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American College of Obstetricians and Gynecologists v. Thornburgh

May 31, 1984

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, PENNSYLVANIA SECTION, HENRY H. FETTERMAN, M.D., THOMAS ALLEN, M.D., AND FRANCIS L. HUTCHINS, JR., M.D. ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, ALLEN J. KLINE, D.O., ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, BROOKS R. SUSMAN, PAUL WASHINGTON, MORGAN P. PLANT, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN, PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, REPRODUCTIVE HEALTH AND COUNSELING CENTER, AND WOMEN'S HEALTH SERVICES, INC., APPELLANTS IN NO. 82-1785 AND CROSS-APPELLEES IN NO. 82-1846
v.
RICHARD THORNBURGH, H. ARNOLD MULLER, HELLEN B. O'BANNON, MICHAEL J. BROWNE, WILLIAM R. DAVIS, LEROY S. ZIMMERMAN, PERSONALLY AND IN THEIR OFFICAL CAPACITIES, AND JOSEPH A. SMYTH, JR., PERSONALLY AND IN HIS OFFICIAL CAPACITY, TOGETHER WITH ALL OTHERS SIMILARLY SITUATED, APPELLEES IN NO. 82-1785 AND CROSS-APPELLANTS IN NO. 82-1846



On Appeal from the District Court for the Eastern District of Pennsylvania.

Seitz, Chief Judge, Higginbotham, and Sloviter, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

The Supreme Court has firmly established that the fundamental constitutional protection of privacy encompasses a woman's right to obtain an abortion. At issue before us is the appellants' contention that Pennsylvania's 1982 Abortion Control Act, 18 Pa. Cons. Stat. Ann. §§ 3201-3220 (Purdon 1983), impermissibly circumscribes that right. We examine that contention by considering the legislative background of the 1982 Act, the procedural posture of this case, the applicable Supreme Court decisions, and a section-by-section analysis of the Pennsylvania Act. We conclude that most of the provisions attacked by appellants are unconstitutional as a matter of law.

I.

LEGISLATIVE BACKGROUND OF THE 1982 ABORTION CONTROL ACT

Until Pennsylvania enacted its first comprehensive statute dealing with abortion, the relevant law provided that any person who took steps aimed at "unlawfully" causing a woman's miscarriage committed a felony punishable by fine and imprisonment. See Penel Code of 1939, No. 375, § 718, 1939 Pa. Laws 872, 958, saved from repeal, Crimes Code of 1972, No. 334, § 5, 1972 Pa. Laws 1482, 1611 (repealed 1974).*fn1 Because the statute die not define "unlawfully" and did not specify whether therapeutic abortions were excepted, it was unclear whether a physician in Pennsylvania could legally terminate a pregnancy that involved substantial risk to the physical or mental health of the mother, although other jurisdictions permitted such abortions. See Trout, Therapeutic Abortion Laws Need Therapy, 37 Temp. L.Q. 172, 184-86 (1964); Note, The Antiquated Abortion Laws, 34 Temp. L.Q. 146, 150-51 (1961).

The landmark decision in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), invalidated statutes such as Pennsylvania's because a general prohibition of abortions violated a woman's fundamental constitutional right to privacy. See also Doe v. Bolton, 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973). The following year, Pennsylvania enacted the state's first comprehensive "Abortion Control Act" over the governor's veto.Abortion Control Act of 1974, No. 209, 1974 Pa. Laws 639 (amended 1978, repealed 1982). Many of the provisions of that Act, such as those requiring spousal or parental consent to an abortion, banning advertising of abortion procedures, and enacting a vague criminal standard governing abortions at "viability," were held unconstitutional. See Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554 (E.D. Pa. 1975) (three-judge court), aff'd mem. in part sub nom. Franklin v. Fitzpatrick and vacated and remanded mem. in part sub nom. Beal v. Franklin, 428 U.S. 901, 49 L. Ed. 2d 1204, 96 S. Ct. 3201 (1976), modified on remand, No. 74-2440 (E.D. Pa. Sept. 16, 1977) (unreported), aff'd sub nom. Colautti v. Franklin, 439 U.S. 379, 384-86, 58 L. Ed. 2d 596, 99 S. Ct. 675 (1979) (explaining case history). See also Doe v. Zimmerman, 405 F. Supp. 534 (M.D. Pa. 1975) (three-judge court).

