IN RE DOE No. 1 AB.
33 A.3d 615 (2011)
In the Interest of Jane DOE, a Minor. Appeal of Jane Doe.
Supreme Court of Pennsylvania.
Decided December 22, 2011.
Frederick N. Frank , Frank, Gale, Bails, Murcko & Gubinsky, P.C., Pittsburgh, for PG Publishing Co., Morning Call, Inc., Philadelphia Media Network, Inc., PA Newspaper Assoc., Participant.
Howard Burton Elbling , Randall H. McKinney , for Jane Doe.
Thomas W. Corbett Jr. , John G. Knorr III , Calvin Royer Koons , PA Office of Attorney General, Harrisburg, for Petitioner Amicus Curiae, Attorney General of Pennsylvania.
Witold J. Walczak , American Civil Liberties Union of Pennsylvania, for Petitioner Amicus Curiae, ACLU of Pennsylvania.
Richard E. Connell , Ball, Murren & Connell, Harrisburg, for Respondent Amicus Curiae, Pennsylvania Catholic Conference.
Randall Luke Wenger , Boyle Neblett & Wenger, Camp Hill, for Respondents Amicus Curiae, Independence Law Center and PA Pro-Life Federation & PA Family Institute.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Under prevailing decisions of the United States Supreme Court, the federal Constitution has protected a woman's right to choose to have an abortion before viability and to obtain the abortion without undue governmental interference. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The High Court has ruled that a state may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided, however, there is an adequate alternative procedure in place permitting the "judicial bypass" of the parental consent requirement for minors that the court finds to be mature and capable of consenting to an abortion. Planned Parenthood v. Casey, 505 U.S. 833, 899, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality); Bellotti v. Baird, 443 U.S. 622, 643, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality); Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) (holding that in order to prevent another person from having an absolute veto power over a minor's decision to have an abortion, a state may not impose a blanket provision requiring the consent of a parent).
After these legal principles were announced, the General Assembly enacted the Pennsylvania Abortion Control Act ("Act"), Act of June 11, 1982, P.L. 476, No. 138 (as amended, 18 Pa.C.S. §§ 3201-3220). As a general rule, our Legislature has declared that, absent a medical emergency, a physician shall not perform an abortion upon an unemancipated pregnant woman under the age of 18 years without the informed consent of the pregnant woman and one of her parents. 18 Pa. C.S. § 3206(a). Germane to the issue before us, however, the Legislature further provided for the "judicial bypass" of the parental consent requirement and the judicial authorization for an abortion performed upon a minor where the court finds that the minor is "mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent." Id. § 3206(c).
In this appeal, we examine the standard of review applicable to the trial court's denial of the minor's petition for judicial authorization for an abortion, and determine whether the trial court may, under the Act, deny judicial authorization based upon the minor's failure to obtain parental consent. For the reasons that follow, we hold that an appeal from the denial of a minor's petition for judicial authorization for an abortion shall be reviewed under the abuse of discretion standard. Additionally, we hold that a trial court lacks statutory authority to deny a minor's petition for judicial authorization for an abortion based on her failure to obtain parental consent. Premised upon these conclusions, we vacate the order of the Superior Court, which affirmed the order of the trial court.
The record discloses that on or about March 19, 2010, a minor identified as Jane Doe ("Appellant") filed an Application for Judicial Authorization of an Abortion pursuant to 18 Pa.C.S. § 3206.
Additionally, Appellant testified that she did not obtain the consent of her mother, with whom she resided, because she feared her mother would "throw her out" if she discovered she was pregnant. N.T. 3/19/2010 at 11.
Upon further court inquiry, Appellant testified that she consulted her boyfriend's sister about whether to have an abortion. Appellant responded in the negative when the court inquired whether the abortion provider offered her printed materials listing available agencies that would assist her in adoption; she did, however, agree with the court that adoptive parents could possibly provide a home for a child. Appellant further acknowledged the medical and emotional risks of abortion, but reiterated that she was unable to care for a child, and that her future plans would be jeopardized if she were forced to do so. Recognizing that her decision to terminate her pregnancy was the most significant decision she had ever made, Appellant stated that she was "not physically, mentally or emotionally ready for this baby." Id. at 35.
At this point in the proceedings, the trial court reserved judgment on Appellant's application on the ground that the abortion provider never gave her printed materials regarding alternatives to abortion, which the court found to be required by Section 3205(a) of the Act.
