filed pursuant to subsection (a) the department shall substitute a unique identification number for the names of the physicians which appear on the report, so that the identity of the physician filing the report shall constitute a confidential record of the department.
The plaintiffs maintain that compelled extensive disclosure of this information creates a legally significant burden on a woman's right of privacy. Defendants, on the other hand, maintain that the recordkeeping requirements are not burdensome and are rationally related to the state's interest in protecting its citizens.
I note that a similar recordkeeping and reporting provision was upheld in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1975). Danforth upheld a requirement in which forms were supplied to abortion facilities and physicians, requiring compilation of data relevant to maternal health and life. The information on the forms was to be kept confidential and was to be used only for statistical purposes. The court considered the requirements permissible, because the requirements were reasonably directed to the preservation of maternal health and respected a patient's privacy and confidentiality. Although the information gathered pursuant to § 3214 is open to the public, I conclude that the requirements of confidentiality in § 3214(e) regarding the identity of both patient and physician prevent any invasion of privacy which could present a legally significant burden on the abortion decision.
In addition, recordkeeping of the kind expressed in § 3214 is related to the state's interest in protecting the health of its citizens. The information compiled, like that sought in Danforth, may be a resource that is relevant to "decisions involving medical experience and judgment." Id. at 81. Further, I note that the provision requiring complications to be reported will provide data on the occurrence of specific risks and allow the Commonwealth to identify those doctors and clinics whose patients have suffered an inordinate number of complications. Thus, the reporting requirement is related to the state's interest in maternal health.
Consequently, I conclude the reporting and recordkeeping requirements do not create a legally significant burden on the abortion decision, and serve a legitimate state interest. For all these reasons and based upon the record produced before me, I conclude that the plaintiffs have failed to show a likelihood of success on the merits of their claim that the reporting requirements are unconstitutional.
IX. HOSPITAL-ONLY REQUIREMENT FOR POST-FIRST TRIMESTER ABORTIONS -- § 3209
Section 3209 of the Act provides that all abortions subsequent to the first trimester of pregnancy shall be performed, induced and completed in a hospital except in cases where a medical emergency exists.
Plaintiffs contend that this requirement effectively eliminates, for many women, the ability to exercise their fundamental right. The plaintiffs argue that if hospitals are unavailable to perform post-first trimester abortions, a government imposed hospitalization requirement may act as a governmental veto of a woman's decision to seek an abortion. Defendants contend that hospitalization in the second trimester promotes maternal health when all methods of second trimester abortions are considered. The risk of death caused by abortion increases with each week of delay. Thus, they maintain the hospitalization requirement is rationally related to the state's compelling interest in protecting the life and health of the women undergoing abortions in the second trimester.
Physicians are currently required by regulation to perform all post-first trimester abortions in a hospital. (para. 178) In 1981, 48 hospitals in Pennsylvania performed post-first trimester abortions. (para. 179) Thus, all post-first trimester abortions currently are performed in hospitals. There is no evidence that this has had a legally significant impact on any woman's right to obtain an abortion. Section 3209 would simply continue the status quo.
The hospital-only requirement is reasonably related to the state's interest in maternal health during the second trimester of pregnancy. It is the professional opinion of plaintiff physicians that it is medically safe to perform dilation and evacuation (D & E) abortions on an out-patient basis. (para. 180) However, according to current professional standards established by the American College of Obstetrics & Gynecology in its Manual of Standards for Obstetricians, Gynecological Survey 1982, D & E abortions should be performed only in an out-patient surgical facility. (para. 174) To qualify as an out-patient surgical facility, a facility must have anesthesia capability, operating room equipment and other backup care facilities. (para. 175) Most abortion clinics at present do not qualify as out-patient surgical facilities. (para. 176) Hospitals do qualify. Since § 3209 does not require admission to a hospital, it is satisfied if a D & E is performed at a hospital on an out-patient basis.
In addition to a D & E, an abortion may be performed by a saline amniocentesis, prostaglodin installation, hysterectomy and hysterotomy. These involve serious surgical procedures. Plaintiffs do not suggest that any of these methods can or should be performed in any environment other than a hospital. Considering all possible second trimester abortion procedures (and the Act applies equally to all such procedures) I find that hospitalization in the second trimester promotes maternal health.
In Akron Center v. Akron, the Sixth Circuit upheld a requirement that every abortion subsequent to the end of the first trimester of pregnancy be performed in a hospital. The court concluded that the requirement furthered the compelling state interest in protection of maternal health. 651 F.2d at 1210. On similar grounds the Eighth Circuit in PPA v. Ashcroft upheld a similar requirement that all second trimester abortions be performed in a hospital. 655 F.2d at 853.
