BERZON, Circuit Judge:
These appeals concern Idaho's law governing minors' access to abortion services. We conclude that the statute's definition of "medical emergency" is unconstitutionally narrow, and that, without an adequate medical exception, the parental consent statute is invalid.
A. The Statutes
The statutes at issue are 2000 Idaho Session Laws 7, Senate Bill No. 1299, and 2001 Idaho Session Laws 277, House Bill No. 340 (together, the "parental consent statute"), which together replaced, amended, or added sections 9-340G, 18-602, 18-604, 18-605, 18-608A, 18-609, 18-609A, 18-614, and 18-615 to the Idaho Code.
Section 18-602 sets forth legislative findings supporting the remainder of the statute; section 18-604 defines various terms used in the statute.
Section 18-605 establishes civil and criminal penalties for persons who perform abortions other than as permitted by the remainder of title 18, chapter 6 of the Idaho Code.
Section 18-609A specifies special consent prerequisites to performing an abortion upon a minor. The law requires either written, informed consent from the minor and her parent; written, informed consent from the minor along with proof of her emancipation; a court order; or the presence of an urgent medical emergency. Idaho Code § 18-609A(1)(a).
An abortion may be performed pursuant to the medical emergency provision only if the attending physician certifies the existence, in his medical judgment, of an emergency so urgent as to require performance of the abortion sooner than parental consent or a court order could be obtained. If an emergency abortion has been performed, the operating physician must provide
The term "medical emergency," central to our decision in this case, is defined as follows:
Id. § 18-609A(5)(c).
Section 18-609A(1)(b) specifies how a minor may bypass the parental consent requirement: The minor may file a bypass petition in the county of her residence or in the one in which the abortion is to be performed. The minor may assert in her petition either that she is sufficiently mature to provide her own consent to the procedure or that, notwithstanding her lack of maturity, the procedure would be in her best interest. If the minor requests aid in completing the petition, Idaho must provide it, through a guardian ad litem (who must be an attorney) or through some other person. Id. § 18-609A(1)(b)(i) & (ii).
At a hearing on the petition, the minor may be assisted by a guardian ad litem. If no attorney is available to fill that role, the court may appoint a nonattorney. Id. § 18-609A(1)(b)(iii). After holding a hearing, at which the court may hear any relevant evidence, the court must, within five days, determine whether the minor has shown sufficient maturity to be allowed to choose to end her pregnancy; whether, notwithstanding her failure to make that showing, an abortion would nonetheless be in her best interests; or whether neither of these circumstances obtains and the petition should be denied. Id. § 18-609A(1)(b)(iv). The five-day deadline can be delayed should the minor so request or for "other good cause." Id. § 18-609A(1)(d). The minor may within two days appeal an order denying her petition; the appeal is to receive expedited attention. Id. § 18-609A(1)(c).
The court hearing the petition is obligated to order an "investigation" if the evidence it receives in hearing the petition makes it aware of facts that would, if true, constitute a criminal offense under Idaho law or a violation of Idaho child-protection laws, "with due consideration for the confidentiality of the [bypass] proceedings." Id. § 18-609A(1)(b)(iv). A bypass petitioner's
Physicians accused of violating section 18-609A have an affirmative defense to prosecution if, prior to the procedure, they obtained identification from the woman seeking the abortion that a reasonable person would take to prove she was either emancipated or of the age of majority. Id. § 18-614(1). If the abortion was performed due to a medical emergency, the physician may obtain the identification after performing the abortion, and may claim the defense so long as he is unable to determine her age "after reasonable inquiry." Id. § 18-614(3).
Finally, section 18-615 provides a severability clause, asserting that the legislature "would have passed every section ... and each provision, section, subsection, sentence, clause, phrase or word" regardless of the invalidation of any other part of the statute.
B. The Litigation
This case began in June 2000, when Glenn H. Weyhrich, M.D., a Boise obstetrician-gynecologist, and Planned Parenthood of Idaho, Inc. ("Planned Parenthood"), a not-for-profit medical and educational service that does not perform abortions, filed suit challenging the then-new parental consent statute. The complaint sought to enjoin the defendants — the Idaho attorney general and the district attorney for Ada County, where Boise is located — from enforcing the entirety of the 2000 Act.
In response to the preliminary injunction in this case, the Idaho legislature enacted the 2001 Act. That Act, as relevant here, revised the felony provision; replaced the affirmative-identification requirement with the affirmative defense, described above; and expanded the venue provision to allow a bypass petition to be filed either in the minor's home county or in the county in which the procedure would be performed.
The plaintiffs' amended complaint, as revised to reflect the 2001 amendments, charged that the Idaho regime (1) provides an inadequate judicial bypass to the parental consent requirement (section 18-609A(1)(a)(iv) & (b)-(d)); (2) insufficiently provides for access to abortion where a minor woman's life or health is threatened by her pregnancy (section 18-609A(1)(a)(v)
After a trial in which the district court heard testimony from a number of physicians and other experts, the district court granted the plaintiffs partial permanent relief as follows: Judicial bypass. The court held the venue rule impermissibly burdensome, in light of Idaho's admission that the state had "no interest" that limiting venue would serve. Applying Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti II), the court also invalidated the requirement that a petitioner file her notice of appeal of a court's denial of her bypass petition within two days of its issuance, Idaho Code § 18-609A(1)(c), as the minor might well not receive the ruling (by mail) in time to file a timely notice.
The court also invalidated the mandatory-reporting requirement of section 18-609A(1)(b)(4). Under Idaho law, any impregnation of an unmarried, unemancipated minor will necessarily have resulted from a crime. See Idaho Code § 18-6101(1) (defining rape to include any intercourse with a "female ... under the age of eighteen"). The plaintiffs' argument, which the district court accepted, was that the near-certainty that a bypass proceeding would result in a criminal investigation of the minor's sex partner would compromise the confidentiality of the bypass proceedings and so would unconstitutionally chill minors' willingness to use the bypass procedure.
