UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD O. MANNING, M.D.;
RALEIGH WOMEN'S HEALTH
ORGANIZATION, INCORPORATED; TAKEY
CRIST, M.D., on their own behalf
and on behalf of their minor
patients,
Plaintiffs-Appellants,

v.

JAMES B. HUNT, JR., Governor of the
State of North Carolina, in his
official capacity; RONALD L. MOORE,
District Attorney of Buncombe
                                      No. 95-3181
County, in his official capacity;
PETER S. GILCHRIST, III,
Mecklenburg County District
Attorney, in his official capacity;
C. WILLOUGHBY, JR., Wake County
District Attorney, in his official
capacity; WILLIAM H. ANDREWS,
Onslow County District Attorney, in
his official capacity,
Defendants-Appellees.

NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED,
Amicus Curiae.
RICHARD O. MANNING, M.D.;
RALEIGH WOMEN'S HEALTH
ORGANIZATION, INCORPORATED; TAKEY
CRIST, M.D., on their own behalf
and on behalf of their minor
patients,
Plaintiffs-Appellants,

v.

JAMES B. HUNT, JR., Governor of the
State of North Carolina, in his
official capacity; RONALD L. MOORE,
District Attorney of Buncombe
                                                            No. 95-3182
County, in his official capacity;
PETER S. GILCHRIST, III,
Mecklenburg County District
Attorney, in his official capacity;
C. WILLOUGHBY, JR., Wake County
District Attorney, in his official
capacity; WILLIAM H. ANDREWS,
Onslow County District Attorney, in
his official capacity,
Defendants-Appellees.

NORTH CAROLINA RIGHT TO LIFE,
INCORPORATED,
Amicus Curiae.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-95-229-1-T)

Argued: April 3, 1996

Decided: May 22, 1996

Before WIDENER, MURNAGHAN, and WILLIAMS,
Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion. Judge
Widener wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Deborah Koff Ross, ACLU-NC LEGAL FOUNDA-
TION, Raleigh, North Carolina, for Appellants. Grady L. Balen-
tine, Jr., Assistant Attorney General, Raleigh, North Carolina, for
Appellees. ON BRIEF: C. Frank Goldsmith, Marion, North Carolina;
Ellen W. Gerber, High Point, North Carolina; Catherine Weiss,
Laura K. Abel, Reproductive Freedom Project, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, New York, New York, for
Appellants. Michael F. Easley, North Carolina Attorney General,
Mabel Y. Bullock, Special Deputy Attorney General, Raleigh, North
Carolina, for Appellees. Paul Stam, Jr., Theodore S. Danchi, Apex,
North Carolina, for Amicus Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal involves a facial challenge to the constitutionality of
North Carolina's Act to Require Parental or Judicial Consent for an
Unemancipated Minor's Abortion (the Act), 1995 N.C. Adv. Legis.
Serv. 108 (to be codified at N.C. Gen Stat. § 90-21.6 to .10). Appel-
lants, two doctors who perform abortions on unemancipated minors
and a provider of abortion services, appeal an order of the district
court denying in part their request for an order enjoining enforcement
of the Act pending resolution of their constitutional challenge. Appel-
lees, the Governor of North Carolina and several district attorneys,
cross-appeal the portion of the district court's order granting injunc-
tive relief with respect to one provision of the Act. Because we con-

                    3
clude that the district court erred in its application of the standards
governing the grant or denial of a preliminary injunction, we vacate
the order granting in part and denying in part preliminary injunctive
relief and remand for further proceedings.

I.

The Act, adopted during the 1995 session of the North Carolina
General Assembly, provides that before an unemancipated minor1
may obtain an abortion, she must first give her own consent and
obtain the consent of:

          (1) A parent with legal custody of the minor; or

          (2) The legal guardian or legal custodian of the minor; or

          (3) A parent with whom the minor is living; or

          (4) A grandparent with whom the minor has been living
          for at least six months immediately preceding the date of the
          minor's written consent.

N.C. Gen. Stat. § 90-21.7(a). A pregnant minor may petition a state
district court judge2 for a waiver of the parental consent requirement
if none of the persons capable of giving consent is available, all of the
persons capable of giving consent refuse to do so, or the minor does
not wish to obtain consent from any person capable of giving consent.
Id. § 90-21.7(b).
_________________________________________________________________
1 The Act defines an "unemancipated minor" as any person under the
age of 18 who has not been married and who has not been emancipated
pursuant to North Carolina law. N.C. Gen. Stat.§ 90-21.6(1).
2 The Act provides that jurisdiction over a petition for waiver of the
parental consent requirement rests with "the district court judge assigned
to the juvenile proceedings in the district court where the minor resides
or where she is physically present." N.C. Gen. Stat. § 90-21.7(b). North
Carolina district courts have original jurisdiction over, inter alia, civil
suits in which the amount in controversy is $10,000 or less, domestic
relations matters, and misdemeanor criminal actions. N.C. Gen Stat.
§§ 7A-243, -244, & -272 (Michie 1995).

