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AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS

December 10, 1982

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION, et al.
v.
RICHARD THORNBURGH, et al.



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 I. INTRODUCTION

 This is an action for declaratory and injunctive relief pursuant to the United States Constitution and 42 U.S.C. § 1983 in which the plaintiffs challenge the constitutionality of the Pennsylvania Abortion Control Act (Act), 18 Pa. Con. Stat. Ann. §§ 3201-3220. I have subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), & 1343(a)(4). Before me is plaintiffs' motion for preliminary injunction. On December 7, 1982, because the Act was to take effect the next day, I issued my order and decree on the plaintiffs' motion. This opinion is the statement of my reasons for ruling as I did.

 The Act became law on June 11, 1982. Almost four months later plaintiffs filed their complaint. Plaintiffs' motion for a preliminary injunction was filed on October 29, 1982, almost a month after the complaint was filed. Following a conference in chambers on November 17, 1982, it was determined that December 2, 1982 was the earliest date by which the parties could fully brief the complex constitutional issues and prepare the factual presentation required by the motion. The parties' stipulation of uncontested facts, *fn1" their proposed findings of fact and conclusions of law were submitted to me on November 30, 1982. A conference was held in chambers on December 1, 1982. On December 2, 1982, I held a hearing on plaintiffs' motion. Because of the parties' comprehensive stipulation of uncontested facts, no testimony or evidence was submitted at the hearing. Counsel for the plaintiffs, defendants, and amici presented oral argument. At the conclusion of the December 2, 1982 hearing, I took the matter under advisement. The effective date of the Pennsylvania Act is December 8, 1982.

 The following constitutes my findings of fact and conclusions of law. Based upon my findings and for the reasons stated below, I conclude that the Act as a whole and the specific subsections challenged are constitutional with the exception of the 24-hour waiting period in § 3205.

 I reach this conclusion after the most thoughtful consideration of these complex issues which time permitted. As the procedural history of this case outlined above reveals, despite the complexity and importance of the issues, this case has proceeded rapidly under pressure from the effective date of the Act. Within only 2 months of the filing of the complaint and just 6 days after the case was submitted to me, the Act which plaintiffs contend violates the Constitution became law.

 Although the Pennsylvania Act and the challenge to it are recent developments in this circuit, some but not all of the subsections challenged here are similar to provisions the constitutionality of which has been litigated in the Sixth Circuit in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198 (6th Cir. 1981) (Akron Center v. Akron) and in the Eighth Circuit in Planned Parenthood Association v. Ashcroft, 655 F.2d 848 (8th Cir. 1981) (PPA v. Ashcroft). The decisions in Akron and Ashcroft are not consistent on a number of common issues. These decisions have tended as much to obfuscate as to enlighten my analysis of the present case. Both decisions are before the Supreme Court which heard argument in the cases on December 4, 1982. 51 U.S.L.W. 3433 (U.S. Dec. 7, 1982).

 While the pressure of the effective date is real and the plaintiffs are entitled to an adjudication of their request for relief pendente lite, it is with a certain level of frustration that I observe that within six months to a year the Supreme Court may issue an opinion which will be likely to resolve many of the issues that I have held under advisement for just a few days. Further, I must agree with Judge Adams' observation in Planned Parenthood v. Fitzpatrick, 401 F. Supp. 554, 586 (E.D. Pa. 1975) (Adams, J., concurring and dissenting), that "it is open to some doubt whether the courts are the institution best equipped to resolve the complex societal interests that exist in the abortion field." This is an area perhaps better left in the hands of popularly elected legislators. In approaching this decision, I was mindful of Judge Adams' admonition in Fitzpatrick that courts should be "reluctant to leap ahead too quickly to interdict states from legislating respecting abortions when, in the accumulative informed judgment of the legislators, such enactments are necessary to serve legitimate interests of the populance." Id.

 II. STANDING

 The plaintiffs in this action can be divided into five different groups. The defendants challenge the standing of only one of those groups, clergymen who sue in individual and representative capacities.

 Plaintiff physicians have standing to assert both their own rights and those of their women patients to challenge the constitutionality of the sections at issue in this case. Singleton v. Wulff, 428 U.S. 106, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976), Planned Parenthood v. Danforth, 428 U.S. 52, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976). Plaintiff American College of Obstetricians and Gynecologists, Pennsylvania Section, an organization of obstetricians and gynecologists, has standing to represent the interests of its members and of their patients. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977). Plaintiff medical providers similarly have standing to raise the constitutional rights of their customers. Women's Medical Center v. Roberts, 512 F. Supp. 316 (D.R.I. 1981).

 The defendants have not challenged the standing of plaintiff Morgan Plant. Plant is an individual who currently purchases and will continue to purchase health care and disability insurance, which comprehensively covers abortions, from an insurer in Pennsylvania. Plant sues on her own behalf and on behalf of all persons similarly situated. It appears that Plant does not have standing to challenge § 3215(e), because there is no evidence that comprehensive insurance premiums will be more costly after the Act goes into effect than before the enactment as a result of the challenged provision. Consequently, Plant has not shown the "injury in fact" required by Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976) and its progeny. Nevertheless, in the absence of briefing or oral argument on this point by any of the parties, and in light of the time constraints involved, I will reach the merits of the insurance claim.