At the conclusion of the hearing, the trial court denied Appellant's application, finding that she was not mature and capable of giving informed consent to an abortion, and that it was not in her best interests to have an abortion. When Appellant's counsel inquired as to the basis for the court's decision, the trial court expressed two concerns. Pertinent to the issue raised by Appellant, the court expressed its concern with her failure to inform her mother of the proposed abortion. The court stated, "it seems to me that in every case if we would allow a minor to use the bypass provision based solely on the representation that their [sic] parent would be disappointed with their [sic] decision, I can't imagine that any parent is going to receive news that
Second, the court relied on the abortion facility's initial failure to provide Appellant with the printed materials it erroneously deemed required by Section 3205. Id. at 56. The court recognized that Appellant technically complied with its interpretation of Section 3205 because she reviewed the printed materials that afternoon, which was more than 24 hours prior to the abortion procedure, rescheduled to take place three days hence. The court believed, however, that Appellant's examination of such information after she had already decided to proceed with the abortion placed her in a position where she had "no choice but to proceed further." Id.
Five days later, on March 24, 2010, the trial court entered its findings of fact and conclusions of law in support of the denial of relief. Acknowledging that the Act does not address the burden of proof an applicant must satisfy to obtain judicial authorization for an abortion, the court afforded Appellant "the benefit of the doubt," and applied the lowest burden of proof—preponderance of the evidence. Trial Ct. Slip Op. 3/24/2010 at 6.
In support of its conclusion that Appellant failed to demonstrate that she was "mature and capable of giving informed consent to the proposed abortion," the trial court cited the following factors it deemed relevant to Appellant's intelligence and experience: her average high school grades; her improper use of English during the hearing;
As noted, the trial court also relied significantly on the fact that Appellant did not secure parental consent. It discredited Appellant's testimony that she feared her mother would "throw her out" if she discovered the pregnancy, finding that Appellant's mother had accepted the unplanned pregnancies of her sister and brother's girlfriend. The court reasoned that a "minor displays sound judgment and maturity by overcoming fear and anxiety by seeking the guidance and advice of their [sic] parent(s)/guardian(s), the person or persons most responsible for the minor's well[-]being and development." Id. at 15.
The court further considered the steps Appellant took to explore alternatives to the abortion procedure, and again cited the abortion provider's initial failure to furnish her with printed literature on the subject, id., at 9-11, which the trial court believed the statute mandated. Indeed, the trial court specifically opined that "the actions of the abortion provider in failing to provide what the legislature has deemed critical information to a woman contemplating an abortion, directly impacted [Appellant's] ability to provide informed consent."
The trial court proceeded to examine Section 3206(d), which provides that the court may authorize a physician to perform an abortion, even if the pregnant woman is not mature and capable of giving informed consent, if the court determines that the performance of an abortion would be in the best interests of the woman. 18 Pa.C.S. § 3206(d). Finding that the abortion would not be in Appellant's best interests, the trial court declined to grant judicial authorization under this subsection of the Act.
Appellant thereafter filed a Motion for Reconsideration. Prior to oral argument on such motion, Appellant sought recusal of the trial court judge on the basis that he had been endorsed by a pro-life organization during his candidacy for judge, and that such fact created an appearance of impropriety, precluding him from examining the legal issue in an unbiased manner. On March 24, 2010, the trial court denied both the motion for recusal and the motion for reconsideration.
On appeal to Superior Court, Appellant argued that the trial court erred by (1) failing to recuse; (2) failing to set forth specific factual findings and legal conclusions as required by 18 Pa.C.S. § 3206(f)(1);
The Superior Court affirmed in a memorandum opinion. Initially, the court found that the trial court did not abuse its discretion by denying Appellant's motion for recusal. The court further held that the trial court complied with Section 3206(f)(1) by filing a comprehensive opinion in which it made specific factual findings and legal conclusions. With regard to Appellant's remaining issues, which challenged the trial court's denial of her application for judicial authorization, the Superior Court relied on the trial court's opinion. One judge on the Superior Court panel concurred in part and dissented in part, without opinion.
