* Of the District of Massachusetts, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 04-1161

PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, ET AL.,

CONCORD FEMINIST HEALTH CENTER, FEMINIST HEALTH

CENTER OF PORTSMOUTH, AND WAYNE GOLDNER, M.D.,

Plaintiffs, Appellees,

v.

PETER HEED,

ATTORNEY GENERAL OF THE STATE OF NEW HAMPSHIRE,

IN HIS OFFICIAL CAPACITY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Saris,* District Judge.

Daniel J. Mullen, Associate Attorney General, with whom

Suzanne M. Gorman, Senior Assistant Attorney General, and Andrew B.

Livernois, Assistant Attorney General, were on brief, for

appellant.

Teresa Stanton Collett, Professor of Law University of St.

Thomas School of Law, Minneapolis, MN, was on brief, for amici

curia New Hampshire Legislators in support of appellant.

Dara Klassel, with whom Martin P. Honigberg, Sulloway &

Hollis, PLLC, Jennifer Dalven, Corinne Schiff, Lawrence A.

Vogelman, and Shuchman, Krause & Vogelman, PLLC, were on brief, for

appellees.

November 24, 2004
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TORRUELLA, Circuit Judge. Defendant-appellant Attorney

General of the State of New Hampshire, Peter Heed, acting in his

official capacity ("Attorney General"), appeals the district

court's order declaring unconstitutional and enjoining the

enforcement of the Parental Notification Prior to Abortion Act (the

"Act"), 2003 N.H. Laws 173, codified at N.H. Rev. Stat. Ann.

("RSA") § 132:24-28 (2003).

I. Background

In June 2003, the New Hampshire legislature passed "AN

ACT requiring parental notification before abortions may be

performed on unemancipated minors," which states that:

No abortion shall be performed upon an

unemancipated minor or upon a female for whom

a guardian or conservator has been appointed

pursuant to RSA 464-A because of a finding of

incompetency, until at least 48 hours after

written notice of the pending abortion has

been delivered in the manner specified in

paragraphs II and III.
1 The Act defines an abortion as:

the use or prescription of any instrument,

medicine, drug, or any other substance or

device intentionally to terminate the

pregnancy of a female known to be pregnant

with an intention other than to increase the

probability of a live birth, to preserve the

life or health of the child after live birth,

or to remove an ectopic pregnancy or the

products from a spontaneous miscarriage.

RSA 132:24, I.

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RSA 132:25, I.1 Paragraph II specifies that "written notice shall

be addressed to the parent at the usual place of abode of the

parent and delivered personally to the parent by the physician or

an agent." RSA 132:25, II. Paragraph III allows for notification

by certified mail with return receipt requested and with restricted

delivery to the addressee. RSA 132:25, III.

The notice requirement is waived if

(a) The attending abortion provider certifies

in the pregnant minor's medical record that

the abortion is necessary to prevent the

minor's death and there is insufficient time

to provide required notice; or

(b) The person or persons who are entitled to

notice certify in writing that they have been

notified.

RSA 132:26, I.

If a minor does not want her parent or guardian notified,

she may request a state judge, after a hearing, to "authorize an

abortion provider to perform the abortion if said judge determines

that the pregnant minor is mature and capable of giving informed
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consent to the proposed abortion," or if the judge determines that

"the performance of an abortion upon her without notification of

her parent, guardian, or conservator would be in her best

interests." RSA 132:26, II. In these proceedings, the pregnant

minor may act on her own behalf or be appointed a guardian ad

litem, and she must also be advised that she has a right to request

court-appointed counsel. RSA 132:26, II (a). The court

proceedings "shall be confidential and shall be given such

precedence over other pending matters so that the court may reach

a decision promptly and without delay so as to serve the best

interest of the pregnant minor." RSA 132:26, II (b).

Specifically, "[i]n no case shall the court fail to rule within 7

calendar days from the time the petition is filed." RSA 132:26, II

(b). The judge must also "make in writing specific factual

findings and legal conclusions," and order a record of the evidence

to be maintained. RSA 132:26, II (b).

If the minor's petition is denied, an "expedited

confidential appeal shall be available," and the appellate court

must rule within seven calendar days of the docketing of the

appeal. Access to the trial and appellate courts for the purposes

of these petitions "shall be afforded such a pregnant minor 24

hours a day, 7 days a week." RSA 132:26, II (c).