For all these reasons, I conclude that § 3209 is consistent with the state's compelling interest in maternal health during the second trimester of pregnancy. Therefore, I conclude that the plaintiffs have failed to show a likelihood of success on the merits of their claim that the hospital-only requirement is unconstitutional.
X. CRIMINAL PENALTIES -- § 3210(a)
Section 3210(a) provides that
any person who intentionally, knowingly or recklessly performs or induces an abortion when the fetus is viable commits a felony of the third degree. It shall be a complete defense to any charge brought against a physician . . . that he had concluded in good faith, in his best medical judgment, that the unborn child was not viable at the time the abortion was performed or induced or that the abortion was necessary to preserve maternal life or health.
Plaintiffs challenge this provision on the basis that it establishes a legislative presumption that all post-viability abortions are criminal and places upon the defendant the burden of pleading and proving innocence.
I note that state regulation of fetal life after viability was expressly permitted in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). In Roe v. Wade, the Supreme Court said that a state interested in protecting fetal life after viability "may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother." 410 U.S. at 163-164.
With respect to the language of § 3210(a), I note that although the Act provides for criminal penalties for persons who "intentionally, knowingly or recklessly" perform abortions when the fetus is viable, the Act also provides for complete defenses to any criminal charge under § 3210(a) if the physician had concluded in good faith, in his best medical judgment, either that the unborn child was not viable at the time the abortion was performed or induced or that the abortion was necessary to preserve maternal life or health.
Plaintiffs' argument that § 3210(a) is unconstitutional because it requires the physician to plead and prove his innocence is clearly erroneous based upon my reading of § 3210(a) and Ashcroft. In Ashcroft the Eighth Circuit upheld the provisions of a Missouri statute which provided criminal penalties for any person who knowingly performed an abortion upon a viable unborn child:
As applied to the elements of this crime, the State would be required to provide that the physician was (1) aware he was performing an abortion; (2) aware this was a viable unborn child; and (3) aware the abortion was not necessary to preserve the life or health of the woman. When interpreted in this fashion, the statute does not impermissibly impinge on the rights of women and their physicians. It can be used to punish only those physicians who know that a fetus is viable and that the abortion is not necessary to the life and health of the woman. Such regulation is clearly permissible under Roe.
655 F.2d at 862 (emphasis in original). Similarly, § 3210(a) of the Act comes within the requirements of Roe v. Wade and Ashcroft.
I conclude, therefore, that the plaintiffs have failed to show a likelihood of success on the merits of their claim that the criminal penalties provision of the Act is unconstitutional.
XI. CHOICE OF ABORTION TECHNIQUE -- § 3210(b)
Section 3210(b) provides with respect to abortions after viability that the physician must select the technique which provides "the best opportunity for the unborn child to be aborted alive unless, in the good faith judgment of the physician, that method or technique would present a significantly greater medical risk to the life or health of the pregnant woman than would another available method or technique."
Plaintiffs contend that this provision is unconstitutionally vague. I disagree. None of the concepts would be foreign to the physicians upon whom the requirements of this section fall. Physicians are called upon daily to assess probabilities and degrees of risk whenever there are two or more procedures from which they can chose to treat a patient. Section 3210(b) requires no more than the usual exercise of medical judgment.
I am also unpersuaded that an ambiguity exists between the terms born alive and viable which would lead physicians to use the mandated technique at an early stage of pregnancy. The caption of this section of the Act is "Abortion after viability." The provisions of this section clearly are only intended to apply after viability and not at the earlier stages hypothesized by the plaintiffs.
Plaintiffs also contend that this provision violates the substantive law enunciated in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). The plaintiffs interpret the word "significantly" in the phrase "significantly greater risk" as being a comparative term, indicative of degree. Thus, plaintiffs argue that this section requires a woman in the third trimester of pregnancy to accept some additional risk so long as it is not significant. The plaintiffs contend that this is inconsistent with Roe v. Wade which held that an abortion could not be prohibited even in the third trimester if necessary to preserve the health or life of the woman.
The court in Ashcroft upheld a provision similar to § 3210(b). The Ashcroft court stated:
If the risk to the woman from the 'fetal survival method' is greater than the risk to her from alternative methods, the physician may choose an alternative. Implicitly, if the risk to the woman from the fetal survival method is less than or equal to the risk to her from available alternative methods, the physician must use the fetal survival method. Given the precision of this balance, the question is not whether the statute is vague, but whether the woman's constitutional rights are violated by a requirement that a fetal survival method must be used whenever the risks to the woman with that method are less than or equal to the risk from other possible methods.