Appellant subsequently filed in this Court a Confidential Petition for Review pursuant to the Act and Pa.R.A.P. 3811 (providing that "[w]ithin thirty (30) days of the entry of an order of the Superior Court denying an application for an abortion under 18 Pa.C.S. § 3206, an applicant may file a confidential petition for review consistent with Pa.R.A.P. 123 relating to applications for relief to the Pennsylvania Supreme Court.").
This Court granted Appellant's petition for review, limited to the issues of whether the Superior Court erred by reviewing the denial of judicial authorization under the
Before addressing the merits of Appellant's contentions, we recognize that this case is technically moot. Appellant acknowledged in her petition for review and in her appellate brief that, after the Superior Court's disposition of her appeal, she was no longer pregnant. Petition for Review at ¶ 5; Appellant's Brief at 14. Thus, our ruling in this case has no practical significance to Appellant. However, because the questions presented herein are of public importance, are capable of repetition, and may evade review due to the condensed time frame evident in every pregnancy, and thus in every abortion case, an exception to the mootness doctrine applies. See Commonwealth v. Dixon, 589 Pa. 28, 907 A.2d 468, 472-73 (2006) ("[A]n appellate court may decide a case where issues important to the public interest are involved, the nature of the question under consideration is such that it will arise again, and review will be repeatedly thwarted if strict rules of mootness are applied.").
Critical to disposition of all issues presented is a determination of the appropriate standard of appellate review.
To the contrary, she submits that a de novo standard of review, which contemplates an appellate court's independent evaluation of the evidence with independent findings of fact and conclusions of law, is more appropriate for determinations of whether a minor is mature and capable of consenting to an abortion. See Two Sophia's, Inc. v. Pa. Liquor Control Bd., 799 A.2d 917, 922 n. 5 (Pa.Cmwlth. 2002) (stating that "[i]n essence, `de novo
To be more precise, Appellant advocates the adoption of an approach that would afford deference to the trial court's factual findings, but review de novo the ultimate maturity/capacity determination. Acknowledging that the distinction between a finding of fact and a conclusion of law in a judicial bypass proceeding is "muddled," Appellant nevertheless proposes that we view the trial court's determination of maturity and capacity as a pure legal conclusion to which an appellate court affords no deference. Appellant's Brief at 28-29. See In re Jane Doe 2, 166 P.3d 293, 295 (Colo.App.2007) (stating that in judicial bypass appeals, we "give deference to the trial court's factual findings based on the evidence and to its assessment of the witnesses' credibility, while reviewing de novo its resolution of the ultimate legal questions of maturity and best interests").
Accepting this Court's invitation to participate in this appeal, the Attorney General advocates application of the standard of review that comports with that found in other similar areas. It describes such standard as requiring an appellate court to disturb the trial court's findings of fact only if unsupported by the record, exercise de novo review over issues of law, and, contrary to Appellant's position, review under an abuse of discretion standard the trial court's ultimate determination as to whether the minor is mature and capable of giving informed consent to an abortion. Brief for Attorney General of Pennsylvania as Amicus at 3. It analogizes a trial court's decision to deny judicial authorization for an abortion to decisions terminating parental rights, granting child custody or adoption, and appointing guardians, all of which are reviewed for an abuse of discretion. See e.g. In re Adoption of J.J., 511 Pa. 590,
Upon consideration of the parties' arguments, we agree with the position set forth by the Attorney General and hold that, absent direction in the Act, an appellate court reviewing a denial of a petition for judicial authorization for an abortion should give deference to the facts found by the lower court where they are supported by competent evidence of record; review pure questions of law under the de novo standard of review without affording deference to the trial court's legal conclusions, and review under an abuse of discretion standard the trial court's ultimate determination as to whether the minor is mature and capable of giving informed consent to an abortion.
We adopt the abuse of discretion standard to review the trial court's maturity/capacity determination for three reasons. First, contrary to Appellant's position, we do not view the trial court's maturity/capacity determination as a pure question of law, subject to de novo review. See Commonwealth v. Omar, 602 Pa. 595, 981 A.2d 179, 185 (2009) (providing that an appellate court reviews pure questions of law under a de novo standard). Rather, the inquiry of whether a minor is mature enough to determine whether to terminate her pregnancy is fact-intensive and more suitable for deferential review. While the trial court may not be called upon to weigh disputed evidence, given the lack of adversarial parties, the trial court's firsthand observation of the minor's demeanor and testimony is an invaluable tool in determining whether the minor's assertions of maturity and capacity are worthy of belief.
