Full opinion text
ALAN E. NORRIS, J., delivered the opinion of the court. DAVID A. NELSON, J. (pp. 467-68), delivered a separate concurring opinion. KEITH, J. (pp. 468-97), delivered a separate dissenting opinion. ALAN E. NORRIS, Circuit Judge. Memphis Planned Parenthood, Inc., (“MPP”) petitioned the district court for a preliminary injunction preventing the State of Tennessee from enforcing its Parental Consent for Abortion by Minors Act (“Consent Act” or “Act”). The district court granted the injunction, and the state appeals. I. BACKGROUND In 1995, the Tennessee General Assembly passed the Consent Act, making it illegal for a physician to perform an abortion on an unemancipated minor, unless the minor obtains the consent of one parent or receives a waiver of the consent requirement through a judicial bypass procedure. Tenn.Code Ann. (“TCA”) §§ 37-10-301 through 37-10-307 (1998). MPP sought a preliminary injunction against enforcement of the Act. The district court granted the injunction, ruling that the ju7 dicial bypass procedure was not sufficiently expeditious and did not provide sufficient anonymity. The state appealed. Rule 24 of the Rules of the Supreme Court of Tennessee (“Rule 24”) elaborates on the procedures to be followed in pursuing a judicial bypass. During the pendency of the state’s appeal from the original grant of the preliminary injunction, the Supreme Court amended Rule 24. This court thereafter vacated the injunction as moot and remanded the case. Memphis Planned Parenthood, Inc. v. Sundquist, No. 96-6104, 1997 WL 436566 (6th Cir.1997) (unpublished opinion). The district court subsequently determined that despite the amendments to Rule 24, a preliminary injunction should issue. That decision is the subject of the instant appeal. MPP challenged the following five provisions of the judicial bypass procedure found in either the Consent Act or Rule 24: (1). The twenty-four hour time to appeal: A minor seeking to bypass the consent requirement must petition the juvenile court. TCA § 37-10-303(b). So long as the juvenile court rules within forty-eight hours of the filing of the minor’s petition, a notice of appeal must be filed within twenty-four hours of the decision of the juvenile court. TCA § 37-10-304(g). If the juvenile court does not rule within forty-eight hours, the petition is deemed denied and the minor may file an appeal at any time. TCA § 37-10-304(d), (g). (2). The statement of mental capacity: Rule 24(5)(a)(iv) requires the minor seeking to judicially bypass the consent requirement to state in her petition “whether the applicant is of sound mind and has sufficient intellectual capacity to consent to the abortion.” (3). The venue restriction: Although TCA § 37-10-303(b) allows the minor seeking a judicial bypass to petition “the juvenile court of any county of this state,” Rule 24(4) requires the minor to file her petition in either the county in which she resides or the county in which the abortion is sought. (4). De novo hearing by circuit court: If the juvenile court denies the petition, the minor may appeal to the circuit court. TCA § 37-10-304(g) provides that review of the juvenile court decision shall be de novo, and Rule 24(12)(d) allows the circuit court to call witnesses. (5). The pre-petition physician consultation: The model petition appended to Rule 24 would have the minor swear that she “has consulted with the physician who is to perform the abortion, or with a referring physician,” concerning the abortion. According to MPP, minors who feel they cannot involve their parents in their abortion decision face logistical problems in obtaining an abortion. MPP points to a number of reasons why a minor might choose not to involve her parent in her decision, such as: fear that her parents will not consent because of pro-life or strongly held religious views; fear of physical abuse if a parent learns of the pregnancy; worry over causing her parent stress; inability to involve a parent where the pregnancy resulted from incest; and inability to notify unavailable parents. The provisions in the bypass procedure set out above, MPP asserts, unnecessarily require the minor to make phone calls, to travel to court and to a physician, to secure absences from home and school, and to incur additional expense. MPP claims that a minor will face great difficulty in meeting these logistical demands while keeping her parents unaware of her pursuit of a judicial bypass. II. DISCUSSION “This court reviews a challenge to the grant or denial of a preliminary injunction under an abuse of discretion standard and accords great deference to the decision of the district court. The district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Blue Cross & Blue Shield Mutual of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted). “When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the mov-ant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Id. (citations omitted). The district court determined that MPP had demonstrated a strong likelihood of success on the merits and that the other preliminary injunction factors weighed in favor of granting the injunction. The district court also ruled that, under Tennessee law, the provisions it found likely unconstitutional should not be severed from the rest of the judicial bypass procedure. We hold that the district court abused its discretion in finding that MPP had demonstrated a strong likelihood of success on the merits. Alternatively, we hold that the district court abused its discretion in not severing the provisions it found offensive. A. Likelihood of success on the merits The Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to include a woman’s right to an abortion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and affirmed the central holding of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). A plurality of the justices in Casey recognized the weighty concerns of the state in “the protection of potential life” and reasoned that, although “the woman has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the state is prohibited from taking steps to ensure that this choice is thoughtful and informed.” Id. at 871-72, 112 S.Ct. 2791. The plurality determined that regulations the state places on abortion prior to viability should be analyzed under the “undue burden” standard. A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And 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. Id. at 877,112 S.Ct. 2791. Although only a plurality of the justices employed the undue burden test, the courts of appeals, including this court, have used it in evaluating abortion regulations. See Women’s Med. Prof'l Corp. v. Voinovich, 130 F.3d 187 (6th Cir.1997) (employing undue burden standard), cert. denied, — U.S. —, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998). The undue burden test is directed at two principles. First, a state may impose restrictions on the woman’s access to an abortion that are designed to help her make the most informed decision