Medical emergency. The plaintiffs challenged section 18-609A(5)(c)'s definition of an emergency as "a sudden and unexpected physical condition which ... is abnormal and so complicates the medical condition of the pregnant minor as to necessitate the immediate causing or performing of an abortion." They argued that the subsection unconstitutionally precludes invocation of the emergency exception by minors with conditions that, while medically necessitating an abortion, were not sudden, unexpected, and abnormal. The district court rejected this argument, holding that "sudden" refers to the moment of diagnosis of the condition, not the condition itself; "unexpected" to the physician's inability to know precisely when the medical condition would become acutely emergent; and "abnormal" to the fact that in an ordinary pregnancy there is no need for an abortion. As thus interpreted, concluded the district court, the statute is no more restrictive than the medical emergency provision upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 880, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). On this basis, the court upheld the emergency provision in its entirety. The district court also rejected the plaintiffs' alternative argument that the medical emergency provision was unconstitutionally vague.
Post-emergency notification. The district court invalidated the post-emergency notification provision in its entirety as an infringement of the minor's right to confidentiality. It held that even the provision allowing physicians to report to law enforcement rather than the minor's parents in limited circumstances would ultimately lead to an infringement of the minor's right to confidentiality, and that nonabused as well as abused minors have a
Physician liability. The court upheld sections 18-605, 18-614, and the other provisions related to civil and criminal liability for those who perform unlawful abortions. Although recognizing that the statutory regime was "not a model of clarity," the court found that section 18-605(3)'s scienter requirement ensured that the statute was sufficiently definite to be enforced lawfully.
Severability. Finally, the district court, applying Idaho severability law and the statute's severability clause, found that the invalid provisions were severable and that the remainder of title 18, chapter 6 of the Idaho Code could be upheld not-withstanding the invalidity of some parts of 18-609A.
Consistent with these rulings, the final judgment of the district court permanently enjoined the enforcement of (1) the first sentence of section 18-609A(1)(b)(i); (2) the first sentence of section 18-609A(1)(c); (3) the final paragraph of section 18-609A(1)(b)(iv); and (4) all but the first sentence of section 18-609A(1)(a)(v), leaving the remainder of the statute in place. The plaintiffs appealed, seeking the relief the district court denied them, and the defendants cross-appealed the injunction, except with respect to the two-day notice-of-appeal requirement. With that one exception, we are therefore presented with all the issues that were before the district court.
A. Challenges to the Parties
As a threshold matter, the state raises several issues concerning whether this suit can go forward at all, or can go forward only in a truncated form, because the parties are not properly before the court. The contentions are: (1) neither plaintiff has standing to challenge the statute; (2) one of the two defendants, Idaho's attorney general, is not a proper defendant to any claim because he does not enforce the challenged law; and (3) the other defendant, the Ada County prosecutor, is not involved in the administration of the judicial bypass provision and so is only properly a defendant for some of the claims. The district court held that Weyhrich had standing to challenge the entire statute; that, because Weyhrich had standing, there was no need to decide Planned Parenthood's right to sue; and that both defendants were proper. We review those determinations de novo. Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir.2003).
1. Dr. Weyhrich
A plaintiff has standing to sue under Article III of the Constitution only when he can allege (1) an "actual or imminent," "concrete and particularized" "injury in fact," (2) causally connected to the defendants' conduct, that (3) will "likely" (and not "merely speculative[ly]") be redressed by a favorable judgment. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Weyhrich has stated his clear intention to continue to perform abortions for his patients, of whom some are minors. He has alleged a sufficiently concrete and imminent injury — possible prosecution and imprisonment — to challenge the provisions that ban abortion providers from performing abortions on minors except in accord
Weyhrich's potential punishment for violating the parental consent statute extends to all of the challenged provisions. As his complaint notes, should any aspect of the bypass provisions, including those not on their face directed toward physicians, prevent or chill a minor from seeking an abortion she would otherwise seek, she will not seek his care. By discouraging potential patients from engaging his services, these provisions could result in a primary injury to Weyhrich. For example, should a minor desiring an abortion decline to seek a bypass for fear that her boyfriend will be sent to prison if a judge learns that the boyfriend impregnated her, she may never consult Weyhrich and never obtain a procedure Weyhrich would recommend as medically indicated. Weyhrich's own interests, both financial and professional, in practicing medicine pursuant to his best medical judgment, are thus affected by a statutory provision that he alleges violates the federal constitutional rights of potential abortion patients. Such a threatened injury in fact is neither speculative nor inchoate. Weyhrich therefore has Article III standing to raise each of his challenges.
As a prudential matter, even when a plaintiff has Article III standing, we ordinarily do not allow third parties to litigate on the basis of the rights of others. See Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir.2002), cert. denied, 538 U.S. 1031, 123 S.Ct. 2073, 155 L.Ed.2d 1060 (2003). Since at least Singleton v. Wulff, however, it has been held repeatedly that physicians may acquire jus tertii standing to assert their patients' due process rights in facial challenges to abortion laws. 428 U.S. 106, 117-18, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion) ("[I]t generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision...."); cf. Griswold v. Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (allowing physician to assert privacy rights of patients because of the confidential nature of the relationship and because the rights of the latter were "likely to be diluted or adversely affected" if they could not be asserted by the physician). Indeed, physicians and clinics performing abortions are routinely recognized as having standing to bring broad facial challenges to abortion statutes. See, e.g., City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 440 n. 30, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983)
2. Planned Parenthood
Planned Parenthood's standing poses different questions. Unlike Planned Parenthood affiliates in several other states who have been found to have standing to challenge abortion regulations, see, e.g., Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 465 (7th Cir.1998), the Idaho chapter does not provide abortion services directly. Instead, the Idaho chapter provides only counseling, contraceptive, and referral services.