Thereafter, members of the Pennsylvania legislature made a renewed effort to enact a comprehensive scheme that contained stringent limitations on abortions.*fn2 That bill was rejected by the relevant legislative committee; however, when presented on the floor of the House as an amendment to an unrelated Senate bill,*fn3 it passed overwhelmingly. Representative Stephen Freind, leader of floor debate and co-sponsor of the bill, reportedly explained its import at a news conference as follows:

Look, we can't stop abortions. The message we're sending to doctors is this: "We can't stop you from performing abortions. We wish we could, and we hope to God that someday we'll get the Human Life Amendment so we can. But until that time there are going to be regulations you'll have to follow if you're going to perform abortions."

Ecenbarger, The Life and Death of Senate Bill 742, Philadelphia Inquirer, Jan. 31, 1982, Today Magazine at 23.

The Senate, after scant debate, concurred in the House amendment. Pennsylvania's Governor, Dick Thornburgh, vetoed the bill stating,

I am concerned that [some] provisions, and to some extent the entire tone and tenor of the bill, would have the effect of imposing an undue, and, in some cases, unconstitutional burden upon even informed mature adults intent on obtaining an abortion under circumstances in which the U.S. Supreme Court has determined they are entitled to do so.

Veto Message to the Senate (Dec. 23, 1981), History of Senate Bills V-2, V-4 (1981-82).*fn4 The abortion control bill was then revised to some extent and, after being introduced on the floor of the House as an amendment to a bill regulating paramilitary training, passed both the House and Senate. It was signed by the Governor on June 11, 1982, to become effective December 8, 1982.

In brief, the 1982 Abortion Control Act imposes detailed regulation of abortions, requiring that a physician give specified information for informed consent; that a pregnant woman wait 24 hours to give her consent; that unemancipated minors obtain parental or judicial consent; and that all second trimester abortions be performed in hospitals. The Act also strictly limits abortions after a fetus may be "viable"; requires use of techniques and, in some instances, the presence of a second physician, to save the aborted fetus; imposes detailed reporting rules; requires pathology reports; restricts the use of public resources for abortions;*fn5 and regulates private insurance coverage. Physicians and clinics violating the Act's provisions are subject to criminal prosecution for felonies and misdemeanors, as well as to revocation or suspension of licenses and to civil tort liability.

II.

PROCEDURAL HISTORY

Before the Act took effect, plaintiffs, the American College of Obstetricians and Gynecologists, Pennsylvania Section (ACOG), individual physicians who perform abortions, abortion clinics, clergy, and one woman who has health insurance including comprehensive coverage for abortion, filed suit in the United States District Court for the Eastern District of Pennsylvania alleging that the Act was unconstitutional in its entirety. They filed a motion for preliminary injunction, accompanied by 41 affidavits from physicians, minors, counselors, experts, clinic directors and religious leaders and a comprehensive memorandum of law. Defendants, the governor and six other state and local officials (referred to collectively as Pennsylvania), submitted an equally comprehensive opposing memorandum. The parties submitted the issues to the district court on a detailed stipulation of uncontested facts ("Stipulation") in lieu of testimony.

The district court issued an order on December 7, 1982 enjoining the mandatory 24-hour waiting period of section 3205. The court concluded, however, that plaintiffs had failed to establish a likelihood of success as to the remaining provisions and as to the Act in its entirety. American College of Obstetricians and Gynecologists v. Thornburgh, 552 F. Supp. 791 (E.D. Pa. 1982).*fn6 In its opinion, the district court relied in significant part on two decisions from other circuits which were then pending before the Supreme Court, Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198 (6th Cir. 1981), aff'd in part and rev'd in part, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983) (Akron), and Planned Parenthood Association v. Ashcroft, 655 F.2d 848 (8th Cir. 1981), aff'd in part and rev'd in part, 462 U.S. 476, 103 S. Ct. 2517,76 L. Ed. 2d 733 (1983) (Ashcroft).