Violation of the Act can result in criminal penalties and

civil liability:
2 Citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),

amici New Hampshire Legislators argue that appellee abortion

providers lack standing to challenge the Act because the injury

giving rise to standing is speculative. The injury in question,

according to amici, is the one suffered by pregnant minors who

require an abortion for health reasons. Amici argue that it is

"not sufficient to merely show that some unknown medical conditions

exist that may at some unknown future date be suffered by some

unknown minors." Brief of Amici New Hampshire Legislators at 8.

In fact, Dr. Wayne Goldner listed in his unopposed declaration five

specific conditions that could require abortion to protect a

minor's health: preeclampsia, eclampsia, premature rupture of the

membranes surrounding the fetus, spontaneous chorioamnionitis, and

heavy bleeding during pregnancy. Declaration of Wayne Goldner,

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Performance of an abortion in violation of

this subdivision shall be a misdemeanor and

shall be grounds for a civil action by a

person wrongfully denied notification. A

person shall not be held liable under this

section if the person establishes by written

evidence that the person relied upon evidence

sufficient to convince a careful and prudent

person that the representations of the

pregnant minor regarding information necessary

to comply with this section are bona fide and

true, or if the person has attempted by

reasonable diligence to deliver notice, but

has been unable to do so.

RSA 132:27. The Act was to take effect on December 31, 2003. 2003

N.H. Laws 173.

On November 17, 2003, plaintiffs-appellees Planned

Parenthood of Northern New England, Concord Feminist Health Center

of Portsmouth, Feminist Health Center of Portsmouth, and Wayne

Goldner, M.D. ("plaintiffs") filed a complaint under 42 U.S.C.

§ 1983, seeking a declaratory judgment that the Act is

unconstitutional and a preliminary injunction to prevent its

enforcement once it became effective.2 The district court merged
M.D., ¶¶ 8-15. Moreover, appellee abortion providers themselves

face an imminent injury -- civil or criminal prosecution for

performing an abortion in violation of the Act -- sufficient to

confer on them Article III standing. See Planned Parenthood of

Cent. Mo. v. Danforth, 428 U.S. 52, 62 (1976) (holding that

physician abortion providers asserting their own rights and those

of their patients had standing to challenge abortion regulation and

"should not be required to await and undergo a criminal prosecution

as the sole means of seeking relief"). Because of their close

relationship to the abortion decision, and the rights involved,

providers routinely have jus tertii standing to assert the rights

of women whose access to abortion is restricted. See Singleton v.

Wulff, 428 U.S. 106, 117 (1976) ("[I]t generally is appropriate to

allow a physician to assert the rights of women patients as against

governmental interference with the abortion decisions . . . .").

Indeed, as the Ninth Circuit has noted, "physicians and clinics

performing abortions are routinely recognized as having standing to

bring broad facial challenges to abortion statutes." Planned

Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 916-18 (9th Cir.

2004) (discussing abortion providers' third-party standing and

citing cases).

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the preliminary and permanent injunction proceedings and, on

December 29, 2003, issued an order holding the Act unconstitutional

and permanently enjoining its enforcement.

The district court found unconstitutional both (1) the

lack of an explicit exception to protect the health of the pregnant

minor, and (2) the narrowness of the Act's exception for abortions

necessary to prevent the minor's death. Having found the Act

fatally flawed in these respects, the district court declined to

rule on the constitutionality of the Act's failure to provide

specific protections for the confidentiality of a minor seeking a

judicial waiver.

The Attorney General, acting in his official capacity,

appeals.
3 In Salerno, the Court considered a facial challenge to the Bail

Reform Act, 18 U.S.C. § 3142(e), which permits pretrial detention

on the ground of dangerousness. The Court held that the provision

in question, which was accompanied by strict procedural safeguards,

did not constitute a facial violation of the Due Process or

Excessive Bail clauses of the Constitution. Salerno, 481 U.S. at

755.