Idaho contends that Planned Parenthood therefore lacks standing. Unlike Weyhrich, Planned Parenthood's conduct is not threatened by enforcement of the statute, and it can, under Idaho law, have no abortion "patients" whose interests it may espouse. If Planned Parenthood can enunciate no more than an "ideological" interest in seeing the statute invalidated, it lacks standing to challenge it. Id.
On appeal, Planned Parenthood articulates no independent theory for its standing. It instead piggybacks on Weyhrich, defending the district court's conclusion that because Planned Parenthood shares an attorney with Weyhrich, its presence in the suit poses no threat of enhanced legal fees, and that because Weyhrich has standing, we need not decide whether Planned Parenthood may maintain this suit.
We agree that there is no reason to address Planned Parenthood's standing. Where the legal issues on appeal are fairly raised by "one plaintiff [who] had standing to bring the suit, the court need not consider the standing of the other plaintiffs." Laub v. U.S. Dep't of the Interior, 342 F.3d 1080, 1086 (9th Cir.2003) (citing and explaining Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981), and Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)); Guam Soc'y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1369 (9th Cir.1992); see also Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d 127, 147 n. 10 (3d Cir.2000). As our jurisdiction and our duty to answer the questions raised here would be unaffected by the resolution of Idaho's challenge to Planned Parenthood's standing, we decline to decide the issue.
3. The Attorney General and County Prosecutor
The Idaho attorney general denies having authority to enforce any part of the statute. The Ada County prosecutor acknowledges, correctly, that he is a proper defendant with regard to those provisions creating the potential for prosecution, see Idaho Code § 31-2604(2) (2003), but denies any involvement in judicial bypass proceedings or the administrative penalties that the Idaho Board of Medicine can impose under section 18-605(2).
Whether these officials are, in their official capacities, proper defendants in the suit is really the common denominator of two separate inquiries: first, whether there is the requisite causal connection between their responsibilities and any injury that the plaintiffs might suffer, such that relief against the defendants would provide redress, see Lujan, 504 U.S. at 560, 112 S.Ct. 2130; Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); and second, whether our jurisdiction over the defendants is proper under the doctrine of Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which requires "some connection" between a named state officer and enforcement of a challenged state law. See Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir.1992). "This connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Id.
State attorneys general are not invariably proper defendants in challenges to state criminal laws. Where an attorney general cannot direct, in a binding fashion, the prosecutorial activities of the officers who actually enforce the law or bring his own prosecution, he may not be a proper defendant. See, e.g., Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir.1992) (doubting that the "general supervisory powers" of the California attorney general present a sufficient connection to the enforcement of a search and seizure statute); S. Pac. Transp. Co. v. Brown, 651 F.2d 613, 614 (9th Cir.1980) (holding that the Oregon attorney general, who had the power to "consult with, advise, and direct the district attorneys," had an insufficient connection to the challenged statute, because his advice to prosecutors that the statute was unconstitutional could not bind them and he could not bring a prosecution on his own).
Under Idaho law, the attorney general may "assist" county prosecutors in a "collaborative effort," but may not "assert[ ] dominion and control" over prosecutions against the county prosecutor's wishes. Newman v. Lance, 129 Idaho 98, 922 P.2d 395, 399-401 (1996); see also Idaho Code § 67-1401(7).
In the circumstances of this case, we need not decide whether the two are proper defendants for each and every claim appellants make, because, under our ensuing analysis, a defect involving the parental consent provisions is fatal to the entire statute. Having decided that the suit by Weyhrich against the county prosecutor and the attorney general presents a justiciable case or controversy regarding the outcome-determinative facet of the statute, we turn to the merits now.
B. Scope and Standard of Review
The constitutionality of a state statute is a question of law, which we review de novo. Delano Farms Co. v. Cal. Table Grape Comm'n, 318 F.3d 895, 897 (9th Cir.2003). Facial challenges to state statutes are usually guided by the rule of United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which requires "the challenger [to] establish that no set of circumstances exists under which the Act would be valid." That rule gives way, however, in at least two circumstances: the First Amendment doctrine of overbreadth and the constitutional standards applicable to abortion cases. See Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025, amended by 193 F.3d 1042 (9th Cir.1999) (Lawall I).
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992),
1. The Statute
a. Minors' Access to Abortion
Our approach to abortion regulation is directed by a number of guideposts set down in the Supreme Court's cases on the subject, beginning with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and continuing through the Court's most recent abortion ruling, Stenberg v. Carhart, 530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). Following the trajectory set by those cases, we conclude that Idaho's parental consent statute does not provide an adequate exception to the requirements that can impose a time delay upon a minor whose life or health depends on quick termination of her pregnancy.
Adult women have a Fourteenth Amendment right to terminate a pre-viability pregnancy. Casey, 505 U.S. at 846, 112 S.Ct. 2791;
Minor women also possess a right to obtain an abortion. With regard to minors, however, the state has additional interests that may justify regulation of the manner in which they determine to undergo the procedure. Danforth, 428 U.S. at 74, 96 S.Ct. 2831. In the interest of fostering family involvement in her decision whether to undergo an abortion, a state may require a minor to obtain a parent or guardian's consent. Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035. It may not, however, supply the parent with an "absolute ... veto," but must instead provide some means by which a pregnant minor may bypass the consent requirement. Id. (quoting Danforth, 428 U.S. at 74, 96 S.Ct. 2831). More specifically, the Constitution requires that a minor be able to bypass a parental consent requirement when she can establish that "either: (1) she is mature enough and well-informed enough to make her abortion decision ... independently of her parents' wishes; or (2) even if she is not able to make this decision independently, the desired abortion would be in her best interests." Lawall I, 180 F.3d at 1027-28 (citing Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035); see also Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II).