Plaintiffs immediately filed a notice of appeal, and the Commonwealth cross-appealed as to the 24-hour waiting period. On December 9, 1982, this court granted plaintiffs' request for a stay of enforcement of the Act pending appeal. After expedited briefing and oral argument, we ordered the matter held pending the Supreme Court's decision in Akron, Ashcroft, and a third case involving criminal sanctions for abortions, Simopoulos v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983). Following those decisions, we directed the parties to file supplemental briefs and heard reargument on the impact of those cases on the issues before us. Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a district court's ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law. Apple Computer, Inc. v. Franklin Corp., 714 F.2d 1240, 1242 (3d Cir. 1983).

III.

LEGAL PRINCIPLES GOVERNING ABORTIONS

The legal principles which guide our consideration of the Pennsylvania statute have evolved from the Supreme Court decisions in which the Court considered various state statutes or local ordinances regulating and/or prohibiting abortions.*fn7 The polestar remains the seminal opinion of Justice Blackmun writing for the majority in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). There the Court held that the fundamental constitutional right of privacy, which guarantees freedom of personal choice in matters of marriage and family life, see, e.g., Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965), also encompasses a woman's right to choose an abortion. 410 U.S. at 153. In the decade of decisions following Roe v. Wade, "the Court repeatedly and consistently has accepted and applied the basic principle that a woman has a fundamental right to make the highly personal choice whether or not to terminate her pregnancy." City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 2487, 76 L. Ed. 2d 687 n.1 (1983) (Akron).

Because abortion is a medical procedure requiring the advice and assistance of competent, trained medical personnel, a woman cannot exercise her fundamental right alone. For this reason, the states must give the physician room to exercise sound medical judgment in assisting the woman to make and implement her decision. See Akron, 103 S. Ct. at 2491; Colautti v. Franklin, 439 U.S. 379, 387,58 L. Ed. 2d 596, 99 S. Ct. 675 (1979); Doe v. Bolton, 410 U.S. 179, 192,35 L. Ed. 2d 201, 93 S. Ct. 739 (1973).

Even after the affirmation of these principles in Roe v. Wade and their reaffirmation in the cases that followed, some states have continued to enact laws limiting the pregnant woman's constitutional right by placing burdensome restrictions on her physician, and by imposing other obstacles that prevent, delay, or discourage the woman's attempt to vindicate her right of personal choice. The role of the courts in reviewing such legislation has been clearly delineated: "[R]estrictive state regulation of the right to choose abortion, as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest." Akron, 103 S. Ct. at 2491; Roe v. Wade, 410 U.S. at 155.

The Supreme Court has identified two compelling state interests that may justify regulation or control of the woman's exercise of her right: the health of the pregnant woman and the protection of the fetus capable of meaningful life.*fn8 The Court has viewed the strength of the relevant interests in terms of the trimesters of pregnancy.

The state's interest in the mother's health becomes compelling at the end of the first trimester. Roe v. Wade, 410 U.S. at 163. Because of the relative simplicity and safety of abortion procedures during the first trimester, regulations imposed during that period and that restrict competent medical personnel do not appreciably advance the State's interest in maternal health. Akron, 103 S. Ct. at 2492 & n.11, 2495 (explicitly retaining the trimester standard). The absence of a compelling state interest during the first trimester requires that the state permit the woman, "in consultation with her physician, to decide to have an abortion and to effectuate that decision, 'free of interference by the state.'" Akron, 103 S. Ct. at 2492 (quoting Roe v. Wade, 410 U.S. at 163).*fn9

From the end of the first trimester, the state may "regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." Roe v. Wade, 410 U.S. at 163. These regulations may not depart from accepted medical practice. Akron, 103 S. Ct. at 2493. Moreover, the restrictions adopted as health standards must be legitimately and directly related to the health objective and must not be overbroad or unreasonably burdensome upon a woman's access to an abortion,*fn10 since during this period the state may not seek to "directly restrict[] a woman's decision whether or not to terminate her pregnancy." Colautti v. Franklin, 439 U.S. at 386.

The interest of the state in the potentiality of human life becomes compelling only at "viability," when the attending physician, "on the particular facts of the case before him," concludes there is a reasonable likelihood of the fetus' "sustained survival" and "meaningful life" outside the womb. Colautti v. Franklin, 439 U.S. at 387-88; see Roe v. Wade, 410 U.S. at 163. In Roe, the Court observed that most physicians placed viability at about seven months, though some considered it possible as early as six months, the end of the second trimester. 410 U.S. at 160.