Other courts, absent legislative direction to the contrary, have applied a deferential standard of review to the trial court's ultimate finding of maturity/capacity in recognition that trial courts have an advantage over appellate courts in gauging demeanor and assessing credibility of minors who
Second, we decline to adopt de novo review over maturity/capacity determinations in judicial bypass cases because we have not afforded de novo review in other appeals where constitutionally protected family concerns are implicated.
Finally, we note that some states which have employed a de novo standard of appellate review in judicial bypass cases have done so as part of the legislative scheme. See e.g. Neb.Rev.Stat. § 71-6904(6) (providing that "[t]he Supreme Court shall hear the appeal de novo on the record and issue a written decision which shall be provided immediately to the pregnant woman, the pregnant woman's guardian ad litem, the pregnant woman's attorney, or any other person designated by the pregnant woman to receive the order."); Tenn. Code Ann. § 37-10-304(g) (providing that "[t]he [judicial bypass] appeal shall be de novo to the circuit court for the county in which the juvenile court is located."). As our General Assembly has not chosen to require a de novo appeal from the denial of judicial authorization for an abortion, we decline to provide the same absent compelling reason to do so.
Having determined the appropriate standard of appellate review, we proceed to examine whether the trial court abused its discretion by relying, in significant part, on Appellant's failure to seek parental consent as evidence of her lack of maturity and capacity to provide independent, informed consent for an abortion. We have held that "[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will
We begin by examining the statutory framework governing abortions in Pennsylvania. When analyzing a statute, we are guided by the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. The purpose of statutory construction is to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). The language employed by the General Assembly is the best indication of its intent. When the words of a statute are clear and free from all ambiguity, the letter of the law is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). With these guidelines in mind, we turn to the statutory language.
Generally, the Act permits a woman to seek an abortion if she has given "voluntary and informed consent" at least 24 hours in advance of the procedure. 18 Pa.C.S. § 3205(a). As the Superior Court recognized in L.D.F., "[t]he nature of the informed consent is set out in the statute in precise terms." 820 A.2d at 716. The Act declares that consent to an abortion is voluntary and informed if a physician or other designated individual has explained to the woman the nature of the proposed abortion procedure and the risks and alternatives "that a reasonable patient would consider material to the decision of whether to proceed with an abortion." 18 Pa. C.S. § 3205(a)(1)(i). A physician or other designated individual must also inform the woman of the probable gestational age of the unborn child and the medical risks associated with carrying the child to term. Id. § 3205(a)(1)(ii), (iii).
The Act further requires that a physician inform the woman that the state health department publishes printed materials, which will be provided to her if she chooses to review them. These printed materials describe the unborn child and list agencies offering alternatives to abortion; explain that medical assistance may be available to her; and explain that the father of the unborn child is liable to assist in the support of her child. Id. § 3205(a)(2)(i), (ii) & (iii).
Id. § 3206(c).
The General Assembly additionally has provided guidance as to the factors a court is to consider in determining whether a minor is mature and capable of giving informed consent to an abortion. The Act directs that "[a]t the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect and understanding of the pregnant woman, the fact and duration of her pregnancy, the nature, possible consequences[,] and alternatives to the abortion...." Id. § 3206(f)(4). The court may also consider "any other evidence that the court may find useful in determining whether the pregnant woman should be granted full capacity for the purpose of consenting to the abortion or whether the abortion is in the best interest of the pregnant woman." Id.
Appellant argues that the trial court nullified these provisions of the Act by utilizing improperly her failure to seek parental consent as a ground for concluding that she lacked the maturity and capacity necessary to give independent, informed consent. She contends that a minor has an express statutory right not to involve her parents in her decision-making process. She relies on the language of the judicial bypass provision set forth in Section 3206, as well as the statement of legislative intent contained in Section 3202(a) of the Act, which states, in part, that "[i]t is the further intention of the General Assembly to ... protect the right of the minor woman voluntarily to decide to submit to abortion or to carry her child to term." 18 Pa.C.S. § 3202(a). Appellant concludes that her choice to utilize the protections afforded by the statute without parental consultation cannot be used against her as a basis for denying her application for judicial authorization.