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II. Analysis

We review the district court's decision regarding the

constitutionality of a statute de novo. United States v. Lewko,

269 F.3d 64, 67 (1st Cir. 2001).

The Attorney General argues that in deciding whether the

Act is facially invalid we should apply the "no set of

circumstances" standard set forth in United States v. Salerno, 481

U.S. 739 (1987).3 This standard requires plaintiffs challenging a

state law as facially invalid to show that "no set of circumstances

exists under which the Act would be valid." Id. at 745. The

Attorney General's argument rests on the premise that the Salerno

standard is applicable to the Act despite the agreement of a

plurality of Justices in Planned Parenthood of S.E. Pa. v. Casey,

505 U.S. 833, 876-77 (1992), that a law which "has the purpose or

effect of placing a substantial obstacle in the path of a woman

seeking an abortion of a nonviable fetus" places an

unconstitutional "undue burden" on the exercise of her right to

choose abortion. A majority of the Casey Court applied that

standard to determine that an abortion regulation is facially

invalid if "in a large fraction of cases in which [the regulation]
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is relevant, it will operate as a substantial obstacle to a woman's

choice to undergo an abortion," thus imposing an "undue burden."

Id. at 895 (per Justices O'Connor, Kennedy, and Souter, joined by

Justices Stevens and Blackmun). The Court has since confirmed that

"'a law designed to further the State's interest in fetal life

which imposes an undue burden on the woman's decision before fetal

viability' is unconstitutional." Stenberg v. Carhart, 530 U.S.

914, 921 (2000) (quoting Casey, 505 U.S. at 877); see also id. at

945-46 (declaring Nebraska ban on so-called "partial birth

abortion" unconstitutional under undue burden standard).

Despite the Supreme Court's clear application of the

undue burden standard in Casey and Stenberg, it has never

explicitly addressed the standard's tension with Salerno. In the

instant case, while recognizing that this court has yet to address

the issue, the district court followed the majority of circuits

that apply the Casey and Stenberg standard to legislation

regulating abortion. The Attorney General notes that the Supreme

Court applied the Salerno standard in the abortion context prior to

Casey, see, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S.

502, 514 (1990), and urges us to follow the Fifth Circuit's

decision in Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992),

that Casey does not displace Salerno's "no set of circumstances"

test for facial challenges to abortion regulation. See also

Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1102-03 (5th Cir.
4 Only the Fourth Circuit has been sympathetic to the Barnes

approach, indicating that it might continue to apply Salerno. See

Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997) ("not[ing]

in passing" that a court is bound to apply Salerno in abortion

context unless the Supreme Court explicitly overrules it);

Greenville Women's Clinic v. Bryant, 222 F.3d 157, 164-65 (4th

Cir. 2000) (noting that observation in Manning was not dicta and

that Salerno must be applied to show deference to legislatures).

But see, Greenville Women's Clinic v. Comm'r, S.C. Dept. of Health,

317 F.3d 357, 359 (4th Cir. 2002) (on subsequent appeal,

characterizing Bryant as holding, in part, that regulation in

question "did not place an undue burden on a woman's decision

whether to seek an abortion") (emphasis added).

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1997) (declining to reverse Barnes). The overwhelming majority of

circuits to address this issue, however, have disagreed with the

Fifth Circuit.4 See, e.g., Planned Parenthood of Cent. N.J. v.

Farmer, 220 F.3d 127, 142-43 (3d Cir. 2000) (holding undue burden

standard, instead of Salerno standard, applies in abortion context

after Casey); Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d

1022, 1025-26 (9th Cir. 1999) (noting inconsistency between Casey

and Salerno, and following "great weight of circuit authority

holding that Casey has overruled Salerno in the context of facial

challenges to abortion statutes"), amended on denial of reh'g, 193

F.3d 1042 (9th Cir. 1999); Women's Med. Prof. Corp. v. Voinovich,

130 F.3d 187, 193-96 (6th Cir. 1997) (holding that Casey

effectively overruled Salerno), cert. denied, 523 U.S. 1036 (1998);

Jane L. v. Bangerter, 102 F.3d 1112, 1116 (10th Cir. 1996)

(observing that Supreme Court applied undue burden test instead of

Salerno test in Casey, rendering undue burden "the proper test

after Casey"), cert. denied sub nom., Leavitt v. Jane L., 520 U.S.
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1274 (1997); Planned Parenthood, Sioux Falls Clinic v. Miller, 63