One principle announced in Roe, which has remained constant before and after Casey, applies to adults and minors alike: Any abortion regulation must contain adequate provision for a woman to terminate her pregnancy if it poses a threat to her life or health. See Stenberg, 530 U.S. at 930, 120 S.Ct. 2597; id. at 947, 120 S.Ct. 2597 (O'Connor, J., concurring); Casey, 505 U.S. at 846, 112 S.Ct. 2791; Roe, 410 U.S. at 163-64, 93 S.Ct. 705. An adequate health exception, that is, is a per se constitutional requirement.
As the Court's approach in Stenberg makes clear, whether such an exception exists requires an analysis separate from any undue burden inquiry. See 530 U.S. at 930, 120 S.Ct. 2597. In Stenberg, the Court struck down a Nebraska law outlawing a "partial birth" abortion technique on the "independent" grounds that it (1) lacked a health exception and (2) "impose[d] an undue burden on a woman's ability to choose a[n abortion by the prohibited method], thereby unduly burdening the right to choose abortion itself." Id. (internal quotation marks and citation to Casey omitted). See also Planned Parenthood of the Rocky Mountains Servs. Corp. v. Owens, 287 F.3d 910, 918 n. 7 (10th Cir.2002) (understanding Stenberg to require separate "health exception" and "undue burden" inquiries).
There is little definitive law on what constitutes an adequate emergency medical exception. Lawall I, 180 F.3d at 1032. Under the law that exists, however, the importance of protecting a pregnant woman's life and health cannot be overstated. Under Casey, an abortion regulation is impermissible if "it forecloses the possibility of an immediate abortion despite some significant health risks" to the pregnant woman. 505 U.S. at 880, 112 S.Ct. 2791 (emphasis added). Even after fetal viability, when the state's interest in regulation is strongest, the Court has held that the state may regulate "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 879, 112 S.Ct. 2791 (quoting Roe, 410 U.S. at 164-165, 93 S.Ct. 705) (emphasis added). Moreover, under Casey's undue burden framework, once such a medical condition exists, the constitutional inevitability of an abortion defeats the state's interests in potential life, making it extremely likely that any regulation that affects the procedure, even if the procedure can eventually go forward, is unduly burdensome in light of the state's limited interests. See Stenberg, 530 U.S. at 930-31, 120 S.Ct. 2597; Casey, 505 U.S. at 880, 112 S.Ct. 2791.
Like the plaintiffs here, those in Casey argued that Pennsylvania's abortion statute did not exempt all situations in which an immediate abortion would be medically recommended. The Court in Casey agreed with the plaintiffs that, were the statute to "interfere" at all in those situations, it must be invalidated, but agreed with the Third Circuit that the medical-emergency exception Pennsylvania provided could be interpreted to encompass all of the medical conditions that might require immediate abortion. Casey, 505 U.S. at 880, 112 S.Ct. 2791.
A health exception is as requisite in statutory or regulatory provisions affecting only minors' access to abortion as it is in regulations concerning adult women. See Owens, 287 F.3d at 918 (citing Danforth, 428 U.S. at 74, 96 S.Ct. 2831). Idaho does not contend otherwise. It argues, rather, that the medical emergency exception to the parental-consent provision of section 18-609A, and the corresponding
b. Adequacy of the Health Exception
The Idaho statute allows physicians to perform abortions on minors who have not secured their parent's or a court's permission only when "[a] medical emergency exists for the minor so urgent that there is insufficient time for the physician to obtain the informed consent of a parent or a court order and the attending physician certifies such in the pregnant minor's medical records." Idaho Code § 18-609A(1)(a)(v). The physician must record the factual basis for his determination. Id.
"Medical emergency" is in turn defined as
Idaho Code § 18-609A(5)(c)(i). A medical emergency cannot be:
Idaho Code § 18-609A(5)(c)(ii). The statute therefore appears to allow an abortion without proper consent only when the minor (1) has a medical condition that is (a) "sudden," (b) "unexpected," (c) "abnormal," that is, "not expected to occur in normal pregnancies of women of similar age, physical condition and gestation," and (d) not primarily psychological or psychiatric; that (2) necessitates an immediate abortion to save her life or prevent a serious risk of permanent, substantial injury to a major bodily function; and that (3) must be performed for those reasons sooner than consent could be secured.
Plaintiffs claim that these strictures make the emergency medical exception constitutionally inadequate. As they read the statute, it requires the patient's condition — not the fact that the condition necessitates an immediate abortion — to be sudden, unexpected, and abnormal. As we discuss later, plaintiffs describe a number of medical conditions that are emergencies in the usual sense, in that once diagnosed they require an immediate abortion to preserve the mother's life or health, but not in the statutory one, as they are not sudden, unexpected, and abnormal. Ergo, they argue, the statute's definition of "medical emergency" renders the maternal health exception unconstitutionally narrow.