States may regulate abortions after viability in the interest of the unborn child and may even prohibit abortions, except those to preserve the life or health of the mother. Id. at 164-65. "Serious ethical and constitutional difficulties" are presented, however, if such measures do not clearly prevent the doctor from "trading off" the health of the woman for that of the fetus. Colautti v. Franklin, 439 U.S. at 400. See also Ashcroft, 103 S. Ct. at 2522 n.8 (plurality); id. at 2530-31 (dissent). The Court has carefully examined statutes that impose duties or criminal sanctions on the physician at "viability" because of the significant dangers such laws pose as to vagueness, overbreadth, interference with the doctor-patient relationship, and chilling of the woman's constitutional rights. See, e.g., Planned Parenthood v. Danforth, 428 U.S. at 82-84 (overbreadth); Colautti v. Franklin, 439 U.S. at 389-400 (vagueness, chilling, overbreadth).

With these principles in mind we turn to the Pennsylvania Act. We may not inquire as to whether the Pennsylvania legislature's intent to restrict a pregnant woman's fundamental right to choose an abortion was so "fundamental an inducement" as to invalidate the entire act, see 2 C. Sands, Sutherland Statutory Construction § 44.06 (4th ed. 1973), or whether the provisions that the Commonwealth now concedes are unconstitutional and those that we conclude impermissibly infringe on the woman's rights, see infrax, are so central to the Act's dominant purpose as to warrant voiding the entire statute. See 2 C. Sands at § 44.07. Instead of invalidating the entire act, as appellants urge, we are obliged to follow the example of the Supreme Court in overlooking what may reasonably be deemed to be a pervasive invalid intent, and instead review the various provisions of the Pennsylvania statute independently, and on their own merit. See, e.g., Ashcroft, 103 S. Ct. at 2521-26; Planned Parenthood v. Danforth, 428 U.S. at 63-67, 79-81 (both upholding portions of Missouri's comprehensive abortion legislation). The relevant provisions of the Pennsylvania 1982 Abortion Control Act are set forth in Appendix A to this opinion.

IV.

PROVISIONS CONCEDED TO BE UNCONSTITUTIONAL

The Commonwealth properly concedes that in light of Akron and Ashcroft, several sections of the Act are unconstitutional on their face. The only provisions enjoined by the district court are found in §§ 3205(a)(1) and (a)(2), and impose a 24-hour waiting period between the time a woman seeking an abortion receives the required medical advice and the time a physician may accept her certification of informed consent and perform the abortion. The Supreme Court in Akron found that no interest in maternal health was furthered by such an "arbitrary and inflexible waiting period" and that such a mandatory 24-hour waiting period impermissibly infringed upon the physician's discretion in the exercise of medical judgment, while increasing the cost and risk in delay of abortions by requiring two trips to an abortion facility. 103 S. Ct. at 2503. "If a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision." Id.

Second, the Commonwealth concedes that the district court erred in upholding the requirement in section 3205(a)(1) that the physician performing the abortion or the referring physician, "but not . . . the agent or respresentative of either," counsel the woman on the risks of the abortion procedure. The Supreme Court found in Akron that it was "unreasonable for a State to insist that only a physician is competent to provide the information and counseling relevent to informed consent," 103 S. Ct. at 2503, because the State's interest is in ensuring that the woman "obtains the necessary information and counseling from a qualified person, not [in] the identity of the person from whom she obtains it." Id. at 2502.

Third, the Commonwealth concedes the unconstitutionality of section 3209, which requires that all non-emergency abortions after the first trimester be performed in a hospital. The Supreme Court concluded that such a provision "places a significant obstacle in the path of women seeking an abortion." Akro n, 103 S. Ct. at 2495. Not only do costs greatly increase, but given the difficulty of finding a willing hospital the requirement "may force women to travel to find available facilities, resulting in both financial expense and additional health risk." Id. This significant burden is not justifiable as a health regulation because many second-trimester abortions can be performed safely on an outpatient basis. Thus, the requirement "has the effect of inhibiting . . . the vast majority of abortions after the first 12 weeks and therefore unreasonably infringes upon a woman's constitutional right to obtain an abortion." Id. at 2497 (quoting Planned Parenthood v. Danforth, 428 U.S. at 79) (citation omitted).These rulings by the Supreme Court are dispositive of the similar provisions in the Pennsylvania Act.