or that serve some other valid state interest; however, a state may not erect procedural hurdles in the path of a woman seeking an abortion simply to make it more difficult for her to obtain an abortion. Second, any procedural restriction must not be substantial. The Constitution extends substantive due process protections to minors as well as adults. Bellotti v. Baird, 443 U.S. 622, 633, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). However, the constitutional rights of children are not co-extensive with those of adults because of “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Id. at 634, 99 S.Ct. 3035. In reconciling these principles, the Supreme Court in Bellotti II held that while a state may require the consent of one or both parents before allowing a minor to obtain an abortion, it must provide a way for the minor to bypass the consent requirement and obtain the abortion. Id. at 643, 99 S.Ct. 3035. The Court established the following guidelines for determining whether a state’s bypass procedure violated the minor’s right to an abortion: A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. Id. at 643-44, 99 S.Ct. 3035. Moreover, Bellotti II indicated that a pregnant minor has the right to seek judicial bypass without parental involvement. The Massachusetts statute at issue in Bel-lotti II provided for limited judicial bypass, yet it also required that any available parent be notified of the minor’s attempt to obtain judicial bypass. Id. at 646, 99 S.Ct. 3035. The Court ruled that because there were parents who would obstruct a minor’s access to an abortion when she is sufficiently mature to make the decision on her own or when the abortion is in her best interests, notifying the parents of the pending bypass proceedings “would impose an undue burden upon the exercise of minors of the right to seek an abortion.” Id. at 647, 99 S.Ct. 3035. 1. The twenty-four hour appeal provision Under the Act, if the juvenile court rules within forty-eight hours of the filing of the minor’s bypass petition, a notice of appeal must be filed within twenty-four hours of the decision of the juvenile court. If the juvenile court does not rule within forty-eight hours, the petition is deemed denied, and the minor may appeal at any time. TCA § 37-10-304(d), (g). The twenty-four hours begins to run from the time of the juvenile court’s decision, not from the time the minor receives notice of the ruling. TCA § 37-10-304.(g). The district court concluded that MPP likely could prove that the notice of appeal provision imposes an undue burden on the minor seeking an abortion because it impermissibly shifts to the pregnant minor the burden of acting expeditiously. MPP argues that the twenty-four hour provision burdens a minor seeking judicial bypass because it creates logistical problems for her in the form of making telephone calls during a particular time and forcing her to return to the courthouse to file the notice of appeal within a short time-frame. We believe that the twenty-four hour appeal provision does not place an undue burden upon a minor’s ability to pursue a judicial bypass. First, Tenn.R.App.Proc. 4(d) allows civil litigants to file notices of appeal in advance. Thus, a minor may file a notice of appeal at the conclusion of the hearing on her petition while already at the courthouse. See Gaskill v. Gaskill, 936 S.W.2d 626, 630 n. 4 (Tenn.Ct.App.1996) (notice filed prematurely provides adequate notice to adverse party under Tenn.R.App.Proc. 4(d)). Additionally, if she has a lawyer, Tennessee’s Notice of Appeal form does not exclude advance authorization of an appeal. Tenn.RApp. Proc., app. A., Form 1 (Michie 1999). She may authorize an appeal, leaving the date of the decision blank, and instruct her lawyer to file the notice when the decision is rendered. The ability to arrange for an appeal in advance of a decision by the court, either through her lawyer or by filing a notice of appeal prematurely, greatly alleviates the need to be in contact with and return to the court. Second, should the minor not arrange for an appeal in advance of the juvenile court’s decision, the window of time within which the minor must remain in contact with the court is only forty-eight hours. If within forty-eight hours of filing her petition she has not heard otherwise, she knows her petition has been denied and may appeal at any time. Although we recognize that making phone calls may raise some difficulties for a minor attempting to act in secret, such a burden cannot be characterized as substantial, particularly where the phone calls need only be made over a forty-eight hour period. Third, the juvenile court is required to advise the minor that she has the right to court-appointed counsel, and the state is required to “provide a court-appointed advocate in each judicial district to give information regarding the legal process to the minor and to coordinate with the court-appointed counsel.” TCA § 37-10-304(c)(1). These provisions assure a minor access to assistance in navigating the appeals process. Also, the clerk of the court has the responsibility of notifying the minor of the court’s decision by delivering a copy of the order to the minor’s attorney. Rule 24(10). Court-appointed counsel would have a professional obligation to stay in touch with the juvenile court during the brief forty-eight hour time period during which it could render a decision to insure that a notice of appeal is timely. Furthermore, since the lawyer would be attending the hearing with the minor, in order to expedite the process she could be asked then whether she wanted to appeal if she lost. Lastly, the appeal provision expedites the judicial bypass process and thereby serves the significant state interest in protecting the health of the minor because, as MPP itself notes, the longer the minor must wait to have an abortion, the greater her health risks become. A similar twenty-four hour appeal provision was upheld in Manning v. Hunt, 119 F.3d 254 (4th Cir.1997). There the court ruled that a twenty-four hour appeal provision found in a North Carolina bypass procedure was not an undue burden, in part because that statute, like the Tennessee Consent Act, required the state to provide court-appointed counsel at the minor’s request. Id. at 2.75. Although the statute in Manning, unlike the Tennessee Consent Act, required the North Carolina district courts to make a decision at the conclusion of the initial hearing, thereby foreclosing any logistical problems in learning of the court’s decision, this difference does not tip the scales in favor of unconstitutionality in view of the safeguards provided by the Tennessee procedure. In addition, Rule 24(ll)(d) states that the “court should endeavor to rule at the conclusion of the hearing,” thus making any difference between the Tennessee and the North Carolina bypass procedures even less significant. See also Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 491-92 n. 16, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (quoting portions of a Missouri statute containing a twenty-four-hour notice of appeal and stating that “this section provides the framework for a constitutionally sufficient means of expediting judicial proceedings”) (Rehnquist, C.J., concurring with Powell, J.). 