F.3d 1452, 1456-58 (8th Cir. 1995) (opting to "follow what the

Supreme Court actually did -- rather than what it failed to say --

and apply the undue-burden test."), cert. denied sub nom., Janklow

v. Planned Parenthood, 517 U.S. 1174 (1996); cf. A Woman's Choice -

E. Side Women's Clinic v. Newman, 305 F.3d 684, 687 (7th Cir. 2002)

(reconciling conflict between Salerno, and Stenberg/Casey, by

construing "no set of circumstances" language as a "suggestion"

that gives way to Stenberg's holding that undue burden test

applies), cert. denied, 537 U.S. 1192 (2003). We agree with these

six circuit courts that the undue burden standard -- proposed as a

standard "of general application" by the Casey plurality, Casey,

505 U.S. at 876, and twice applied to abortion regulations by a

majority of the Court, id. at 895; Stenberg, 530 U.S. at 920 --

supersedes Salerno in the context of abortion regulation.

Complementing the general undue burden standard, the

Supreme Court has also identified a specific and independent

constitutional requirement that an abortion regulation must contain

an exception for the preservation of a pregnant woman's health.

See Stenberg, 530 U.S. at 929-30 (identifying "two independent

reasons" for striking down a Nebraska regulation: first, that it

lacks a health exception, and second, that it imposes an undue

burden on a woman's ability to choose abortion). The origin of the

health requirement can be traced to Roe, which held that "the
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State, in promoting its interest in the potentiality of human life,

may . . . regulate . . . abortion [after fetal viability] except

where necessary, in appropriate medical judgment, for the

preservation of the life or health of the mother." Roe v. Wade,

410 U.S. 113, 164-65 (1973)(emphasis added), reaff'd Casey, 505

U.S. at 879 (plurality opinion). Later, the majority in Casey

observed that, had the medical emergency exception to

Pennsylvania's abortion restrictions -- among them a parental

consent requirement -- precluded "immediate abortion despite some

significant health risks," it would have been unconstitutional

since "the essential holding of Roe forbids a State to interfere

with a woman's choice to undergo an abortion . . . if continuing

her pregnancy would constitute a threat to her health." Casey, 505

U.S. at 880. Finally, in Stenberg, 530 U.S. at 930, the Supreme

Court clarified that "the law requires a health exception in order

to validate even a postviability abortion regulation, [and] it at

a minimum requires the same in respect to previability

regulations," 530 U.S. at 930. Thus, a statute regulating abortion

must contain a health exception in order to survive constitutional

challenge. Similarly, Roe requires that abortion regulations

contain an adequate death exception to permit abortion when it is

necessary to save the life of a pregnant woman. Roe, 410 U.S. at

164-65.
5 Amicus Bishop of Manchester argues that Stenberg should be

limited to cases in which a particular method of abortion is banned

outright. This argument misreads the Court's discussion of the

regulation at issue in that case. The majority did emphasize its

prior caselaw "invalidat[ing] statutes that in the process of

regulating the methods of abortion, impose[] significant health

risks," 530 U.S. at 931 (emphasis in original), but this language

was meant to rebut Justice Thomas's dissent that a health exception

was only applicable "where the pregnancy itself creates a threat to

health." Id. (emphasis in original). To the contrary, the Court

held, "a risk to a woman's health is the same whether it happens to

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The instant case thus presents three questions: whether

New Hampshire's Act contains an adequate health exception, whether

it contains an adequate death exception, and whether it places an

undue burden on unemancipated minors who wish to obtain an

abortion. A state's decision to require parental notification for

minors seeking an abortion is not constitutionally infirm per se.

See Lambert v. Wicklund, 520 U.S. 292 (1997) (upholding parental

notification statute against constitutional challenge to judicial

bypass procedure). The district court determined, however, that

the New Hampshire Act's lack of a health exception and overly

narrow death exception render it unconstitutional. Appellees argue

that the Act also creates an undue burden by failing to adequately

ensure the confidentiality of judicial bypass procedures.

A. Health exception

The Attorney General and amici suggest that parental

notification laws are shielded from the health exception

requirement reiterated in Stenberg on account of the interests they

aim to protect.5 Parental notification laws are enacted not only
arise from regulating a particular method of abortion, or from

barring abortion entirely." Id. The risk is also the same when it

arises from a minor's inability or unwillingness to notify her

parents. The need for a health exception arises from the potential

for risk to a woman's health, not from the source of that risk.