V.

CHALLENGED PROVISIONS

§ 3203: Definitions

Abortion

The Act defines abortion as the use of any means to terminate a "clinically diagnosable" pregnancy "with knowledge that the termination by those means will, with reasonable likelihood, cause the death of the unborn child." It expressly excludes from the definition "the use of an intrauterine device or birth control pill to inhibit or prevent ovulation, fertilization or the implantation of a fertilized ovum within the uterus." Appellants challenge this definition as vague and overbroad. They argue that it may be read to include ordinary gynecological procedures on women not known or believed to be pregnant which cause an abortion when the woman's pregnancy was, in fact, diagnosable, and that this invalidity infects and is inseparable from the remainder of the Act. The Commonwealth concedes that the statute will survive only if "abortion" is defined to include an intent requirement. Brief for Appellees at 37-39.

If the Act explicitly defined abortion as the intentional termination of a human pregnancy, it would satisfy the requirement that a statute "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954), or give "a reasonable opportunity to know what is prohibited," Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). We have the duty in "marginal cases" to make the offense "constitutionally definite by a reasonable construction of the statute," United States v. Harriss, 347 U.S. at 618, and thus read the definition to incorporate an intent requirement as defined in the Pennsylvania Code, 18 Pa. Cons. Stat. Ann. § 302(b)(1) (Purdon 1983), thereby saving it from unconstitutionality.

Physician

"Physician" is defined as "[a]ny person licensed to practice medicine in this Commonwealth." Appellants argue that the Act excludes osteopaths and that this exclusion violates the Equal Protection clause of the Fourteenth Amendment. The Commonwealth concedes that osteopaths are qualified to perform abortions. Brief for Appellees at 34; Stipulation PP56-57, App. at 84-85a. The Commonwealth contends that because osteopathic physicians are included in the general definition of "physician" as "an individual licensed under the laws of this Commonwealth to engage . . . in the practice of osteopathy or osteopathic surgery . . .," contained in the Statutory Construction Act, 1 Pa. Cons. Stat. Ann. § 1991 (Purdon Supp. 1982),*fn11 they are also within the class of "physicians" allowed to perform abortions under the Abortion Control Act.

The language of the abortion statute undercuts the Commonwealth's position. It requires that the physician be "licensed to practice medicine," which under Pennsylvania law, is distinguished, for some purposes, from being "licensed to practice osteopathic medicine," 63 Pa.Stat. Ann. § 421.17, even though the disciplines substantially overlap. The two branches are regulated by different acts, the Medical Practice Act, 63 Pa.Cons. Stat.Ann. § 471.1-18 (Purdon Supp. 1983), and the Osteopathic Practice Act, 63 Pa.Cons.Stat.Ann. §§ 271.1-.18 (Purdon Supp. 1983), which establish separate regulatory bodies and qualifications.

Furthermore, the suggestion that the legislature intended to include osteopaths as "physicians" is inconsistent with the Act's disciplinary sanctions, which include license suspension and revocation under the Medical Practice Act but not under the Osteopathic Medical Practice Act. See Abortion Control Act, 18 Pa. Cons. Stat. Ann. §§ 3205(d), 3205(c), 3206(i), 3209, 3211(b), 3213(c), 3214(i), 3219(a). The Medical Practice Act, by its express terms, does not apply to osteopathy. 63 Pa. Cons. Stat. Ann. § 421.17(a)(6).

In light of this statutory structure, and in the absence of a narrowing construction by Pennsylvania courts, we are unable to adopt the construction of the district court that "physician" in the Abortion Control Act includes osteopaths. However, our conclusion does not require striking down the entire Act. The better approach to this underinclusive statute is the one suggested by the Commonwealth as in accord with legislative intent: to strike and enjoin enforcement of the definition of "physician" contained in section 3203, thereby returning the definition of physician to that generally applicable and contained in the Statutory Construction Act, which includes osteopaths. See Califano v. Westcott, 443 U.S. 76, 89, 61 L. Ed. 2d 382, 99 S. Ct. 2655 (1979); Snider v. Thornburgh, 496 Pa. 159, 178079, 436 A.2d 593, 602 (1981).

