decided: January 29, 1982.
JOANNE FISCHER, ET AL., APPELLEES,
DEPARTMENT OF PUBLIC WELFARE, ET AL., APPELLANTS
No. 81-2-272, Appeal from the Order of the Commonwealth Court dated August 10, 1981, at No. 283 C.D. 1981
Andrew S. Gordon, Allen C. Warshaw, Deputy Attys. Gen., LeRoy S. Zimmerman, Atty. Gen., for appellants.
Seth F. Kreimer, Philadelphia, for appellees.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Kauffman and Wilkinson, JJ., did not participate in the decision of this case.
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In this appeal we are being called upon to determine the propriety of a Commonwealth Court order (per MacPhail, J.)
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granting a preliminary injunction pending a resolution of the substantive issues presented to that court. The effect of the preliminary injunction is to preclude the implementation of Act 239*fn1 until the constitutional challenges that have been raised are considered and resolved by the Commonwealth Court. For the reasons that follow we find that the order was properly entered and should not be disturbed at this time.
A petition for review was filed in the Commonwealth Court seeking declaratory and injunctive relief halting the implementation of Act 239. Act 239 provides, inter alia, that no public assistance funds will be expended to pay for abortions unless a full-term pregnancy would endanger the woman's life or the pregnancy was a result of rape or incest which was promptly reported to law enforcement or health authorities. It is contended that the constraints of this legislation deprived medically necessary care to the indigent. Preliminary objections were filed in the nature of a demurrer by the Department of Public Welfare, et al. (appellants herein). Thereafter, petitioners (appellees in this appeal) filed for a preliminary injunction which was granted on August 10, 1981.
In granting the preliminary injunction, Judge MacPhail concluded that a refusal of the injunction would have endangered
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the health of indigent women who required medically necessary abortions, that the harm would be irreparable, and that "prospects of securing a permanent injunction must be carefully weighed against the merit of maintaining the status quo until the fundamental constitutional issues can be resolved by a full complement of . . . [the Commonwealth Court] . . ." [R 120a] Appellants counter by urging that the constitutional objections will not prevail and the legislative process should not have been interrupted.
In determining the propriety of the entry of an order granting a preliminary injunction,*fn2 the question is whether there were any apparently reasonable grounds in the record to justify its issuance. Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981); New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978). A recognized purpose sought to be achieved by the issuance of a preliminary injunction is the avoidance of irreparable injury or gross injustice until the legality of the challenged action can be determined. Wilkes Barre Independent Co. v. Newspaper Guild, 455 Pa. 287, 314 A.2d 251 (1974); Sameric Corp. of Market Street v. Goss, 448 Pa. 497, 295 A.2d 277 (1972); Slott v. Plastic Fabricators, Inc., 402 Pa. 433, 167 A.2d 306 (1961). In this case the allegation that some of the appellees*fn3 were being denied a medically necessary procedure which endangered their health supplied the irreparable harm requirement for the issuance of a preliminary injunction.*fn4 There is also no
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question that the injunction did no more than to restore the status quo as it existed before the challenged act. Valley Forge Historical Society v. Washington Memorial Chapel, supra, 493 Pa. at 501, 426 A.2d at 1129.
The crux of the controversy here is whether the constitutional challenges to Act 239 are of sufficient substance to warrant the issuance of the preliminary injunction. We have stated in many of our decisions that the movant must demonstrate a clear right to relief. Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985 (1981); Valley Forge Historical Society v. Washington Memorial Chapel, supra; Twp. of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978); Sameric Corp. of Market Street v. Goss, supra; Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960); Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958). However, since a preliminary injunction is designed to preserve the status quo pending final resolution of the underlying issues, it is obvious that the "clear right" requirement is not intended to mandate that one seeking a preliminary injunction establish his or her claim absolutely. Valley Forge Historical Society v. Washington Memorial Chapel, supra. Where the threat of immediate and irreparable harm to the petitioning party is evident, that the injunction does no more than restore the status quo and the greater injury would result by refusing the requested injunction than granting it, an injunction may properly be granted where substantial legal questions must be resolved to determine the rights of the respective parties. Valley Forge Historical Society v. Washington Memorial Chapel, supra.
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Appellant advances in support of dissolution of the injunction that Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) and Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977) would suggest that a federal claim of violation of equal protection would be meritless. However, instant appellees raise the question as to whether Act 239 violates the free exercise of religion clause of the First Amendment of the Federal Constitution. Even of greater significance are the claims that state constitutional guarantees justify the relief sought. Without prejudging the questions raised,*fn5 it is noted that at least two of our sister states have deemed it appropriate to find legislation similar to Act 239 offensive under their state constitutions.*fn6 These contentions raise important questions that are deserving of serious consideration and resolution. In view of the seriousness of the questions to be decided and the real threat of immediate and irreparable harm to the appellees, there was, without question, reasonable grounds for the entry of the preliminary injunction preserving the status quo until the Commonwealth Court decided the merits of the issues raised.
Order of the Commonwealth Court affirmed.