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in furtherance of the state's "interest in the potentiality of

human life," Roe, 410 U.S. at 164, but also in the interest of

protecting minors from undertaking the risks of abortion without

the advice and support of a parent. In considering an abortion

regulation based on interests other than the one identified in Roe,

however, the Supreme Court has determined that it "cannot see how

the interest-related differences could make any difference to the

. . . application of the 'health' requirement." Stenberg, 530 U.S.

at 931; see also Casey, 505 U.S. at 877 ("[A] statute which, while

furthering the interest in potential life or some other valid state

interest, has the effect of placing a substantial obstacle in the

path of a woman's choice cannot be considered a permissible means

of serving its legitimate ends." (emphasis added)) (plurality

opinion). The Constitution requires a health exception even when

the State's interest in regulation is "compelling." See Roe, 410

U.S. at 163; see also Stenberg, 530 U.S. at 931 ("[A] State may

promote but not endanger a woman's health when it regulates the

methods of abortion."). Thus, regardless of the interests served

by New Hampshire's parental notice statute, it does not escape the

Constitution's requirement of a health exception.
6 A review of the Hodgson briefs indicates only one instance in

which the impact of the parental notification statute on minors in

need of an abortion for health reasons is discussed. In response

to Minnesota's cross-petition to appeal the Eighth Circuit's

determination that a two-parent notice requirement was

unconstitutional in the absence of a judicial bypass, CrossRespondents discussed the lengths to which some minors would go to

avoid having to notify a parent. This might include delaying or

foregoing abortion even when "serious health problems . . .

necessitate an immediate abortion." Brief for Cross-Respondents at

15, Minnesota v. Hodgson, 497 U.S. 417 (No. 88-1309). Such health

problems, Cross-Respondents explained, were not covered by the

statute's death exception. Id. at 15 n.29. There was no argument

that the notice requirement was unconstitutional because it lacked

a health exception for such circumstances; rather, CrossRespondents argued that a judicial bypass provision was

constitutionally required, in part so that a minor would not feel

compelled to forego an abortion needed for health reasons in order

to avoid notifying her parents. Cross-Petitioners responded that

no evidence had been provided of circumstances in which health

problems short of a threat to a minor's life would necessitate

abortion. Reply Brief of Cross-Petitioners at 17-18, Minnesota v.

Hodgson, 497 U.S. 417 (No. 88-1309). The Supreme Court addressed

neither argument, although a majority did find the two-parent

notice requirement unconstitutional in the absence of judicial

bypass. Hodgson, 497 U.S. at 455.

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The Attorney General and amici also argue that our

decision should be controlled by Hodgson v. Minnesota, 497 U.S. 417

(1990), in which the Supreme Court upheld a parental notification

statute that contained no health exception. However, as noted by

the district court, the Hodgson Court did not consider a challenge

to that statute's lack of a health exception,6 and even if it had,

the subsequent decisions in Casey and Stenberg would nevertheless

require a health exception in the instant case. The additional

cases cited by the Attorney General and amici as examples of

parental notification or consent statutes upheld without a health
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exception are all similarly distinguishable. Only three times

since Roe has the Supreme Court addressed a clear challenge to an

abortion regulation's lack of a health exception. In all three,

the Court has indicated that an exception must be provided when the

restriction would place a woman's health at risk. See Stenberg,

530 U.S. at 930-38 (requiring health exception for "partial-birth

abortion" ban); Casey, 505 U.S. at 879-80 (reading medical

emergency exception to include threat to health); Thornburgh v. Am.

Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 768-71

(1986) (finding statute requiring presence of second physician for

post-viability abortion facially invalid for lack of medical

emergency exception), overruled on other grounds, Casey, 505 U.S.

at 882.

Since Stenberg, at least two circuit courts have applied

the health exception requirement to parental notice or consent

laws. In Planned Parenthood of the Rocky Mountains Services, Corp.

v. Owens, 287 F.3d 910, 915-16 (10th Cir. 2002), the Tenth Circuit

held that, because circumstances existed in which a pregnancy

complication could seriously threaten a pregnant minor's health, a

Colorado parental notification law similar to the New Hampshire Act

was facially invalid for lack of a health exception. Similarly,

the Ninth Circuit recently struck down an Idaho parental consent

statute, finding that "[a] health exception is as requisite in

statutory or regulatory provisions affecting only minors' access to
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abortion as it is in regulations concerning adult women." Planned

Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 922-24 (9th Cir.

