaranteed by the New Jersey Constitution. 18 III.THE BALANCE OF HARDSHIPS WEIGHS IN FAVOR OF GRANTING INJUNCTIVE RELIEF. As discussed above, the Act, if enforced, will cause significant and irreparable harm to the lives and health of young women in New Jersey. See supra, Part I. In sharp contrast, the State will suffer no adverse consequences from entry of temporary or preliminary injunctive relief against enforcement of the Act. Indeed, an injunction will merely serve to preserve the status quo, and the way medical care has been rendered safely in New Jersey for over twenty years, pending a full and adequate consideration of the issues by this Court. See Crowe v. De Gioia, 90 N.J. 126, 134, 447 A.2d 173, 177 (1982) ("the point of temporary relief is to maintain the parties in substantially the same condition when the final decree is entered as they were when the litigation began") (internal quotation omitted). As such, the balance of the equities weighs heavily in favor of granting Plaintiffs the relief they seek.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court enter an order temporarily and preliminarily restraining Defendants from enforcing the Parental Notification for Abortion Act. 1Certifications in Support of Plaintiffs' Motion for Temporary and Preliminary Restraints are submitted herewith, and are as follows: Certification of Nancy E. Adler, Ph.D. ("Adler Cert."); Certification of Susan Cohen Esquilin, Ph.D. ("Esquilin Cert."); Certification of Michael A. Graff, M.D. ("Graff Cert."); Certification of Stanley Henshaw, Ph.D. ("Henshaw Cert."); Certification of Herbert Holmes, M.D. ("Holmes Cert."); Certification of Darrah D. Johnson ("Johnson Cert."); Certification of Phyllis Kinsler, M.S. ("Kinsler Cert."); Certification of Judge Gerald C. Martin ("Martin Cert."); Certification of Jamie Sabino ("Sabino Cert."); Certification of Joel Tumberello, R.N., M.S., N.P.C. ("Tumberello Cert."); Certification of Gerson Weiss, M.D. ("Weiss Cert."); and Certification of Laurie Schwab Zabin, Ph.D. ("Zabin Cert."). 2 New Jersey law also permits minors who bear children to decide to place their children for adoption without consulting a parent. N.J. Stat. Ann. ' 9:2-16. In addition, the law permits minors to consent to a whole host of other medical services, including obtaining treatment for venereal disease or for drug or alcohol use or dependency, without notifying a parent. N.J. Stat. Ann. ' 9:17A-4. 3 "Parent" is defined in the Act as "a parent with care and control of the unemancipated minor, unless the parent has no custodial rights; or if there is no parent with care and control, then the foster parent or the guardian of the unemancipated minor; or a person standing in loco parentis to the unemancipated minor." Act ' 4. "Person standing in loco parentis," in turn, is defined in the Act essentially as a person living with the minor, who has, for a sufficient period of time, developed a parent-like relationship with the minor, assumed certain obligations to the minor, and whose relationship with the minor has been consented to and fostered by the minor's biological or adoptive parent. Act ' 4. 4 "Medical emergency" is defined as "a condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant unemancipated minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function." Act ' 4. 5 Right to Choose does not stand alone in evidencing independent, broader protection for reproductive choice under the state Constitution. For example, even after the United States Supreme Court decided that the federal Constitution permitted states to refuse to permit elective abortions in city-owned hospitals, see Poelker v. Doe, 432 U.S. 519 (1977), New Jersey courts continued to hold that quasi-public hospitals receiving financial support from local governments could not refuse to provide elective first-trimester abortions. See Doe v. Bridgeton Hospital Ass'n, Inc., 160 N.J. Super. 266, 271, 389 A.2d 526, 528-29 (1978) (holding Poelker irrelevant to earlier decision by New Jersey Supreme Court in Doe v. Bridgeton Hospital Ass'n, Inc., 71 N.J. 478, 366 A.2d 641 (1976), which prohibited ban of elective first-trimester abortions by quasi-public hospitals); cf. Right to Choose, 91 N.J. at 304, 450 A.2d at 933-34 (citing Doe for proposition that New Jersey Constitution recognizes right to abortion independent of federal Constitution); see also In re Grady, 85 N.J. 235, 249, 426 A.2d 467, 474 (1981) (explaining that under the state Constitution Agovernmental intrusion into privacy rights may require more pervasive showing of a public interest . . . than under the federal Constitution"); State v. Saunders, 75 N.J. 200, 217, 381 A.2d 333, 341 (1977) (same); id., 75 N.J. at 225-26, 381 A.2d at 345-46 (Schreiber, J., concurring). And it is worth noting that A[e]ven before Roe v. Wade, [the New Jersey Supreme] Court intimated that a woman who had contracted rubella during her pregnancy had a right to choose whether to give birth to a defective child or undergo an abortion.