2. The statement of mental capacity Rule 24(5)(a)(iv) requires the minor seeking to judicially bypass the consent requirement to state in her petition “whether the applicant is of sound mind and has sufficient intellectual capacity to consent to the abortion.” The district court held that this provision was likely unconstitutional because it deterred minors who were not of sound mind and sufficient intellectual capacity from pursuing the judicial bypass procedure and therefore subverted the Bellotti II requirement that a judicial bypass be available for those minors in whose best interests it is to have an abortion. Such a holding is unwarranted. Rule 24 requires only that the minor state “whether [she] is of sound mind and has sufficient intellectual capacity”; it does not foreclose her from seeking an abortion if she does not have that capacity. The Rule thus asks for one form of proof for determining whether the minor satisfies the maturity prong of Bellotti II. Although item six of the model application contained in the appendix to the Rule requires the minor to state affirmatively that she is of “sound mind and has sufficient intellectual capacity,” according to Rule 24(6) a minor’s application need only be in substantial conformity with the model application. See also Ashcroft, 462 U.S. at 479 n. 4, 493, 103 S.Ct. 2517 (1983) (quoting portions of the Missouri parental consent statute requiring the minor or her next friend to state that the minor is of sound mind and sufficient intellectual capacity and stating that the statute “avoids any constitutional infirmities”) (Rehnquist, C.J., concurring with Powell, J.). 3. The venue restriction Although TCA § 37-10-303(b) permits the minor seeking judicial bypass to petition “the juvenile court of any county of this state,” Rule 24(4) requires the minor to file her petition in either the county in which she resides or the county in which the abortion is sought. The district court found that the Rule “affirmatively creates a substantial risk that a young woman’s confidentiality will be compromised, either by direct discovery in her home county or because of her prolonged absence traveling to the county where the abortion will be performed.” In coming to this conclusion the district court incorrectly assumed that the Rule trumps the Act. When a rule of court conflicts with a legislative act, the general rule is that the act controls. See, e.g., Amsler v. United States, 381 F.2d 37, 42-43 (9th Cir.1967); Nichols v. King, 190 Tenn. 573, 584, 230 S.W.2d 1006, 1011 (1950). Tennessee has a mechanism by which procedural rules promulgated by the Tennessee Supreme Court may be approved by resolution of both houses of the Tennessee General Assembly. TCA §§ 16-3-401, 16-3-404. After such approval, the rules control despite conflicting provisions of the Tennessee Code. See Mid-South Pavers, Inc. v. Arnco Const, Inc., 771 S.W.2d 420, 422 (Tenn.Ct.App.1989) (Tennessee Rules of Civil Procedure, promulgated by the Tennessee Supreme Court and approved by joint resolution of the Tennessee General Assembly, trump conflicting provisions of the Tennessee Code). However, neither party has presented evidence to this court that Rule 24 of the Rules of the Supreme Court of Tennessee has been approved by joint resolution, nor has our independent research discovered any such evidence. We are confident that under Tennessee law the venue provision found in the Consent Act prevails over that found in Rule 24(4). The venue provision in the Consent Act does not burden a minor seeking a judicial bypass. Indeed, it does not appear that a greater choice of venue could be provided. 4. De novo hearing requirement TCA § 37-10-304(g) provides that review of an adverse decision by the juvenile court of a minor’s bypass petition shall be de novo by the state’s circuit court, and Rule 24(12)(d) allows that court to call witnesses. The district court held that the de novo hearing provision was likely unconstitutional because of the added burden of a second trip to the courthouse. The state argues that de novo review actually benefits a minor as it increases her chances of overturning an adverse ruling by the juvenile court. The Fourth Circuit considered an identical provision in Manning v. Hunt, supra, and held that it was likely constitutional. While it may be that a second hearing could add stress and logistical difficulty, a minor whose initial petition is denied would surely prefer the expanded opportunities afforded her by de novo review. The issues raised by the bypass petition— whether the minor is of sound mind and sufficient intellectual capacity to make a decision about abortion or the abortion is in her best interests — are particularly fact sensitive, and an appellate court reviewing only the factual record made in the trial court would be expected to accord great deference to the trial court’s view of the consequences of that record. See Collins v. Howmet Corp., 970 S.W.2d 941, 943 (Tenn.1998) (“When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to the trial court’s factual findings.”); In the matter of Michael Lee Parsons, 914 S.W.2d 889, 895 (Tenn.Ct.App.1995) (where “trial judge as the trier of fact had the opportunity to observe [the] parties and their manner and demeanor on the witness stand, ... the weight, faith and credit accorded to their testimony by the trial judge is entitled to great weight in this Court”). The district court reasoned that de novo review would not amount to an undue burden if it were triggered at the minor’s option, rather than permitting the circuit court to control the proceedings. We are at a loss to understand how it can be seriously contended that by affording a reviewing court additional tools to carry out its responsibility of protecting the interests of a petitioning minor, the Tennessee General Assembly has placed a substantial obstacle in her path that hinders her choice in any meaningful way. One could just as unconvincingly argue that the initial hearing in juvenile court is more burdensome than allowing the minor to make her case entirely in writing. Whatever burden is placed upon the minors by a hearing requirement at both the juvenile and circuit court levels best serves the purpose of assuring that those minors who qualify for judicial bypass receive it and that those who do not qualify must obtain parental consent. 