2004) (finding Idaho statute's health exception overly narrow). We

agree, and therefore affirm the district court's holding that the

New Hampshire Act is constitutionally invalid in the absence of a

health exception.

Acknowledging that the Act contains no explicit health

exception, the Attorney General argues that other provisions of New

Hampshire law provide a functional equivalent. None of the

proffered statutes, however, is adequate. RSA 153-A:18 precludes

civil liability for health professionals who render emergency

medical care without consent, but it does not preclude criminal

liability. RSA 676:6, VII(b) permits physicians and their

assistants to use force in providing emergency medical care when no

one competent to consent to such care is available. While RSA

676:6, VII(b) may preclude criminal liability for assault, it would

not insulate a physician from criminal liability for violating the

Act's notification provisions. See RSA 132:27 (providing that

violation of the Act's notice requirement is a misdemeanor).

Moreover, the proffered statutes insulate medical personnel from

civil liability or assault charges that arise from giving treatment

without consent; they do not provide such protection when the legal

action arises from giving treatment to a consenting minor without

first providing forty-eight hours' notice to her parent.
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For the first time, in this appeal, the Attorney General

also cites RSA 627:3, I, which codifies the "competing harms"

defense to criminal liability for those who violate the law in

order to avoid harm that "outweigh[s], according to ordinary

standards of reasonableness, the harm sought to be prevented" by

the criminal provision. Although this provision has the potential

to protect against criminal liability under the Act, it cannot

preclude civil liability. Moreover, the provision would leave

providers uncertain whether, in any given circumstance, providing

an abortion in violation of the Act would meet the "ordinary

standards of reasonableness."

Even if these statutes could be cobbled together to

preclude all civil and criminal liability for medical personnel who

violate the Act's notice requirements in order to preserve a

minor's health, we would not view them as equivalent to the

constitutionally required health exception. The basic canons of

statutory construction in New Hampshire require us to look first to

a statute's plain meaning, and when it is clear and unambiguous, to

apply the statute as written. See, e.g., Appeal of Astro

Spectacular, Inc., 639 A.2d 249, 250 (N.H. 1996). The Act clearly

states that "[n]o abortion shall be performed upon an unemancipated

minor . . . until at least 48 hours after written notice" to a

parent. RSA 132:25. Three explicit exceptions to this rule are

provided: (1) when abortion is necessary to prevent the minor's
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death; (2) when a parent certifies in writing that he or she has

been notified; and (3) when a court grants a judicial bypass. RSA

132:26, I, II. The New Hampshire legislature's intent that

abortions not in compliance with the Act's notification provisions

be prohibited in all but these three circumstances is clear. See

St. Joseph Hosp. of Nashua v. Rizzo, 676 A.2d 98, 100 (N.H. 1996)

(espousing expressio unius standard of statutory construction).

The earlier-enacted statutory provisions cited by the Attorney

General cannot be read to supercede this intent. See Petition of

Dunlap, 604 A.2d 945, 955 (N.H. 1992) ("'When a conflict exists

between two statutes, the later statute will control, especially

when the later statute deals with a subject in a specific way and

the earlier enactment treats the subject in a general fashion.'"

(quoting Bd. of Selectmen v. Planning Bd., 383 A.2d 1122, 1124

(N.H. 1978)).

Finally, the Attorney General argues that the Act's

judicial bypass mechanism allows prompt authorization of a healthrelated abortion without notice. The Act provides that such

proceedings "shall be given such precedence over other pending

matters so that the court may reach a decision promptly and without

delay," provides minors 24-hour, 7-day access to the courts, and

provides for expedited appeal. RSA 132:26, II(b)-(c). However,

the Act allows courts seven calendar days in which to rule on

minors' petitions, and another seven calendar days on appeal.
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Delays of up to two weeks can therefore occur, during which time a

minor's health may be adversely affected. Even when the courts act

as expeditiously as possible, those minors who need an immediate

abortion to protect their health are at risk. Due to this delay,

the Act's bypass provision does not stand in for the

constitutionally required health exception. See Thornburgh, 476

U.S. at 768-71 (finding statute facially invalid for failing to

provide health exception to delay caused by awaiting presence of

second physician).