 Finally, I conclude that plaintiff clergymen do not have standing either as individuals or on behalf of women whom they counsel. Plaintiff clergymen fail to meet the constitutional requirements for standing, in both individual and representative capacities, articulated in free exercise cases. I find that the challenged provisions have no direct impact on the plaintiff clergymen as individuals, because the Act has no provisions which directly or indirectly concern religious counseling. Consequently, I conclude that the clergymen have failed to meet the requirements of injury in fact required in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976).

 Further, I conclude that the clergymen do not have standing in a representative capacity. A free exercise claim ordinarily requires individual participation. Harris v. McRae, 448 U.S. 297, 321, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980). "It is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion." Abington School District v. Schempp, 374 U.S. 203, 233, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963). In Harris v. McRae, the Supreme Court held that representatives of a division of the United Methodist Church did not have standing to sue on behalf of women who seek abortions for religious reasons. Consequently, a free exercise claim in this case can be pursued only by a woman who seeks "an abortion under compulsion of religious belief." 448 U.S. at 320.

 III. STANDARD OF REVIEW

 The standard of review applicable to each of the plaintiffs' challenges must be determined. The parties stated at oral argument that they are in disagreement over the proper standard. The plaintiffs contend that if the state has imposed a legally significant burden on a fundamental right such as a woman's right of privacy, then the burden must be related to a compelling state interest and the statutory section imposing the burden must be narrowly drawn to achieve that compelling interest. The Commonwealth contends that the appropriate inquiry is whether the Act imposes an "undue burden."

 I do not believe that a meaningful distinction can be made between the plaintiffs' "legally significant burden" and defendants' "undue burden." I will employ the plaintiffs' term.

 If a legally significant burden on the exercise of a fundamental right is found to exist, then plaintiffs are correct that the compelling state interest standard is applied to determine the constitutionality of the statute imposing the burden. If no burden is found and no suspect class is involved, the issue is simply whether the state had a rational basis for making the classification contained in the statute. See J. Nowak, R. Rotunda & J. N. Young, Constitutional Law 68 (1978).

 The right to privacy which encompasses a woman's decision to terminate her pregnancy is a fundamental right. The imposition of a legally significant burden on that right would have to be justified by a compelling state interest. See Maher v. Roe, 432 U.S. 464, 53 L. Ed. 2d 484, 97 S. Ct. 2376 (1977). In Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) the court held no compelling state interest justified a sweeping prohibition of abortion. In the first trimester, the Court concluded that little or no regulation was permissible. The Court went on, however, to conclude that even when judged against the demanding compelling state interest test, "the State's dual interest in the health of the pregnant woman and the potential life of the fetus [are] sufficient to justify substantial regulation of abortions in the second and third trimesters." Maher v. Roe, 432 U.S. at 472. Each interest, health of the woman and life of the fetus, becomes compelling at some point in the pregnancy. Roe v. Wade, 410 U.S. at 162-63. As the interest becomes "compelling" it justifies some interference with the woman's fundamental right by way of regulation.

 
In the second trimester, the State's interest in the health of the pregnant woman justifies state regulation reasonably related to that concern . . . . At viability, usually in the third trimester, the State's interest in the potential life of the fetus justifies prohibition with criminal penalties, except where the life or health of the mother is threatened.

 Id. at 162-64.

 Thus, the right to privacy which protects a woman's decision to terminate her pregnancy, while fundamental, is not absolute. In other areas of constitutional law, if the compelling state interest or "strict scrutiny" standard applies, it has nearly always been fatal to the state law or act under consideration. See L. Tribe, American Constitutional Law 1000 (1978). In the area of abortion decisions, a compelling state interest has been found to support the challenged state law or act. See PPA v. Ashcroft, 655 F.2d 848 (8th Cir. 1981).

 The fact that the right involved here is not absolute effects as well the analysis of whether a legally significant burden has been imposed which would trigger strict scrutiny. The Court has observed that "although the state-created obstacle need not be absolute to be impermissible, we have held that a requirement for a lawful abortion 'is not unconstitutional unless it unduly burdens the right to seek an abortion.'" Maher v. Roe, 432 U.S. at 473. See also Beal v. Doe, 432 U.S. 438, 97 S. Ct. 2366, 53 L. Ed. 2d 464 (1977). The Court has also stated that whether a state's regulation of abortion will be found to be constitutional will "depend upon its degree and the justification for it." Id. Thus, to determine what constitutes a legal significant burden, one must look to the right allegedly burdened. In the case of the right to privacy to choose an abortion, the existence of a legally significant burden will be a matter of degree.

 IV. 24-HOUR WAITING PERIOD -- § 3205

 Section 3205 of the Act requires that there be a 24-hour waiting period between the time a woman seeking an abortion is provided the information specified in that section and the time the abortion is performed. Section 3205 applies to all abortions regardless of which trimester of pregnancy is involved.