5. The pre-petition physician consultation The model petition appended to Rule 24 would have the minor swear that she “has consulted with the physician who is to perform the abortion, or with a referring physician” concerning the abortion. The district court held that this requirement likely places an unconstitutional burden on the minor. According to the district court, arranging for and going to the consultation, all the while keeping it secret, would create many difficulties for minors seeking abortions. Recognizing that the minor must consult with a physician sometime before the abortion is performed, MPP argues on appeal that the requirement is unduly burdensome in that it forces the minor to consult with a physician prior to filing her petition, whereas absent the requirement she could consult with a physician at any time, including the day the procedure is to be performed. However, as the state notes, nothing in the Consent Act demands that the consultation be face-to-face, and telephone consultation would decrease the logistical problems. In addition, this requirement of a pre-petition consultation with a physician seems designed to assist the juvenile court in its determination of whether the minor is capable of making the decision or whether the abortion is in her best interests. Accordingly, requiring an early, as opposed to later, consultation does not amount to an undue burden, especially as it is aimed at “inform[ing] the woman’s free choice, not hinder[ing] it.” Casey, 505 U.S. at 877, 112 S.Ct. 2791. The Court in Casey held that a state can require that a doctor give a woman certain information before she may have an abortion. 505 U.S. at 884, 112 S.Ct. 2791. Due to “the peculiar vulnerability of children; their inability to make crucial decisions in an informed, mature manner; and the importance of the parental role in child rearing,” Bellotti, 443 U.S. at 634, 99 S.Ct. 3035, the requirement is particularly justified where the person seeking an abortion is a minor. Therefore, MPP did not demonstrate a likelihood of success on the merits, as regards the pre-petition physician consultation requirement. Because our determination that MPP did not demonstrate a likelihood of success on the merits regarding any of the challenged provisions is sufficient to reverse the district court’s grant of the injunction, we decline to address the district court’s ruling on the other three injunction factors. B. Severability The district court ruled that the provisions of the Consent Act and Rule 24 it found objectionable should not be severed. State law governs the question of severability. Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996). Tennessee law permits severance only when “it is made to appear from the face of the statute that the legislature would have enacted it with the objectionable features omitted.” State v. Harmon, 882 S.W.2d 352, 355 (Tenn.1994) (citations omitted). Both parties agree that the approach to severability should be the same when the provision at issue is found in Rule 24 rather than the Consent Act itself. We hold that the district court abused its discretion in enjoining the state from implementing the Consent Act and Rule 24 rather than severing the provisions it found offensive and leaving the remainder of these Tennessee laws intact. In determining whether a provision should be severed, the proper inquiry is whether the Tennessee General Assembly or the Tennessee Supreme Court would choose, on the one hand, having no Consent Act or Rule 24 at all and, on the other, passing the Consent Act or promulgating Rule 24 without the offensive provisions. The question is not whether the judicial bypass procedure without the severed provisions is the procedure either the Tennessee General Assembly or the Tennessee Supreme Court would have established had either known certain provisions were unconstitutional. If the challenged provisions are severed from the judicial bypass procedure, the remaining portions of the Consent Act are “capable of enforcement and fairly answer[ ] the object of its passage.” State v. Tester, 879 S.W.2d 823, 830 (Tenn.1994). First, the twenty-four hour appeal, if severed, would be replaced by TCA § 37-1-159(g), which provides that “appeals in all other civil matters heard by the juvenile court shall be governed by the Tennessee Rules of Appellate Procedure.” Tenn. R.App. Proc. 4 allows for an appeal within thirty days after entry of the final judgment. Second, the statement of mental capacity requirement could be severed without impairing the juvenile court’s ability to process applications for judicial bypass. Whether the minor is of sound mind and sufficient mental capacity is information that can be gathered at the juvenile court proceeding. Third, should the venue restriction in Rule 24(4) be enjoined, TCA § 37-10-303(b) — the venue provision found in the Consent Act itself — would step back in to allow the minor to file her petition in “the juvenile court of any county of this state.” Fourth, without the de novo hearing provision, the Tennessee circuit courts could still review the decision of the juvenile court on the record in the usual manner. Fifth, if the state is enjoined from enforcing the pre-petition physician consultation requirement, the juvenile court may still make a determination as to the minor’s need for an abortion or her mental capacity to make the abortion decision on her own by calling witnesses. Certainly the Tennessee General Assembly and the Tennessee Supreme Court would prefer the judicial bypass system as presently established in the Consent Act and Rule 24. However, TCA § 37-10-301(a) sets out the legislative intent, and all three state interests listed — protecting minors, fostering the family structure, and protecting the rights of parents — would be better served by a Consent Act with a judicial bypass procedure less the challenged provisions than no Consent Act at all. Therefore, the district court abused its discretion in failing to sever the portions of the Consent Act and Rule 24 that it found objectionable. III. For all the reasons set out above, the order of the district court is reversed, and the cause is remanded to the district court for further proceedings consistent with this opinion. . The dissenting opinion repeatedly asserts that we erroneously engage in de novo review of the district court's opinion. However, as Judge Nelson’s concurrence points out, we are bound to apply de novo review to questions of law. Although an "injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact,” a reversal is in order whenever the district court "improperly applied the governing law.” Mascio v. Public Employees Retirement Sys., 160 F.3d 310, 312 (6th Cir.1998); see also McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th Cir.1997). Thus, while we defer to the district court's determinations as to what burdens a minor may face in pursuing a judicial bypass, we review de novo the district court’s rulings as to whether these burdens are "undue” and therefore unconstitutional. . TCA § 37 — 1—159(g) states that appeals from decisions of the juvenile court such as the denial of a petition for a judicial bypass, shall be governed by the Tennessee Rules of Appellate Procedure. We assume that these rules continue to govern when not in conflict with rules particularly tailored for the judicial bypass proceeding found in the Consent