Idaho's disagreement with this line of argument is with plaintiffs' interpretation of the statute, not with their medical evidence. The state does not contend that, were we to agree with plaintiffs' interpretation of the function of the qualifiers "sudden," "unexpected," and "abnormal" in the statute, medical conditions such as those plaintiffs identify would still satisfy the statute. Instead, Idaho's position, with which the district court largely agreed, is that "sudden" refers, not to the pregnant woman's physical condition, but to the "moment of diagnosis" of that condition
(i.) The Plain Language of the Statute
As we are construing a state statute, our role is to interpret the law as would the Idaho Supreme Court. In re Kolb, 326 F.3d 1030, 1037 (9th Cir.2003). Our interpretation of the medical emergency provision must begin with the text of the statute. Purco Fleet Servs., Inc. v. Idaho State Dep't of Finance, 140 Idaho 121, 90 P.3d 346, 349 (2004). Accordingly, words "should be given the same meaning in a statute as they have among the people who rely on and uphold the statute. Every word, clause and sentence should be given effect, if possible. When construing a statute, its words must be given their plain, usual and ordinary meaning." Id. at 349-50 (citations omitted).
If the plain language does not conclusively determine the statute's meaning, we must presume that the Idaho legislature both intended to and did in fact act constitutionally, see Akron II, 497 U.S. at 514, 110 S.Ct. 2972; Akron I, 462 U.S. at 441, 103 S.Ct. 2481, and indulge in any reasonable construction that can save the statute from invalidity. Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895). We may not, however, "rewrite" the statute to save it, United States v. Buckland, 289 F.3d 558, 564 (9th Cir.2002) (en banc), and any narrowing construction of a state statute adopted by a federal court must be a "reasonable and readily apparent" gloss on the language, Stenberg, 530 U.S. at 944-45, 120 S.Ct. 2597 (internal quotation marks and citations omitted).
This litigation focuses on the terms "sudden and unexpected" and "abnormal" in the Idaho statute's definition of "medical emergency." In Casey, the Supreme Court upheld a medical emergency definition which was somewhat similar to that provided in section 18-609A(5)(c) but lacked any requirement that the condition giving rise to the emergency be sudden, unexpected, or abnormal. See Casey, 505 U.S. at 879, 112 S.Ct. 2791. The Pennsylvania statute upheld in Casey defines "medical emergency" as
The medical emergency provision here, however, is neither ambiguous nor substantially the same as the medical emergency provision approved in Casey. The Idaho statute states that a physician is allowed to perform the procedure without delay only for those medical conditions that a prudent physician would take to necessitate an immediate abortion and that are "sudden and unexpected" and "abnormal." The constitutionality of the challenged provision thus stands or falls on whether the limitation to "sudden and unexpected" and "abnormal" conditions, not contained in the Casey-approved statute, excludes some conditions that indicate the need for an immediate abortion to protect a woman's health. The record shows that it does.
For a number of medical conditions, as physicians offered as expert witnesses by both the plaintiffs and the state explained, the onset of the underlying condition and its diagnosis come at different times. If the condition is discovered early enough, the situation might not "necessitate the immediate causing or performing of an abortion." Idaho Code § 18-609A(5)(c)(i). There might not be a need for an abortion, or it might be possible to schedule a non-emergency abortion. Often, however, these conditions cannot be, or are not, diagnosed until the patient suffers acute symptoms.
Idaho's experts disputed that the terms "sudden" and "unexpected" would necessarily exclude those conditions, as they read the Idaho statute to focus on the time of diagnosis, not the time a medical condition actually begins to develop. Idaho's experts did not, however, dispute any of the underlying medical facts, such as the etiology, method of diagnosis, or urgency of performing an abortion once the conditions are detected.
Consonant with the Idaho rule that we look to the meanings of statutory terms as they are used by the regulated community, see Purco Fleet, 90 P.3d at 349, Idaho directs our attention to several medical dictionaries and reference works defining "emergency" with the aid of the words "sudden" and "unexpected." Idaho argues that these definitions show that the phrase "sudden and unexpected" does not limit, but merely explicates, the term "emergency." The argument is structurally similar to the contention that using the term "motor vehicle" in the definition of "automobile" would not limit the scope of "automobile." The Idaho statute, according to this view, means nothing different than the Pennsylvania statute upheld in Casey. What appear to be restrictions on the sorts of urgent medical circumstances that would constitute an emergency under the statute, Idaho argues, are only illustrative of the ordinary meaning of "emergency" that the statute employs. There are three problems with this position:
First, Idaho's attempt to avoid giving content to the words "sudden," "unexpected," and "abnormal" is incompatible with the statute.
Section 18-609A(5)(c)(i) defines a medical emergency as a "sudden and unexpected physical condition which ... is abnormal and ... necessitate[s] the immediate causing or performing of an abortion" (emphasis added). The district court's construction, defended by Idaho, would have "sudden" describe the moment of diagnosis
Idaho posits that the substantive provision in section 18-609A(1)(a)(v) — requiring that the minor's physical condition necessitate an immediate abortion — cures any unconstitutional narrowing worked by the inclusion of "sudden and unexpected." The plain meaning of the text, however, is that, of all the physical conditions that might necessitate an immediate abortion, only for the "sudden and unexpected" ones is a physician allowed to perform the procedure on a minor who has not secured parental or judicial consent.
The definition further focuses on whether the condition is "abnormal," Idaho Code § 18-609A(5)(c)(i), by excluding "[a]ny physical condition that would be expected to occur in normal pregnancies of women of similar age, physical condition and gestation," id. § 18-609A(5)(c)(ii)(1) (emphasis added). We interpret words within the same statute in light of one another, Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 807 (9th Cir.2003), and so must construe "abnormal" in section 18-609A(5)(c)(i) alongside "normal" as used in section 18-609A(5)(c)(ii)(1).