 Plaintiffs contend that because this provision precludes the performance of an abortion, albeit for a temporary period, it imposes a legally significant burden on the effectuation of the abortion decision. Defendants contend that the 24-hour waiting period serves several useful purposes consistent with the Commonwealth's desire to further the public policy of encouraging childbirth over abortion. Additionally, the Commonwealth contends that a waiting period promotes truly informed decision-making by the woman.

 A mandatory 24-hour waiting period could have the effect of a much longer delay because of the nature of the working schedules of clinics and physicians. The 24-hour waiting requirement will require clinics and physicians to change their current practices and may increase the costs to the clinics and physicians. They intend to pass along these increased costs to their patients. (para. 131) Moreover, this provision, because it requires at least two visits to an abortion provider, will require women who must travel long distances to make two trips or to incur additional expense for overnight lodging in order to effectuate their abortion decision. The economic impact of this provision is further increased as it may require women who are employed to take additional time off from work. (paras. 123, 124)

 More fundamentally, the record demonstrates that the delay occasioned by this provision is contrary to the best medical interests of women seeking abortions.

 National studies show that the earlier an abortion is performed, the safer it is. (para. 88) Each week of delay in performing an abortion increases the complication rate by 15 - 30% and the death rate by 50%. (para. 89) I find that the 24-hour delay imposed by the statute would have a substantial impact on the health of a woman seeking an abortion. The risks of complications and mortality increase substantially with each week of delay in the performance of the abortion. (para. 89) In some cases, the delays caused by this requirement may cause patients to enter into the second trimester of pregnancy thereby substantially increasing the cost of the procedure and making the procedure more dangerous. (paras. 89, 123) Thus, a 24-hour delay, which stands to grow to a considerably longer delay because of the practices of the abortion providers, directly harms the medical interests of women.

 Virtually every federal court which has been required to pass on similar provisions has found them unconstitutional. In Akron Center v. Akron, the Sixth Circuit stated that the obvious effect of a 24-hour wait is to impose upon the process of obtaining an abortion a delay which has no medical basis. 651 F.2d at 1208. The court concluded that although a period of delay before surgery is often beneficial, an inflexible requirement of a 24-hour waiting period for an abortion does not serve the compelling state interest which is required under strict scrutiny analysis. Id.

 Similarly, the court in PPA v. Ashcroft stated that a 48-hour waiting period requirement in that case was unconstitutional because it increased delay and delay increased the risk to the woman. 655 F.2d at 866.

 V. DOCTOR-ONLY REQUIREMENT -- § 3205(a)(1)

 Plaintiffs challenge the provision of § 3205(a)(1) requiring that the information required to be disclosed to the patient by subsection (a)(1) be imparted by the physician and not his agent.

 The plaintiffs maintain that this "doctor-only" requirement will have a legally significant impact on the operation of medical providers which use trained counselors rather than physicians to discuss the abortion decision with patients and to secure a woman's informed consent. Plaintiffs argue that this requirement will result in an increase in the cost of abortions and will thereby restrict access to abortions without any legitimate state justification. Defendants, on the other hand, argue that the requirement does not interfere with the woman's abortion decision is justified by a legitimate state policy of insuring physician-patient consultation, and thereby promotes the state's interest in the health of its citizens and is permissible under existing decisional law.

 The parties have stipulated that the doctor-only requirement will require the plaintiffs to change their current practices. The parties further agree that such a change will increase costs to the plaintiff clinics, which costs will be passed along to women patients. (Stip. § 120)

 Nevertheless, I conclude that the "doctor-only" requirement does not create a legally significant burden on the right recognized in Roe v. Wade. Section 3205(a)(1) does not interfere with the woman's fundamental right to decide to have an abortion. Upon review of the stipulations of the parties, I am not convinced that the doctor-only requirement will require a presentation by the physician so lengthy as to become unduly burdensome or expensive. Further, the magnitude of any cost increase is speculative at best.

 Instead, the only certain impact of the doctor-only requirement is that the physician's work may become more laborious. This result, however, does not burden the woman's abortion decision. Further, as defendants point out, a statute which makes a "physician's work more laborious and less independent" does not itself violate the Constitution. Whalen v. Roe, 429 U.S. 589, 604-605, n. 33, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977).

 The doctor-only requirement fulfills the state's legitimate interest in the health of its citizens by insuring that the abortion decision is made after a patient-physician consultation. In Ashcroft, the Eighth Circuit upheld a provision that required the attending physician to inform the woman of the particular risks associated with the abortion technique to be used, and alternatives to abortion. The court stated that the minimal requirement was "consistent with the principle that the abortion decision is one to be made by a woman and her physician, and advances the state's interest in insuring that the decision is made with 'full knowledge of its nature and consequences.'" 655 F.2d at 869, citing Planned Parenthood v. Danforth, 428 U.S. at 67.

 For all these reasons and based on 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 ...


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