Act and Rule 24. . The dissenting opinion repeatedly notes the district court's findings concerning the added difficulties imposed by the Consent Act on minors seeking a judicial bypass and reasons that because some minors will be precluded from effectively pursuing a judicial bypass, the burdens imposed by the Act are undue. However, every added procedure will necessarily cause some hardship, yet not every procedural obstacle to an abortion creates an undue burden. See Casey, 505 U.S. at 881— 86, 112 S.Ct. 2791 (upholding various provisions of a Pennsylvania abortion statute, despite recognizing that the added procedures will cause hardships to women seeking an abortion). In addition, any procedure will, in conjunction with some conceivable set of circumstances, prevent some minor from effectively pursuing a judicial bypass. Our responsibility is to determine which procedures are so onerous as to be “undue,” and the fact that some minors will be practically precluded by a procedure in conjunction with circumstance from pursuing a judicial bypass does not mean that the procedure is unconstitutional. . The dissent argues that Rule 24(5)(a)(iv) poses an undue burden because minors may misunderstand its requirements. While it may be, as the district court found, that some minors will misunderstand the requirements of the Rule and decline to file an application, the Rule is sufficiently clear so that it does not constitute an undue burden. A great many persons forfeit their rights from a failure to understand court or government rules frequently far more complicated than that involved here, but this does not mean that such rules are unconstitutional.
DAVID A. NELSON, Circuit Judge, concurring. Judge Norris’ temperate and dispassionate analysis of the question whether Tennessee’s Parental Consent for Abortion by Minors Act is likely to fail the “undue burden test” seems sound to me; I fully concur in his opinion. My purpose in writing separately is simply to offer a brief response to our dissenting colleague’s charge that my concurrence flies in the face of what I wrote earlier in Mascio v. Public Employees Retirement Sys. of Ohio, 160 F.3d 310 (6th Cir.1998), with respect to the “abuse of discretion” standard that governs our review of preliminary injunctions. At issue in Mascio was an Ohio statute that mandated a forfeiture of vested retirement benefits' — benefits that the plaintiff had a clear contractual right to receive. The Constitution of the United States expressly prohibits any state from passing such legislation: “No state,” the Constitution declares, “shall ... pass any ... Law impairing the Obligation of Contracts.... ” U.S. Const, art. I, § 10, cl. 1. In my view, therefore, the normal presumption of constitutionality did not apply to the Ohio statute being challenged in Mascio. The district court granted a preliminary injunction in that case largely on the strength of the plaintiffs “strong likelihood of success on the merits.... ” Id. at 313. Given the clear language of the Constitution, “strong likelihood of success” appeared to me to be something of an understatement — and the ultimate outcome of the case being a forgone conclusion, as I saw it, it seemed obvious to me that the district court had not abused its discretion in preliminarily enjoining enforcement of the Ohio statute. It was against this background that the opinion I wrote for the court in Mascio cited earlier case law suggesting that a preliminary injunction “will seldom be disturbed unless the district court ... [among other alternatives] improperly applied the governing law....” Id. at 312. And it was against this background that I quoted the observation of another panel that “[t]his court ‘will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.’ ” Id. at 313, quoting Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175 (6th Cir.1995). Nothing in Mascio requires us to affirm the preliminary injunction in the case at bar. Here — as was not true in Mascio— we are dealing with a state statute that is entitled to the usual presumption of constitutionality. Here — as was not true in Mascio — there is nothing in the language of the Constitution that purports to prohibit states from passing legislation of the sort being challenged. Here — as was not true in Mascio — it is my best judgment (a judgment, I submit, in which I am • not required to defer to the district court) that there is no strong likelihood of the plaintiff ultimately succeeding on the merits. And here — as was not true in Mascio — I believe that the district court improperly applied the governing law, that law being, in this case, the “undue burden test.” Judges can and do differ, not surprisingly, as to when a burden becomes constitutionally “undue.” But the question, I believe, is ultimately one of constitutional law — and the notion that, under Mascio, the district court’s “weighing and balancing of the equities” somehow diminishes my responsibility, as a member of this court, for making a judgment as to how the constitutional question will be resolved is a notion that strikes me as profoundly misguided.
KEITH, Circuit Judge, dissenting. Because I cannot remember a time in my thirty-two years as a jurist when I more strongly disagreed with a majority opinion, I vehemently dissent. The majority’s outcome-driven decision today ignores the standard of review- we are bound to employ in adjudicating such an appeal; perverts the law; and does violence to the constitutional rights and liberties guaranteed to every female in this country. In Roe v. Wade, 410 U.S. 113, 152-66, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, a pregnant woman has a constitutional right to chose to terminate her pregnancy before viability. Furthermore, the Court has held that a state may not require a minor female to obtain parental consent before exercising her right to choose to have an abortion unless an alternative bypass procedure is in place if she, for whatever reason, wishes to proceed without parental knowledge of her decision. Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (“Bellotti II ”). Moreover, the bypass procedure must “be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained,” Bellota II, 443 U.S. at 644, 99 S.Ct. 3035, such that the statutory requirements associated with the bypass procedure cannot impose an “undue burden” on the minor’s right to choose. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). Regardless of where an individual stands on the controversial topic of a woman’s right to undergo an abortion, including the right of a minor female to do so without parental consent, this is, in fact, the state of law which this court is obligated to follow. However, in reversing the district court’s imposition of a preliminary injunction against the enforcement of Tennessee’s Parental Consent for Abortions by Minors Act of 1995, Tenn.Code Ann. §§ 37-10-301 to -307 and Tennessee Supreme Court Rule 24 (collectively “the Act”) the majority engages in an inappropriate analysis under an erroneous standard of review, thereby disavowing its obligation to follow the law and Supreme Court precedent. The majority’s decision turns Roe, Bellota II, Casey, and their progeny on their heads inasmuch as the statutory requirements imposed by the Tennessee legislature make it a practical impossibility for a minor to obtain an abortion without first consulting or notifying a parent to seek the parent’s permission. That is to say, the majority’s overreaching holding effectively nullifies a minor female’s right to choose to terminate her pregnancy without parental consent as guaranteed to her by the Constitution and Supreme Court precedent, because to say that the minor female has the right to have an abortion without parental consent as long as she overcomes extreme logistical hurdles is to say that she has no right at all. The voices of our children, and in this case minor females in particular, are the voices which need to be listened to and heeded the most, and yet historically are the least likely to be heard. The majority’s decision today turns a deaf ear to the voices of pregnant minor females who may find themselves victims of incest or rape with no means of financial or emotional support, to the point that the court’s holding leaves these young girls with no voice and, as a result — no choice. It is a repugnant outcome from which I cannot distance myself far enough, and from which I therefore adamantly dissent. I. Standard of Review — Preliminary Injunction At the outset, I wish to emphasize the proper standard of review under which this court proceeds in reviewing a challenge to the grant of a preliminary injunction. Although the majority recites the proper standard in its decision, its recitation is nothing more than a mere expression of words where the majority goes on to employ a de novo standard of review in reaching its legally erroneous, result-driven holding. Our review of a district court’s decision to grant a preliminary injunction is extremely limited where we are required to accord great deference to the district court’s decision in determining whether the court abused its discretion in granting the preliminary injunction. Mascio v. Public Employees Retirement Sys., 160 F.3d 310, 312-13 (6th Cir.1998). As Judge Nelson recognized in Mascio: The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1977). In exercising its discretion with respect to a motion for a preliminary injunction, a district court must give consideration to four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998). In this circuit, “the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). The court “will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.” Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175 (6th Cir.1995). 160 F.3d at 312-13 (emphasis added). In the present case, Judge Nelson’s de-' cisión to join Judge Norris in reversing the district court’s order granting Memphis Planned Parenthood, Inc. (“MPP”) a preliminary injunction, flies in the face of his accurate acknowledgment and application of the standard of review set forth in Mascio. The facts of this ease hardly rise to the level of the “rarest of circumstances” for reversal of the district court’s preliminary injunction, particularly where the majority conspicuously fails to note any instance where the district court “relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Mascio, 160 F.3d at 312. On the contrary, it is the majority that relies upon clearly erroneous and speculative findings of fact, improperly applies the law — or applies no law at all, and engages in an erroneous de novo standard of review in perverting the law and using it as a subterfuge to achieve an end. As this dissent will demonstrate in the sections that follow, when one applies the appropriate standard of review to the district court’s order granting MPP a preliminary injunction, it is clear that the court did not abuse its discretion in concluding that there is a substantial likelihood that the five aspects of the Act at issue are unconstitutional, that the movant will suffer irreparable injury without the injunction, that the probability that the issuance of the injunction will cause substantial harm to others is low, and that the public interest will be best served by the issuance of the injunction. II. Factors to Consider & Balance in Ruling on a Motion for a Preliminary Injunction A. Substantial Likelihood of Finding that the Five Provisions are Unconstitutional 1. Twenty-Four Hour Notice of Appeal Filing Requirement The majority conspicuously fails to note those specific findings of fact upon which the district court concluded that the twenty-four hour notice of appeal filing requirement imposed an undue burden on female minors such that the provision would likely be found unconstitutional. The majority’s calculated decision to ignore the district court’s specific factual findings in all likelihood results from the majority’s desire to improperly substitute its judgment for that of the district court, and the majority could not do so without engaging in an improper standard of review or risk exposing its self-serving purpose. As such, I specifically note the district court’s findings which are an accurate and realistic determination of the logistical hurdles faced by these female minors in securing an abortion without parental knowledge, as well as the court’s proper conclusions of law. District Court’s Findings of Fact & Conclusions of Law The district court concluded that the twenty-four hour notice of appeal provision impermissibly shifted to the pregnant minor the burden of acting expeditiously and imposed an undue burden upon her right to obtain an abortion. In reaching this conclusion, the district court relied upon the declarations from clinic directors and administrators, and noted the “extreme limitations faced by teen-aged pregnant patients in making arrangements to obtain their abortions without parental knowledge.” (J.A. at 411.) For example, the court found that many of these girls have little or no access to making telephone calls, as illustrated by a clinic director in Memphis who stated in her declaration to the court that often the girls will have to hang up in the middle of a call because a parent has arrived home unexpectedly, and often cannot call back for a day or two. In addition, the district court noted that the problem is compounded if the calls are long distance and the telephone number then appears on the monthly phone bill. The minor’s parents are then able to call the number to inquire as to the nature of the establishment and who made the call; and, although the clinics assert that they never reveal the name of the party who made the initial call, just knowing that someone from the home called the clinic is enough to destroy the minor’s confidentiality. Furthermore, the court found that about ten percent of the clinic’s patient’s do not even have a phone in their home and, although some minors use pay phones to call the clinic, they