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A Colorado law requiring minors to notify a parent before getting an abortion is unconstitutional, the 10th U.S. Circuit Court of Appeals held April 17, because the law does not have an exception allowing doctors to perform abortions necessary to protect a pregnant teen-ager’s health. Planned Parenthood of the Rocky Mountains v. Owens, No. 00-1385. The result of a 1998 ballot initiative approved by 55 percent of Colorado voters, the Parental Notification Act makes it a misdemeanor for a doctor to perform an abortion on a minor until 48 hours after she notifies a parent, guardian or foster parent. Although a physician has an affirmative defense in cases where abortion is necessary to prevent imminent death, there is no general health exception. Citing a 2000 U.S. Supreme Court case, Stenberg v. Carhart, the 10th Circuit said the Colorado statute was unconstitutional in the absence of evidence that an exception would never be necessary to preserve the health of pregnant minors. Although another Colorado law allows juvenile courts to authorize emergency medical treatment, the majority said the later, more specific notification statute was unambiguous and superseded the older law on this issue. Dissenting, 10th Circuit Judge Bobby R. Baldock said he would have abstained from deciding the law’s constitutionality because the Colorado Supreme Court might have interpreted the law differently. He said a “federal court’s decision to declare a state legislative act unconstitutional on its face is most invasive of state sovereignty.” The suit was filed by Planned Parenthood of the Rocky Mountains Inc. and several other abortion providers seeking to enjoin enforcement of the law. Jennifer E. Dalven of New York’s American Civil Liberties Union Foundation Reproductive Freedom Project, one of the lawyers who represented the plaintiffs, said the case was about “whether the 10th Circuit should go to great lengths to write a health exception into the law when there isn’t one.” Asked about the dissent’s argument that the case should have been certified to the Colorado Supreme Court, Dalven said, “The plaintiffs originally filed this case in state court. It was the defendants who removed the case to federal court.” Also, “the parties agreed before the district court that this was not an appropriate case to certify,” said Kevin C. Paul, the now-former in-house counsel for Planned Parenthood. A. Stephen Hut Jr. of Washington D.C.’s Wilmer, Cutler & Pickering filed an amici brief for a group of medical associations. He said that because an issue should not be certified unless it is possible for a state court to construe the law constitutionally, it was not surprising that the majority found the law was not constitutional or certifiable. The state Legislature adjourns May 8, and the deadline for new legislation to be introduced has already passed, said Dan Hopkins, press secretary for Colorado Gov. William Owens, so the law will not be amended this year. Colorado Deputy Attorney General Ken Lane said his office was considering its options but declined further comment.

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