The New Hampshire Act contains no explicit health

exception, and no health exception is implied by other provisions

of New Hampshire law or by the Act's judicial bypass procedure.

Thus, the Act is facially unconstitutional.

B. Death exception

Just as it requires a health exception, the Constitution

also requires an exception to abortion restrictions when the life

of a pregnant woman is in danger. Stenberg, 530 U.S. at 931

("[T]he governing standard requires an exception 'where it is

necessary, in appropriate medical judgment for the preservation of

the life or health of the mother.'" (quoting Casey, 505 U.S. at

879)). Accordingly, the New Hampshire Act waives its parental

notice requirement when a physician can certify that abortion is

"necessary to prevent the minor's death and there is insufficient

time to provide the required notice." RSA 132:26, I(a). Appellees
7 The plaintiffs correctly identify that the Act, as currently

formulated, would require a physician to use procedures that pose

more risk to her patient's health in order to comply with the

necessity provision of the death exception. See Colautti v.

Franklin, 439 U.S. 379, 400 (1979) ("[T]he word 'necessary'

suggests that a particular technique must be indispensable to the

woman's life or health -- not merely desirable -- before it may be

adopted."). Because we have already found unconstitutional the

Act's failure to provide a health exception -- which would remedy

this problem by permitting abortion even in cases where a minor's

death could be avoided by other, riskier means -- we do not address

this flaw as a separate ground for constitutional challenge.

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argue that this death exception is unconstitutionally narrow

because (1) it is not possible for a physician to determine with

any certainty whether death will occur before the notice provisions

could be complied with; (2) it does not allow for circumstances in

which abortion is the best, but not the only, option for saving a

minor's life;7 and (3) it does not permit abortion providers to

rely on their own good faith judgment about whether an abortion is

necessary. The Attorney General does not refute these charges, but

responds that the Act is sufficiently specific to give notice of

prohibited conduct, and that a scienter requirement can be read

into the Act from New Hampshire law.

A minimum of forty-eight hours is necessary for

compliance with the Act's notification requirement. RSA 132:25, I.

Dr. Wayne Goldner, a named plaintiff in this case, provided

unopposed testimony that physicians cannot predict with adequate

precision what course medical complications will take, and thus

cannot always determine whether death will occur within this time
-21-

window. Consequently, the time component of the Act's death

exception forces physicians either to gamble with their patients'

lives in hopes of complying with the notice requirement before a

minor's death becomes inevitable, or to risk criminal and civil

liability by providing an abortion without parental notice. See

Declaration of Wayne Goldner, M.D., at ¶ 17 ("[T]he Act will force

me to choose between following the law and letting my patient's

condition deteriorate, possibly past the point of being able to

save her life at all, and alternatively providing appropriate

medical care to my patient and risking criminal prosecution and

being sued by her parents."). The threat of such sanctions will

have a "profound chilling effect on the willingness of physicians

to perform abortions" when a minor's life is at risk. Colautti,

439 U.S. at 396. Thus, the Act's death exception is drawn too

narrowly to protect minors in need of a life-saving abortion.

The Attorney General apparently concedes that an abortion

provider must be able to rely on his or her good faith medical

judgment in determining whether her patient's life is in danger.

See Colautti, 439 U.S. at 395 ("We need not now decide whether,

under a properly drafted statute, a finding of bad faith or some

other type of scienter would be required before a physician could

be held criminally responsible for an erroneous determination of

viability. We reaffirm, however, that 'the determination of

whether a particular fetus is viable is, and must be, a matter for
-22-

the judgment of the responsible attending physician.'"). The

Attorney General argues that RSA 626:2, I, which states that "[a]

person is guilty of a . . . misdemeanor only if he acts purposely,

knowingly, recklessly or negligently, as the law may require, with

respect to each element of the offense," can be read together with

the Act to provide the necessary scienter requirement. According

to the Supreme Court of New Hampshire, "[w]here a specific mental

state is not provided for the offense," RSA 626:2, I(a) requires

"proof of a culpable mental state which is appropriate in light of

the nature of the offense and the policy considerations for

punishing the conduct in question." State v. Bergen, 677 A.2d 145,

146 (N.H. 1996) (determining requisite mental state for indecent

exposure). It is not clear, however, which of the four scienter

requirements would be imposed in this circumstance. The definition

of negligence imposes an objective reasonableness standard, see RSA

626:2, II (d), thus, a physician who acts on a good faith belief

that abortion is necessary to save a patient's life could

nonetheless face criminal or civil liability if a judge or jury

later found that the physician's assessment was unreasonable. See

Voinovich, 130 F.3d at 205 ("In this area [of medical necessity]