A trial court conducting a judicial bypass proceeding must keep in mind that in making a maturity/capacity determination under Section 3206(c), the court is not examining whether abortion is the best choice for the minor, but rather whether the minor is mature enough to make that choice for herself. To ensure consistent application of the law in cases involving the politically charged and controversial issue of abortion rights, the judiciary must respect the General Assembly's policy decision not to require parental consultation prior to a minor obtaining judicial authorization to terminate her pregnancy, and must give effect to those controlling provisions of the Act. See Malt Bevs. Distrib. Ass'n v. Pa. Liquor Control Bd., 601 Pa. 449, 974 A.2d 1144, 1154 (2009) (citing, Uniontown Newspapers, Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185, 194 (2003) (providing that policy considerations do not lie with the courts, but are reserved for the legislative body to resolve)); see also 1 Pa.C.S. § 1921(a) (providing that every statute should be construed to give effect to all its provisions). To hold otherwise would leave open the door for result-oriented decisions utilizing the lack of parental consent, which, as stated, is not a disqualifying factor, to justify denial of judicial authorization under the guise of the minor's lack of maturity.
A review of the record indicates that Appellant's failure to consult with her mother about whether to terminate her pregnancy played an integral part in the trial court's determination that she lacked the maturity and capacity to consent to an abortion. See Trial Ct. Slip Op. at 20 & 21 (stating that "a minor, such as [Appellant], must attempt to secure the consent of at least one parent" and Appellant "did not put forth any valid, credible and/or believable reason for not seeking her mother's consent"); id. at 15 (where the court reasoned
Nevertheless, we readily acknowledge that in making the maturity/capacity determination, the trial court relied upon a myriad of factors in addition to Appellant's failure to consult with her mother. See supra pp. 6-8. We believe it unwise to examine the propriety of the trial court's exercise of discretion in this regard for three reasons. First, we lack advocacy on this issue and are loath to decide a matter absent an opportunity to weigh the respective arguments presented by the parties. See Danville Area Sch. Dist. v. Danville Area Educ. Ass'n, 562 Pa. 238, 754 A.2d 1255, 1259 (2000) (explaining that sua sponte consideration of issues disturbs the process of orderly judicial decision making because it deprives the court of the benefit of counsel's advocacy). Second, considering that Appellant is no longer pregnant, and that the case is technically moot, it would be futile to direct the trial court to reconsider its maturity/capacity determination under the proper statutory framework. Finally, we have already addressed Appellant's primary challenge to the trial court's exercise of discretion, i.e., its reliance upon her lack of parental consultation/consent in denying judicial authorization for an abortion, and have fully answered the specifically designated question raised in Appellant's petition for review. Thus, as noted, we offer no opinion on the trial court's ultimate determination that Appellant lacked the maturity and capacity to consent to an abortion. For the reasons set forth herein, we vacate the order of the Superior Court, which affirmed the trial court's denial of judicial authorization for an abortion, and refrain from further addressing the trial court's exercise of its discretion in this case.
Justice ORIE MELVIN files a concurring and dissenting opinion.
Justice ORIE MELVIN, concurring and dissenting.
I join the majority's articulation of the appropriate standard of review that an appellate court should apply to appeals from the denial of judicial authorization pursuant to section 3206(c) of Pennsylvania's Abortion Control Act ("Act"), Act of June 11, 1982, P.L. 476, No. 138 (codified as amended at 18 Pa.C.S. §§ 3201-3320). I disagree, however, with the majority's conclusion that the trial court somehow misapplied the mandate of section 3206(c) by inquiring into the reasons why the minor elected not to seek the consent of either parent and thereby abused its discretion.
Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion).
The High Court further noted:
Id. at 640-41, 99 S.Ct. 3035 (internal quotation marks, citation and footnotes omitted).
In denying judicial authorization in this case, the trial court's searching inquiry appropriately relied upon a multitude of factors and applied a totality of the circumstances analysis to reach its conclusion that the minor was not "mature and capable" of giving informed consent independently as required by section 3206(c) of the Act. As part of its reasoning, it took into consideration the minor's explanation for electing to not seek her mother's consent, and it also underscored that her post-petition compliance with section 3205(a)(2) of the Act reflected poorly on her ability to provide informed consent to the procedure. The Superior Court affirmed the trial court's denial of judicial authorization, finding no abuse of discretion. I agree with the Superior Court's determination.
I further distance myself from the majority's acceptance of Appellant's argument that sections 3206(c) and (f)(4) of the Act were "nullified" by the trial court "utilizing
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