                     4
In ruling on the petition for a waiver of the parental consent
requirement, the district court judge must conduct a hearing to receive
evidence concerning the minor's "emotional development, maturity,
intellect, and understanding . . . ; the nature, possible consequences,
and alternatives to the abortion; and any other evidence that the court
may find useful in determining whether the parental consent require-
ment shall be waived." Id. § 90-21.8(d). The district court judge may
waive the parental consent requirement if he finds that the minor is
sufficiently mature and well informed to make her own decision
regarding an abortion, that a waiver of the parental consent require-
ment is in the minor's best interests, or that the minor is a victim of
rape or felonious incest. Id. § 90-21.8(e). If the district court judge
finds that the minor has been a victim of rape or incest, he is required
to report this finding to the Director of the Department of Social Ser-
vices (DSS). Id. § 90-21.8(f).3 The district court judge must set forth
his ruling and the evidence supporting it in a written order. Id.

The district court judge must rule within seven days of the filing
of the petition. Id. § 90-21.8(d). If the district court judge denies the
petition, the minor may appeal to the superior court; in order to pur-
sue such an appeal, she must file a notice of appeal to the superior
court within twenty-four hours of the district court judge's decision.
Id. § 90-21.8(h). The superior court must hold a de novo hearing
within seven days of the filing of the notice of appeal. Id. By rule, the
North Carolina Supreme Court has provided that the superior court
must issue its ruling within forty-eight hours of the hearing. During
the entire course of proceedings on the petition, the minor is entitled
to the assistance of a guardian ad litem, an attorney, or both, at no
cost. Id. § 90-21.8(c). The Act also provides that proceedings before
the district court judge and the superior court are to be confidential,
id. § 90-21.8(d), (h), and that the minor may request that her parent,
guardian, or custodian not be notified of the proceedings, id. § 90-
21.8(g).
_________________________________________________________________
3 The Act requires only that a finding of incest be reported to DSS.
Rules promulgated by the North Carolina Supreme Court require a find-
ing of rape to be reported, as well. In addition, North Carolina law
imposes a duty upon "[a]ny person or institution who has cause to sus-
pect that any juvenile is abused" to report those suspicions to DSS. N.C.
Gen. Stat. § 7A-543 (Michie 1995).

                    5
Appellants challenged the validity of the Act under the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments to the Constitution,
seeking preliminary and permanent injunctive relief, a judgment
declaring the Act unconstitutional, and attorneys' fees. Appellants
argued that the Act imposed an undue burden4 on a pregnant minor's
right to an abortion by: (1) failing to provide a clear definition of the
term "parent with custody"; (2) failing to provide an adequate, expedi-
tious, and confidential bypass for a minor who appeals the denial of
her petition to the North Carolina Court of Appeals or Supreme
Court; (3) requiring that the minor appeal an adverse decision by the
district court judge within twenty-four hours; (4) requiring that the
minor undergo a de novo hearing before the superior court; (5) requir-
ing that the minor state affirmatively that she does not want her par-
ent, guardian, or custodian to be notified that she has petitioned for
a waiver of the parental consent requirement; and (6) requiring that
a finding of rape or incest be reported to DSS (the"reporting require-
ment").

The district court granted preliminary injunctive relief with respect
to the reporting requirement, but denied Appellants' request for a pre-
liminary injunction in all other respects. We subsequently granted
Appellees' motion for a stay of injunction pending appeal. In chal-
lenging the district court's ruling, Appellants argue first that the dis-
trict court erred in its application of the standard enunciated in
Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189
(4th Cir. 1977), for determining whether injunctive relief is appropri-
ate, and second, that injunctive relief should have been granted with
respect to all provisions of the Act. On cross-appeal, Appellees con-
tend that the district court erred in preliminarily enjoining the report-
ing requirement. Because we find Appellants' first challenge requires
us to vacate the district court's order in its entirety, we do not address
in detail the remaining contentions of the parties.
_________________________________________________________________

4 See Planned Parenthood v. Casey , 112 S. Ct. 2791, 2819 (1992) (set-
ting forth "undue burden" standard governing constitutionality of laws
restricting access to abortions).

                    6
II.

A.

We find it useful to preface our examination of the district court's
application of the Blackwelder standard with a discussion of the appli-
cable law. Under the well-settled law of this circuit, the consideration
of four factors governs the district court's decision whether to grant
a preliminary injunction:

          "(1) the likelihood of irreparable harm to the plaintiff if the
          preliminary injunction is denied,

          (2) the likelihood of harm to the defendant if the requested
          relief is granted,

          (3) the likelihood that the plaintiff will succeed on the
          merits, and

          (4) the public interest."