The wording of section 18-609A(5)(c)(ii)(1) is, to say the least, confusing: It states that a "physical condition" cannot be a "medical emergency" if "expected" to occur in a "normal" pregnancy of women of, inter alia, a "similar ... physical condition." Whenever a pregnancy is "normal," women of similar "physical condition[s]" would be "expected" to have "similar ... physical condition[s]," even if one supposes, to avoid tautology, that the first reference to "physical condition" means one initially occurring during the pregnancy, while the second refers to a condition that existed prior to the pregnancy. Yet, the evidence at trial showed that a "normal" pregnancy can trigger a need for an immediate abortion in some or most women with a given prior general "physical condition" (Marfan's syndrome, for example, or leukemia). Hence, the definition as a whole appears to limit the medical emergency provision to abnormal pregnancies, as opposed to emergencies triggered by the combination of a pre-existing medical condition and a normal pregnancy. For this reason as well, it excludes some situations in which Casey demands an abortion be available to women who need one.
Second, Idaho's argument invites us to regard several grammatically indispensable words in the statute as surplusage. On this view, if "sudden and unexpected" were deleted, the statute would have precisely the same meaning as it does with that modifier. Yet "[i]t is `a cardinal principle of statutory construction' that `a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (quoting Duncan v.
Further, courts are especially reluctant to discard as surplusage the "pivotal" words of a statute. See Duncan, 533 U.S. at 174, 121 S.Ct. 2120. Were the Idaho legislature not intending a medical emergency definition narrower than the one approved in Casey and used in the majority of states, surely it would have taken the safe road and enacted a provision already deemed valid by the Supreme Court. As noted,
Third, Idaho's proffered dictionary definitions do not illuminate the meaning of the statute, much less, as Idaho argues, show that "sudden and unexpected" merely explains "medical emergency" in a commonsense fashion. Dorland's Illustrated Medical Dictionary 584 (29th ed.2000) defines an emergency as "an unlooked for or sudden occasion; an accident; an urgent or pressing need." This definition is consistent with common usage but not with the statute. Unlike Dorland's, the statute defines an emergency not as an "occasion" — an event in time — but as a "condition" of the pregnant woman. That a woman's distress comes on suddenly does not mean that her physical condition came on suddenly. The Dorland's definition thus bolsters, rather than detracts from, the interpretation of the statute as limited to only certain medical emergencies.
Taber's Cyclopedic Medical Dictionary 686 (19th ed.2001), like Idaho, conflates the underlying medical condition with the emergency situation, defining an emergency as both "[a]ny urgent condition perceived by the patient as requiring immediate medical or surgical evaluation or treatment" and as "[a]n unexpected[,] serious occurrence that may cause a great number of injuries ..." (emphasis added). Although it thereby provides some support for Idaho's arguments that interchange the underlying condition with the emergency situation, it otherwise runs counter to the Idaho statute, which does not provide that the patient's perception
Merriam-Webster's Medical Desk Dictionary 207-08 (1986) gives as its definition: "an unforeseen combination of circumstances or the resulting state that calls for immediate action: as a: a sudden bodily alteration (as a ruptured appendix or surgical shock) such as is likely to require immediate medical attention[;] b: a usu[ally] distressing event or condition that can often be anticipated or prepared for but seldom exactly foreseen [.]"
Putting to one side the category mistake
We therefore conclude that, given the plain meaning of the medical-emergency definition, the emergency restriction is unconstitutionally narrow. For some minor women, the statute will unconstitutionally allow Idaho "to interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health," which the "essential holding of Roe forbids[.]" Casey, 505 U.S. at 880, 112 S.Ct. 2791.
(ii.) Limiting Construction
Ordinarily, in construing a state statute, we follow that state's rules of statutory interpretation. In re Kolb, 326 F.3d at 1037. Under Idaho law, where a statute is unambiguous, there is "no occasion for
The Supreme Court, however, has instructed us to assume that state courts will endeavor to construe abortion statutes constitutionally, Akron I, 462 U.S. at 441, 103 S.Ct. 2481, and the Court itself plainly endeavors to abide by any reasonable constitutional interpretation that is available. See, e.g., Stenberg, 530 U.S. at 944-45, 120 S.Ct. 2597; Casey, 505 U.S. at 880, 112 S.Ct. 2791. Hence, while under Idaho law the plain-meaning inquiry would almost surely be the end of the matter, we also consider whether, supposing the statute to be in some respect ambiguous, a limiting construction is available.
After careful consideration, we conclude that Idaho's reading of the statute, adopted by the district court, is simply not "fairly possible," see Arizonans for Official English v. Arizona, 520 U.S. 43, 78, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), much less "readily apparent," Stenberg, 530 U.S. at 944-45, 120 S.Ct. 2597. As already discussed, the only constitutional construction we have been offered, and the only one we can adduce, would read "sudden and unexpected" to modify a subject, the moment of diagnosis, that does not appear anywhere in the statute. Alternatively, that construction would read "sudden," "unexpected," and "abnormal" out of the statute. There simply is no meaning that can be given to "sudden," "unexpected," and "abnormal" that would make sense of the grammar of the provision, avoid surplusage, and ensure that the medical emergency definition would encompass the medical circumstances, described above, that can necessitate an immediate abortion.
The Idaho legislature must have "know[n] how to provide a medical-emergency exception," Thornburgh, 476 U.S. at 771, 106 S.Ct. 2169, since, at the time the law in question was enacted, more than half of the states had adopted, and Casey had upheld, language without the added strictures Idaho has included. The only way to save the statute would be to ignore those added, operative words, a step that is not "reasonable and readily apparent," Stenberg, 530 U.S. at 944, 120 S.Ct. 2597 (quotation marks and citation omitted). See also Duncan, 533 U.S. at 174, 121 S.Ct. 2120 (rejecting a proposed interpretation that would give a statute precisely the meaning it would have if a word were deleted); United States v. Handy, 761 F.2d 1279, 1280 (9th Cir.1985) (same).