where there is such disagreement, it is unlikely that the

prosecution could not find a physician willing to testify that the

physician did not act reasonably.").
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As the district court held, we cannot construe the Act to

preclude liability for good faith judgments "unless such a

construction is reasonable and readily apparent." Heed, 296

F. Supp. 2d at 66-67 (quoting Stenberg, 530 U.S. at 944). The Act

gives no indication that the negligence standard set out in RSA

626:2, I should not be applied. Thus, a physician cannot know

whether his or her determination that a minor's life is at risk

will be judged according to a standard (e.g., knowingly) that

respects her good-faith medical assessment, or by an objective

standard (negligently) that would leave the physician's judgment

open to post hoc second guessing. The resulting uncertainty would,

again, impermissibly chill physicians' willingness and ability to

provide lifesaving abortions. See Voinovich, 130 F.3d at 205

(finding medical emergency exception unconstitutionally vague

"because physicians cannot know the standard under which their

conduct will ultimately be judged"). As Dr. Goldner explained,

"the Act forces doctors to think about criminal prosecution at a

time when we need to be concentrating on doing what is best for our

patients, thus creating unnecessary risk to patients' health and

lives." Declaration of Wayne Goldner, M.D., at ¶ 19. That risk

constitutes an undue burden for minors in need of life-saving

abortions.

Because its time requirement is drawn too narrowly, and

because it fails to safeguard a physician's good-faith medical
-24-

judgment that a minor's life is at risk against criminal and civil

liability, the Act's death exception is unconstitutional.
-25-

C. Confidentiality

The Act provides for judicial bypass of its notice

provisions if, after a hearing, a judge "determines that the

pregnant minor is mature and capable of giving informed consent to

the proposed abortion," or, if she is not capable of giving

informed consent, that "the performance of an abortion upon her

without notification of her parent, guardian, or conservator would

be in her best interests." RSA 132:26, II; cf. Bellotti v. Baird,

443 U.S. 622, 643-44 (1979) (requiring parental consent laws to

provide for judicial bypass on same grounds). Appellees argue that

the Act does not adequately provide for the confidentiality of

these judicial bypass procedures. The Act indicates that

"[p]roceedings in the court . . . shall be confidential," and "[a]n

expedited confidential appeal shall be available." RSA 132:26,

II(b)-(c).

Inadequate confidentiality provisions "raise the specter

of public exposure and harassment of women who choose to exercise

their personal, intensely private, right, with their physician, to

end a pregnancy." Thornburgh, 476 U.S. at 767; see also Bellotti

v. Baird, 443 U.S. 622, 644 (1979) (finding that judicial bypass

proceeding "must assure that a resolution of the issue, and any

appeals that follow, will be completed with anonymity"). In the

instant case, a lack of confidentiality would also create a

significant risk that a minor's parents could learn of her
-26-

pregnancy and desire for an abortion, resulting in the very harms

sought to be avoided by the bypass procedure. Alternatively, a

minor might be compelled to delay or decline to seek an abortion

out of fear that her parents would find out. Thus, for a large

fraction of minors eligible for judicial bypass, inadequate

confidentiality would impose an undue burden.

Confidentiality provisions must "take reasonable steps to

prevent the public from learning of the minor's identity," but the

Supreme Court has "refuse[d] to base a decision on the facial

validity of a statute on the mere possibility of unauthorized,

illegal disclosure by state employees." Akron Ctr., 497 U.S. at

513. Considerable grey area is left between these two standards.

Because we have already found the Act in its entirety

unconstitutional on other grounds, however, we find it unnecessary

to delve further into an evaluation of its confidentiality

provisions.

III. Conclusion

For the reasons stated above, we affirm the district

court's order declaring the Act unconstitutional and enjoining its

enforcement.

Affirmed.