Direx Israel, Ltd. v. Breakthrough Medical Corp. , 952 F.2d 802, 812
(4th Cir. 1991) (quoting Rum Creek Coal Sales, Inc. v. Caperton, 926
F.2d 353, 359 (4th Cir. 1991)). As we explained in Direx Israel, the
district court's first task is to determine what harm will be suffered
by the plaintiff in the event that a preliminary injunction is denied.
Upon determining that the denial of a preliminary injunction will
cause the plaintiff irreparable harm that is "`neither remote nor specu-
lative, but actual and imminent,'" the district court must proceed to
balance that harm against the harm to the defendant resulting from the
grant of a preliminary injunction. Id. (quoting Tucker Anthony Realty
Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). The result
of this balancing determines the degree to which the plaintiff must
show a likelihood of success on the merits in order to obtain a prelim-
inary injunction:

          "If, after balancing those two factors [i.e., irreparable harm
          to plaintiff against harm to the defendant], the balance `tips
          decidedly' in favor of the plaintiff, a preliminary injunction

                     7
          will be granted if `the plaintiff has raised questions going to
          the merits so serious, substantial, difficult and doubtful, as
          to make them fair ground for litigation and thus for more
          deliberate investigation.' As the balance tips away from the
          plaintiff, a stronger showing on the merits is required."

Id. at 812-13 (quoting Rum Creek, 926 F.2d at 359).

We emphasized in Direx Israel that the importance of the balance-
of-hardships evaluation mandates that it "precede the determination of
the degree by which the plaintiff must establish the likelihood of suc-
cess on his part." Id. at 813; see also Hughes Network Sys., Inc. v.
Interdigital Communications Corp., 17 F.3d 691, 693 (4th Cir. 1994)
(noting that "[t]he `balance of hardships' reached by comparing the
relevant harms to the plaintiff and defendant is the most important
determination" in applying the Blackwelder factors). Indeed, in
Blackwelder we vacated the district court's order denying a prelimi-
nary injunction based in part on the court's failure to balance the
hardships before considering the plaintiff's likelihood of success on
the merits. See Blackwelder, 550 F.2d at 195; see also Hazardous
Waste Treatment Council v. South Carolina, 945 F.2d 781, 788 (4th
Cir. 1991) (holding that court could not affirm the grant of a prelimi-
nary injunction "in the absence of evidence that the district court
engaged in a specific test of the balance of the hardships" and
remanding for consideration of the hardships); Maryland Undercoat-
ing Co. v. Payne, 603 F.2d 477, 482 (4th Cir. 1979) (vacating order
granting preliminary injunction in part because the district court failed
to balance the hardships). As we later explained in Direx Israel, vaca-
tur was necessary in Blackwelder because"[u]ntil that balance of
harm has been made, the district judge cannot know how strong and
substantial must be the plaintiff's showing of `likelihood of success.'"
Direx Israel, 952 F.3d at 814.

We review for abuse of discretion the district court's order granting
in part and denying in part injunctive relief. In the context of the grant
or denial of a preliminary injunction, however, abuse of discretion is
not a "`merely perfunctory'" standard of appellate review; rather, we
must carefully examine the district court's order to determine whether
the court complied with established principles. Id. at 814-15 (quoting
Roland Machinery Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir.

                     8
1984)). We will not hesitate to consider the district court's decision
an abuse of discretion if it was made through application of an
improper legal standard. See Rum Creek Coals Sales, Inc. v.
Caperton, 926 F.2d 353, 358 (4th Cir. 1991).

B.

Here, a cursory examination of the district court's order reveals
that the court improperly applied the Blackwelder test by considering
first whether Appellants had shown a likelihood of success on the
merits. See Manning v. Hunt, No. 1:95cv229-T, at 12 (W.D.N.C. Nov.
30, 1995) ("In order to conduct the balancing test required by Rule
65(a), Federal Rules of Civil Procedure, it is necessary for this court
to first consider whether plaintiffs are likely to succeed on the merits
of their claims."). The district court compounded this error by failing
to articulate the degree of likelihood of success on the merits Appel-
lants needed to show in order to obtain injunctive relief; rather, with
respect to each issue, the district court merely noted whether Appel-
lants had, or had not, shown a likelihood of success. Moreover, the
district court failed to balance the hardships with respect to all of the
issues, doing so only as to the reporting requirement, the only one of
Appellants' claims the district court found to have a likelihood of suc-
cess. Furthermore, the balancing conducted by the district court with
respect to the reporting requirement was inadequate in at least two
respects. First, the balancing followed the district court's determina-
tion regarding Appellants' likelihood of success on the merits of that
issue, rather than preceding that determination, as Blackwelder
directs. Second, the district court's balancing appears to have been
guided almost entirely by its conclusion that Appellants were likely
to succeed on the merits of their challenge to the reporting require-
ment. We have previously expressed disapproval of just such a con-
flation of the balance of hardships and the likelihood of success. See
Direx Israel, 952 F.2d at 817 (concluding that the district court's
determination that the balance of hardships favored plaintiffs based
on its finding that plaintiffs were likely to succeed on the merits "was
clear error in the application of the hardship test").

III.

We conclude that the district court incorrectly applied the
Blackwelder test in ruling on Appellants' motion for preliminary

                     9
injunction. Accordingly, we vacate the district court's order in its
entirety and remand for further proceedings consistent with this opin-
ion.

VACATED AND REMANDED

WIDENER, Circuit Judge, concurring:

I concur in the result.

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