Wednesday, August 30, 2006

Case Law Development: 10th Circuit Court Rejects Challenge to Oklahoma Parental Notification Statute

In an action by medical providers to enjoin the state attorney general and others from enforcing an Oklahoma statute requiring parental notification before a minor could receive an abortion, the 10th Circuit Court of Appeals affirmed the district court's denial of the motion for the preliminary injunctive relief.  Plaintiff had argued that the judicial bypass provision of the statute could not be decided with sufficient expedition.  However, the court rejected this argument because the statute expressly requires prompt and expedited decisions and because plaintiff did not prove that state courts were unable to meet this requirement. 

In most actions for interlocutory injunctions, the 10th circuit applies a liberal standard on the likelihood of success standard in most instances, allowing for injunctions were serious harm is threatened so long as there is a "fair ground for litigation."  However, when injunctions are sought against the goverment, the plaintiff must prove the more stringent standard of a probability of success on the merits.  Here, the court concluded the plaintiff was unable to meet that burden. 

The court did comment that if there were evidence of the delay alleged by plaintiff, the court would have "serious concerns about the constitutionality of the bypass procedures."  However, absent proof of delay, the court concluded that

in the absence of evidence to the contrary, we must presume that courts will follow the law. ...The Oklahoma Act, on its face, complies with Bellotti in that it requires Oklahoma courts to issue prompt decisions and provide for expeditious appeals, all in accordance with the best interests of the pregnant unemancipated minor. We presume they will do just that.

Nova Health Sys. v. Edmondson, 2006 U.S. App. LEXIS 21706 (10th Cir. Ct. App. August 25, 2006)
Opinion on web (last visited August 29, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/case_law_develo_28.html

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