Still, the limitation of federal courts to "reasonable and readily apparent" interpretations of state statutes is an important one. State courts have more latitude to interpret state statutes to avoid constitutional invalidity. When federal courts rely on a "readily apparent" constitutional interpretation, plaintiffs receive sufficient protection from unconstitutional application of the statute, as it is quite likely nonparty prosecutors and state courts will apply the same interpretation. Where federal courts apply a strained statutory construction, however, the state courts and non-party prosecutors, not bound by a federal court's reading of a state statute, are free to, and likely to, reject the interpretation and convict violators of the statute's plain meaning. The result is inadequate relief from unconstitutional prosecution for plaintiffs who do not or cannot sue every conceivable state prosecutor who could institute proceedings against them.
This is not to say, of course, that federal courts may never construe state statutes. Where, however, as here, any limiting construction would impinge upon the separation of powers within Idaho's government by construing a statute against the legislature's likely intent, the equitable discretion of federal courts asked to enjoin state statutes is best employed by avoiding unnecessary, and ultimately meaningless, forays into rewriting state laws. It is enough for us to observe that the plain meaning of the statute is unconstitutional, and that any constitutional construction is not "readily apparent."
(iii.) Interaction of the Medical Emergency Definition and Criminal Liability Provision
Finally, even if the definition of "medical emergency" could be salvaged, the substantive provision for emergency abortions would still be unconstitutional. Section 18-609A(1)(a)(v) allows such an abortion only when the emergency is "so urgent that there is insufficient time for the physician to obtain the informed consent of a parent or a court order[.]" In Lawall I, we considered Arizona's very similar parental-consent statute. That law's medical-emergency exception also hinged upon the availability of parental or judicial consent, and also subjected a physician to potential criminal liability should he perform an abortion in violation of the statute. Although the Arizona statute only required that the doctor certify that, in his "good faith clinical judgment," insufficient time existed to secure a parental or judicial bypass, we held that the uncertainty over precisely how long a judicial bypass in Arizona might take rendered the provision void for vagueness. 180 F.3d at 1032-33.
As in Lawall I, Idaho's statute provides no absolute deadline by which appeals from a denial of judicial bypass will be completed. The Arizona statute did not provide deadlines that would support a "reasonable estimate" of how long a bypass
Idaho argues that any vagueness challenge is mooted by the fact that section 18-605(3)'s criminal provision applies only where a physician "knowingly" violates the law. To be subject to prosecution, a doctor would, under the state's position, need to have performed an emergency abortion while knowing there was sufficient time to obtain a bypass.
Again, the medical emergency provisions upheld in Casey (and the one invalidated on other grounds in Lawall I) plainly included a subjective standard — an allowance that a physician may act by his own medical judgment so long as he acts in good faith — rather than the objective, "prudent physician" standard Idaho chose. See Casey, 505 U.S. at 879, 112 S.Ct. 2791; Lawall I, 180 F.3d at 1032. For the same reasons we were reluctant to read "sudden," "unexpected," and "abnormal" out of the statute, we are similarly reluctant to suppose that Idaho's unique statutory
More importantly, the structure of the medical emergency provision fails to abide by Casey's explanation of why an emergency exception must be provided in the first place. Casey's undue burden test is meant to reflect the dual, sometimes antagonistic considerations, of the woman in obtaining an abortion and of the state in protecting her health and "the life of the fetus that may become a child." Casey, 505 U.S. at 846, 112 S.Ct. 2791. Where the pregnancy is that of a minor, the state has additional interests in protecting the minor from decisions she is too immature to make and in protecting her family's role in those decisions. See Bellotti II, 443 U.S. at 633-34, 99 S.Ct. 3035. Casey explains that where the medical circumstances require that an abortion be performed, the state's interests in potential life must give way altogether to the pregnant woman's health. See 505 U.S. at 899, 112 S.Ct. 2791.
The state does retain interests in the pregnant minor's wellbeing even when a medical emergency necessitating an abortion materializes. However, the emergency-consent provision in the statute before us contrasts with Idaho's general provision for emergency medical consent:
Idaho Code § 39-4303(c). Thus, if parental consent is ordinarily necessary, but not "readily available" in a particular instance, a physician may, except with regard to abortion, go forward with an indicated medical procedure.
Idaho has provided no explanation, and we can find none in the precedents, for why a state has a greater interest in involving a pregnant minor's family in an emergency abortion necessary to protect the minor's life or health than in any other medical emergency requiring immediate treatment. Yet, section 18-609A(1)(a)(v) precludes a physician from performing an
We conclude that section 18-609A(1)(a)(v), in conjunction with section 18-605, provides an inadequate health exception for minors who require abortions to save their lives or avert serious threats to their health.
As noted at the outset, Weyhrich and Planned Parenthood raise substantive challenges to several other provisions of sections 18-605, 18-609A, and 18-614. We need not address any of them, however. The parental consent requirement cannot stand in the absence of a valid medical emergency exception. The parental consent statute concludes with a meticulous severability provision:
Idaho Code § 18-615. The legislature invites us to save as much of the statute as possible by invalidating as little of it as necessary. No severance, however, can avoid invalidation of the medical emergency provision as a whole. Once that provision is stricken, the remainder of the statute would be plainly unconstitutional. See Stenberg, 530 U.S. at 931, 120 S.Ct. 2597; Lawall I, 180 F.3d at 1033.
We are guided, of course, by principles of federalism, which counsel that "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it." Brockett, 472 U.S. at 502, 105 S.Ct. 2794. As almost every operative provision of the parental consent statute is before us in this appeal, however, we have little choice but to consider the ramifications of the invalid medical-emergency exception for the whole of the law.