@ Right to Choose, 91 N.J. at 304, 450 A.2d at 933 (citing Gleitman v. Cosgrove, 49 N.J. 22, 62-63, 227 A.2d 689, 710-11 (1967) (Weintraub, C.J., dissenting in part)); see also Right to Choose, 91 N.J. at 301, 450 A.2d at 932 (collecting cases affording rights other than reproductive choice greater protection under the New Jersey Constitution). 6 As our Supreme Court has recognized, this provision expresses "the social, political, and economic ideals of the present day in a broader way than ever before in American constitutional history." Right to Choose, 91 N.J. at 303, 450 A.2d at 933 (citation and internal quotation marks omitted). 7 This does not mean that the fact that the Act deals with minors, rather than adult women, is irrelevant to the constitutional question presented here. The Court may properly consider the minor's status, including her capacity for decision-making, when evaluating the strength of the State's asserted interests in the Act. These considerations do not, however, diminish the protection afforded minors' right to privacy. See, e.g., American Academy of Pediatrics, 940 P.2d at 814; Planned Parenthood v. Alaska, No. 3AN-97-6014 CT, slip op. at 14. 8 It is ironic, and indeed irrational, that under the Act, a young woman who wants to terminate her pregnancy is considered too immature to make this decision, but the same young woman is deemed mature enough to raise a child or place her child for adoption if she chooses to carry to term. See Kinsler Cert. & 30. 9 Two of the Legislature's other "findings" -- that parents may possess information essential to the treatment of the minor and may better insure that the minor receives adequate medical attention after her abortion -- are similarly insufficient. Given the relative safety of abortion as compared to continued pregnancy, the State simply cannot justify -- as a matter of medical necessity -- requiring minors to notify their parents of their decisions to terminate their pregnancies, while imposing no such requirement on those who carry to term. In addition, there is no need for such a requirement. The evidence shows that adolescents are fully capable of providing the medical information necessary for this relatively simple procedure. Tumberello Cert. & 13 (finding that adolescents are perfectly capable of giving a medical history, and noting that when he has consulted a teen's parents, they were generally no more informed than the teen herself); Holmes Cert. & 8; Kinsler Cert. & 29. Moreover, the evidence shows that teens are responsible about obtaining follow-up care -- in many cases more responsible than adults. Tumberello Cert. && 21-22; see also Johnson Cert. & 13; Holmes Cert. & 12. 10 Nor is there any evidence to suggest that adolescents are at a greater risk of negative psychological effects from abortion than are adult women, Adler Cert. && 20-24, 27-28; see also Zabin Cert. & 26, or that adolescents who have abortions are any more likely to experience psychological problems than are other adolescents, Adler Cert. && 25, 27; Zabin Cert. && 38-39. 11 Indeed, a study comparing adolescents who had abortions with those who carried their pregnancies to term revealed that those who terminated their pregnancies did as well as, and indeed usually better than, those who gave birth in terms of psychological wellness, as well as education, economic well-being, and preventing future pregnancies. Zabin Cert. && 32-41. 12 Research has shown that many adolescents who choose abortion, if anything, have more developed decision making skills than those who carry to term. Specifically, adolescents who have abortions have, on average, a better ability to understand future consequences and feel that they have more control over their lives than do their peers who choose to carry to term. Adler Cert. && 34-35; Zabin Cert. & 43 (explaining that, in her experience, adolescents who have abortions evidence their maturity by recognizing their condition, considering its consequences, and finding a health care provider, whereas minors who carry to term often evidence their immaturity by denying their pregnancy -- sometimes until they deliver -- and by failing to recognize the consequences of bearing a child at such a young age). 13 Judge Martin's experience in dealing with bypass petitions is instructive. As he explains:
Martin Cert. & 11. 14 See also AAP Statement at 746, 748 ("Credible reviews of available data conclude that there is no evidence that mandatory parental involvement results in the benefits to the family intended by the legislation. No studies show that forced disclosure results in improved parent-child relationships, improved communication, or improved satisfaction with the decision about pregnancy outcome.") (footnotes omitted) (attached to Graff Cert. as Exhibit A). 15 Indeed, the Legislature itself has recognized that requiring parental involvement may harm, rather than protect, minors' health. In enacting other statutes permitting minors to consent to their own medical care, the Legislature has acknowledged that a law mandating parental involvement will act as a barrier to adolescents seeking medical care. For example, the introduction to the statute enabling minors to consent to treatment for sexually transmitted diseases states:
3 N.J. Sess. Laws, Ch. 230 (Introductory Statement to N.J. Stat. Ann. ' 9-17A-4) (1968). As the California Supreme Court has recognized:
940 P.2d at 827. See generally Zabin Cert. && 11-16. 16 Justice O'Connor's opinion controls on the question of the legal sufficiency of the statute at issue in Hodgson because four Justices would have held that the statute was unconstitutional regardless of whether a minor could seek a judicial bypass of the notification requirement, while four other Justices would have upheld the statute even if it had contained no bypass option. Justice O'Connor therefore cast the deciding vote, upholding the statute only because it did contain a Bellotti II type bypass. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that where no single rationale commands a majority of the Court, the narrowest ground for the holding is controlling). 17 Indeed, the Act's reporting requirement is actually more burdensome on abused minors than the reporting requirements at issue in Hodgson and Miller. Rather than creating an exception for abused minors, as do the statutes at issue in Hodgson and Miller, the Act requires abused minors to go through the bypass process and prove to a judge that they should receive a waiver. Act ' 8(d)(2). It is difficult enough for minors to tell a physician that they have been abused. See Esquilin Cert. && 20, 23, 25; see also Hodgson, 497 U.S. at 460 (recognizing abused minor's reluctance to report sexual or physical abuse); Miller, 63 F.3d at 1463 (finding that many minors who are abused would not be able to use the abuse exception because they cannot talk about the abuse). It will be even more difficult for abused minors to confide in a complete stranger during a bypass hearing. Esquilin Cert. && 23; 25. 18 The deficiencies in the Act's bypass procedure raise additional constitutional concerns with respect to minors' privacy rights. As the New Jersey Supreme Court has recognized, the State may not compel the disclosure of confidential information unless the State's interest in the information outweighs the individual's right of privacy. In re Martin, 90 N.J. 295, 318, 447 A.2d 1290, 1302 (1982); see also Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 96, 609 A.2d 11, 24-25 (1992). "[E]ven if the governmental purpose is legitimate and substantial . . . the invasion of the fundamental right of privacy must be minimized by utilizing the narrowest means which can be designed to achieve the public purpose." Martin, 90 N.J. at 318, 447 A.2d at 1302 (quoting Lehrhaupt v. Flynn, 140 N.J. Super. 250, 262, 356 A.2d 35, 42 (App. Div. 1976)). Thus, even assuming, consistent with this right, that the State may compel a minor to disclose sensitive information about her pregnancy to a judge or a parent, the Act must fail, as the absence of adequate confidentiality guarantees during the bypass itself violates minors' privacy rights. See Martin, 90 N.J. at 322, 447 A.2d at 1304 (holding that State may only require applicants for casino licenses to disclose confidential information if it "institute[s] adequate safeguards against public disclosure" of this information). Copyright 1998, The American Civil Liberties Union |