cannot always get to a pay phone to make a call in a timely fashion. In addition, the court found that the difficulty of making even a single call is exponentially increased when a minor attempts to be absent from home, school, or work. Every time a minor finds it necessary to be absent from the place where she is expected to be, she arouses suspicion, is forced to be untruthful about her whereabouts, and runs the risk of being caught. Finally, the court found that these difficulties especially hold true for those females who must travel long distances to reach the clinic, do not drive or have access to an automobile, and must rely upon others for transportation to and from the clinic. The court opined that given the realities faced by these minor girls — not having phone access to make calls; accountability for being absent from home, school, or work; and the lack of transportation to travel to the clinic, particularly when the clinic is not located in close proximity to their home — the twenty-four hour appeals limit would be an impossible requirement for many minors to satisfy, and therefore there was a substantial likelihood of the provision being found unconstitutional. The court reasoned as follows: Under the Tennessee law, a minor must first find the opportunity to call the courthouse to learn the juvenile court’s decision, which is undoubtedly already hours old. She must immediately understand what the denial means for her, what the procedure is for appealing it, and what the repercussions are if she fails to do so. She must immediately secure transportation to the courthouse to prepare and file an appeal, and make the trip and back without arousing her parents’s suspicion. Such a tight time-line is especially unrealistic in light of this Court’s conclusion infra that many minors will attempt to file such petitions outside their home counties and thus will travel greater distances to file their petitions. (J.A. at 412.) The district court was not persuaded otherwise by the state’s provision of an “800” number and court-appointed advocates and attorneys, noting that “these mechanisms lessen some burdens only at the expense of creating others: while an advocate or attorney may do some of the procedural legwork for a minor, the fact that a minor is represented changes only whom the minor is required to call in pursuing her petition, not the fact of having to make phone calls under tight time constraints. Moreover, the same difficulties encountered by minors in making phone calls also apply to their receiving them.” (J.A. at 413 (emphasis in original).) The court further found that the fact that the state offers an “800” number, an advocate, and an attorney to minors, does not lessen the deprivation suffered by those minors who choose to proceed unrepresented, and who lose their right to appeal as a result. Finally, the district court found that the state failed to articulate a substantial countervailing interest in imposing the twenty-four hour notice of appeal requirement, particularly when elsewhere in the Act no such limits are imposed. By way of example the court pointed out that “if the juvenile court fails to rule on the petition within forty-eight hours, a minor may appeal ‘immediately,’ but is not held to any time limit. Tenn. Sup.Ct. R. 24(ll)(d). Similarly, if the circuit court denies the appeal, the minor faces no restriction on the time it takes for her to appeal to the Supreme Court. Tenn. Sup.Ct. R. 24(12)(e).” (J.A. at 414.) Majority Opinion The majority minimizes the magnitude of the substantial obstacles which the district court found were associated with the requirements of the twenty-four appeal, by failing to consider any of the court’s findings of fact and by reducing the district court’s ruling to one sentence — and adding an additional sentence couched in terms of MPP’s argument — as follows: The district court concluded that MPP likely could prove that the notice of appeal provision imposes an undue burden on the minor seeking an abortion because it impermissibly shifts to the pregnant minor the burden of acting expeditiously. MPP argues that the twenty-four hour provision burdens a minor seeking judicial bypass because it creates logistical problems for her in the form of making telephone calls during a particular time and forcing her to return to the courthouse to file the notice of appeal within a short time-frame. After making this conclusory notation, the majority then goes on to state that “[w]e believe that the twenty-four hour appeal provision does not place an undue burden upon a minor’s ability to pursue a judicial bypass” for four reasons: 1) Tennessee Rule of Appellate Procedure 4(d) allows civil litigants to file notices of appeal in advance thereby alleviating the need to be in contact with and return to the court; 2) even if the minor does not arrange for an appeal in advance of the juvenile court’s decision, the window of time with which a minor must remain in contact with the court is only forty-eight hours, and requiring a minor to make calls — even when difficult to do so — over a forty-eight hour period cannot be characterized as substantial; 3) the juvenile court is required to advise the minor that she has the right to court-appointed counsel, and the state is required to provide a court-appointed advocate in each judicial district to give information regarding the legal process which thereby assure a minor access to assistance in navigating the appeals process; and 4) the appeal provision expedites the judicial bypass process and thereby serves the legitimate state interest of protecting the health of minors because, the longer that the minor has to wait for the abortion, the greater her health risks become. I emphatically disagree with the majority’s holding which impermissibly engages in a de novo review of the issue and begs the question as to whether the district court abused its discretion in granting the preliminary injunction by “reifying] upon clearly erroneous findings of fact” or improperly applied the law. See Mascio, 160 F.3d at 312. The law is well-settled that a factual finding may be considered clearly erroneous when, although there is evidence to support the finding, “the reviewing court is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). However, if a district court’s account of the evidence is plausible in light of the record viewed in its entirety, the reviewing court “may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Therefore, a district court’s choice between two permissible views of the evidence cannot be clearly erroneous. Id. at 574, 105 S.Ct. 1504. I firmly believe that the district court did not rely upon clearly erroneous factual findings in deciding to issue the injunction. The court’s findings that the twenty-four hour notice of appeal requirement was an undue burden in light of the logistical demands of having to contact the juvenile court when access to a telephone is sometimes a literal impossibility; having to possibly return to court