In doing so, we must follow the approach the Idaho Supreme Court would take to the severability question. Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996). Under Idaho law,
In Boundary Backpackers v. Boundary County, 128 Idaho 371, 913 P.2d 1141, 1148 (1996), for example, that court considered a county ordinance with a savings clause nearly as explicit as the one here.
We thus must first consider whether any "section, subsection, sentence, clause, phrase, or word" of the medical-emergency provisions could be stricken without "emasculat[ing]" their obvious purpose. Boundary Backpackers, 913 P.2d at 1148. For the same reasons we found the definition of "medical emergency" not susceptible to a narrowing construction, no such severance is possible. Omitting the language that renders the emergency exception unconstitutionally narrow would render the relevant provisions as follows (with the deleted words stricken through):
Putting to one side our previously expressed concern that federal courts ought not be redrafting state statutes at the level of individual words, see Cal. Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1147 (9th Cir.2001), it is apparent that this rewrite would defeat the obvious purpose of the relevant provisions by removing indispensable qualifications the Idaho legislature intended to put on the circumstances in which emergency abortions could be provided to minors. As discussed at length earlier, the fact that Idaho chose to provide a novel definition, narrower than those given in more than half of its sister states, obligates us to consider what it meant by making that considered choice. The language that would need to be stricken from section 18-609A(1)(a)(v), for example, is indispensable to the legislature's effort to ensure that parental or judicial consent would be secured prior to an abortion wherever it would be possible to do so. This is not merely an incidental feature of the statutory scheme; on the contrary, it is its central purpose, as attested by section 18-602(g)'s declaration that a minor's best interests are "always served when there is careful consideration of the rights of parents in rearing their child ..." (emphasis added). Defense of this view of the minor's best interests is the crux of the statute, and the language that would need to be stricken is integral to it.
Since the medical-emergency provision cannot be saved by a narrowing construction or selective invalidation, we must invalidate it altogether. The question, then, is whether the remainder of the statute can still stand.
The answer to that question is clearly "no." Without any medical emergency exception, an abortion regulation that could impede a woman's access to a medically necessary abortion is unconstitutional. Stenberg, 530 U.S. at 931, 120 S.Ct. 2597; Lawall I, 180 F.3d at 1033.
Pursuant to Casey, its successors, and Idaho severability law, we conclude that the whole of the statute must therefore be declared invalid. To avoid unnecessary adjudication of difficult constitutional questions, we therefore do not consider whether the various other provisions of the statute that the plaintiffs challenge would be constitutional were the statute to contain an adequate emergency exception.
In regulating the performance of abortions on minors, Idaho has acted in pursuit of legitimate interests. The vehicle it has chosen to further those interests, however, fails to provide sufficient access to an abortion for minor women whose life or health necessitate one. We therefore REVERSE the district court as to the sufficiency of the medical-emergency exception and REMAND for entry of the appropriate declaratory relief and injunction against enforcement of the statute.
APPENDIX: CHALLENGED STATUTORY PROVISIONS
Idaho Code § 18-605 (2002)
Unlawful abortions — Procurement of — Penalty.
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Idaho Code 18-609A (2002)
Consent required for abortions for minors.
(1) (a) No person shall knowingly cause or perform an abortion upon a minor unless:
(3) In addition to any other cause of action arising from statute or otherwise, any person injured by the causing or performing of an abortion on a minor in violation of any of the requirements of paragraph (a) of subsection (1) of this section, shall have a private right of action to recover all damages sustained as a result of such violation, including reasonable attorney's fees if judgment is rendered in favor of the plaintiff.
(4) Statistical records.
(5) As used in this section:
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Idaho Code § 18-614 (2002)
Defenses to prosecution.
(1) No physician shall be subject to criminal or administrative liability for causing or performing an abortion upon a minor in violation of any provision of subsection (1) of section 18-609A, Idaho Code, if prior to causing or performing the abortion the physician obtains either positive identification or other documentary evidence from which a reasonable person would have concluded that the woman seeking the abortion was either an emancipated minor or was not then a minor and if the physician retained, at the time of receiving the evidence, a legible photocopy of such evidence in the physician's office file for the woman. This defense is an affirmative defense that shall be raised by the defendant and is not an element of any crime or administrative violation that must be proved by the state.
(2) If, due to a medical emergency as defined in subsection (5) of section 18-609A, Idaho Code, there was insufficient time for the physician to confirm that the woman, due to her age, did not then come within the provisions of subsection (1) of section 18-609A, Idaho Code, the physician shall not be subject to criminal or administrative liability for performing the abortion in violation of subsection (1)(a)(v) of section 18-609A, Idaho Code, if, as soon as possible but in no event longer than twenty-four (24) hours after performing the abortion, the physician obtained positive identification
(3) If after performing an abortion under circumstances of a medical emergency as defined in subsection (5) of section 18-609A, Idaho Code, the physician, after reasonable inquiry, is unable to determine whether or not the woman is a minor, the physician shall not be subject to criminal, civil or administrative liability for taking any action that would have been required by subsection (1)(a)(v) of section 18-609A, Idaho Code, if the woman had been a minor at the time the abortion was caused or performed.
(4) For purposes of this section, "positive identification" means a lawfully issued state, district, territorial, possession, provincial, national or other equivalent government driver's license, identification card or military card, bearing the person's photograph and date of birth, the person's valid passport or a certified copy of the person's birth certificate.
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Idaho Code § 18-615 (2002)
If any one (1) or more provision, section, subsection, sentence, clause, phrase, or word of this chapter or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this chapter shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed every section of this chapter and each provision, section, subsection, sentence, clause, phrase or word thereof irrespective of the fact that any one (1) or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.
Boundary Backpackers, 913 P.2d at 1148.