a second tune when the minor must be accountable for her time spent away from home, work, or school; as well as having to possibly return to court when she has no means of transportation and must rely upon a ride from someone else, were based upon the declarations from experts in the field, clinic administrators and directors, and thus entirely “plausible in light of the record viewed in its entirety.” Anderson, 470 U.S. at 573-74,105 S.Ct. 1504. For example, a review of the record indicates that Stanley K. Henshaw, Ph.D., submitted a declaration in support of a preliminary injunction against the enforcement of the Act, wherein he stated that, as Deputy Director of Research for the Alan Guttmacher Institute in New York City, he was “responsible for overseeing a period survey of all abortion providers in the United States, including almost 2400 hospitals, free standing clinics, and doctors who provide abortion in their offices.” (J.A. at 15-16, Henshaw Decl. at ¶¶ 2, 3.) Dr. Hen-shaw further stated that in this capacity, he “analyze[d] and interpret[ed] data relating to pregnancy and abortion for minors, parental involvement for minors seeking abortions, and obstacles to abortion for minors and adult women.” (J.A. at 15, Henshaw Decl. at ¶ 2.) After reviewing the Act, Dr. Henshaw concluded that “the consequences of the delay and lack of anonymity occasioned by the Tennessee Consent Act will result in irreparable harm to significant numbers of minors, by increasing the risks to their health, compromising their privacy, and forcing some to carry to term.” (J.A. at 21, Henshaw Decl. at ¶ 15.) Dr. Henshaw based his conclusion on his abundant research and studies which indicated that if the Act fails to ensure anonymity or confidentiality at every stage of the waiver process, the minor female will suffer adverse consequences when her parents somehow find out about the abortion. (J.A. at 17, Henshaw Deck at ¶ 7.) For example, Dr. Henshaw noted that fifty-eight percent of minors reported adverse consequences such as being physically abused, being forced to leave home, being forced to carry to term, or being the cause of marital problems between parents when their parents discovered that the minor was pregnant and seeking an abortion. (J.A. at 17-18, Henshaw Deck at ¶¶ 5-7.) Moreover, Dr. Henshaw opined that a minor’s fear of being discovered by a parent will cause the minor to delay in seeking the abortion, and the delay will ultimately harm the minor in that the health risks associated with the abortion process increase the longer the minor waits. He noted that although abortion is one of the safest surgical procedures with very little risk of fatal complications, delay in the performance of an abortion increases its risk in that both the morbidity and mortality rates for abortion increase with advancing gestational age, and the tendency of minors to obtain abortions later in pregnancy has the largest single effect on the morbidity and mortality rates for abortion in this population. Dr. Henshaw opined that the delay engendered by the Act is particularly serious in that it will exacerbate the delay already experienced by minors. He specifically noted that the Act’s appeals process may take up to three to four weeks to complete and that a delay of this magnitude could significantly increase the health risks for these girls. Furthermore, Dr. Henshaw opined that the delay associated with the appeals process brought about additional problems such as increased cost of the abortion procedure and decreased availability of the procedure, and may actually force some minors to self-abort. Dr. Hen-shaw noted that, “[s]ome teens desperate to end their pregnancies and unwilling to tell a parent, and deterred from pursuing a bypass, may attempt to self-abort, with adverse consequences to their health.” One study of minors reports that nine percent said that they would have a self-induced or illegal abortion if forced to notify their parents. The American Medical Association (AMA) reports that the desire to maintain secrecy about abortion has been one of the leading reasons for illegal abortion deaths since 197S. Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 JAMA 82, 83 (1993). Because of such factors, the AMA has taken the position that, while minors should be encouraged to discuss their pregnancy with their parents and other adults, they should not be compelled to involve their parents before obtaining an abortion. Id. at 84, 86. To the extent the Consent Act fails to provide an adequate alternative, it amounts so such compulsion. (J.A. at 20, Henshaw Deck at ¶ 13 (emphasis added, citation omitted).) The record is replete with declarations from clinic administrators and directors buttressing Dr. Henshaw’s assessment that the risk to a minor’s confidentiality and anonymity associated with the Act and the twenty-four hour appeal requirement in particular, as well as the added delay associated with the same, imposed substantial obstacles to a minor’s right to choose and therefore constituted an undue burden. For example, Judy G. Stogner, Director of Clinical Services at MPP, declared that it has been her experience that the minors seeking an abortion without parental consent do so for a number of reasons including that some live in households where parental support is nonexistent and where abuse, neglect, and psychological maltreatment are commonplace. Others fear that the news of the pregnancy will increase family stress because the family cannot afford the expense in that news of the pregnancy will exacerbate a parent’s drug or alcohol problem, or may impair the health of an already ill parent. Because of the real and perceived potential harm, the minor’s concern for confidentiality and anonymity are paramount. By way of example, Stogner noted as follows: Just yesterday, a pregnant minor came to MPP for counseling who could not obtain consent from either parent because of their strongly held “pro-life” views. This minor is fearful of using the judicial bypass because of concerns about confidentiality and negotiating the court process. She is considering trav-elling 300 miles to Granite City, Illinois for her abortion. That state does not have a parental involvement law in effect. (J.A. at 35, Stogner Decl. at ¶-7.) Stogner expressed that confidentiality is a particular problem in rural communities where the minor’s actions can easily be detected by relatives and friends, and that minors who are already anxious about and skeptical of assurances of confidentiality will be deterred from using the bypass procedure. She found this to be especially so in relation to the twenty-four hour appeal requirement because not only does it compromise confidentiality, it also adds to the delay in the abortion process — or even the decision to carry to term or self-abort— because each additional step in the bypass procedure requires the minor to figure out, once again, how to take needed action undetected by her parents, relations, and acquaintances. Stogner conc