§ 3205: Informed Consent

The provision that an abortion can be performed only with the voluntary and informed consent of the woman, which appellants do not challenge, also requires that specific information be imparted to her in order to secure her informed consent.*fn12 The district court rejected appellants' challenge to this requirement on the ground that it was not shown to cause undue burden or expense. 552 F. Supp. at 798-800.

Section 3205(a)(1) sets forth five categories of information that must be provided, including "the fact that there may be detrimental physical and psychological effects which are not accurately foreseeable" ((a)(1)(ii)), and "the probable gestational age of the unborn child at the time the abortion is to be performed" ((a)(1)(iv)). Section 3205(a)(2) sets forth three additional categories of information that must be provided, including "the fact that medical assistance benefits may be available for prenatal care, childbirth and neonatal care" ((a)(2)(i)); "the fact that the father is liable to assist in the support of her child, even in instances where the father has offered to pay for the abortion" ((a)(2)(ii)); and the fact that the woman has the right to review certain printed materials described in section 3208, which include, e.g., "geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies;" a statement that "the Commonwealth of Pennsylvania strongly urges you to contact [these agencies] before making a final decision about abortion"; and "materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including any relevant information of the possibility of the unborn child's survival." See 18 Pa. Cons. Stat. Ann. § 3208 (incorporated by reference in § 3205(a)(2)(iii)).

No Supreme Court opinion has sustained a statutory provision prescribing in specific terms, as here, the types of information that should be provided to a pregnant woman seeking an abortion. Instead, in Akron, where the Court reviewed an ordinance requiring the proviison of specific information, much of which parallels that required here,*fn13 the Court struck the provision in its entirety. The Court did so in reliance on two central precepts that have informed the abortion decisions since Roe v. Wade and Doe v. Bolton: first, the principle of deference to the physician's medical judgment, which "may be exercised in light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient," and the concomitant need to allow "the attending physician the room he needs to make his best medical judgment," Doe v. Bolton, 410 U.S. at 192, and second, the requirement that the state avoid regulations "designed to influence the woman's informed choice between abortion of childbirth." Akron, 103 S. Ct. at 2500.

As in Akron, "it is fair to say that much of the information required [availability of benefits, support liability, unforeseeable risks] is designed not to inform the woman's consent but rather to persuade her to withhold it altogether," an objection the Court found decisive in that case. 103 S. Ct. at 2500. Further, as in Akron, the specification of "a litany of information that the physician must recite to each woman regardless of whether in his judgment the information is relevant to her personal decision" imposes objectionable obstacles to "the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances." Id.

The Akron case reaffirms that the doctor/counselor must be given the opportunity to tailor the information given a patient to the exigencies of the case. Although some of the information listed in the Pennsylvania Act would be unobjectionable standing alone, see, e.g., 18 Pa. Cons. Stat. Ann. § 3205(a)(1)(i) (name of physician who will perform the abortion), and although the state may require in general terms that the woman be provided with information needed to secure her consent, Akron, 103 S. Ct. at 2501, the informed consent provisions of section 3205, just as those in Akron, are not severable. See id. at 2501 n.37.The entire scheme here and as incorporated in other sections defining voluntariness in terms of specific information to be provided is invalid, and cannot be enforced.

§ 3206: Parental Consent

In this provision, the Act requires unemancipated minors to obtain the consent of their parents or a court order before an abortion can be performed. Appellants argue that this section deprives minors who choose abortion of equal protection of the law because it singles out abortion as the only pregnancy-related medical procedure requiring third party consent. Although this particular challenge was not before the Court in Akron or Ashcroft, and was specifically reserved by the Court in Bellotti v. Baird, 443 U.S. 622, 650, 61 L. Ed. 2d 797, 99 S. Ct. 3035 n.30 (1979) ( Bellotti II), the Court has rejected challenges to abortion statutes based on different treatment in other contexts between abortions and other medical decisions. See H. L. v. Matheson, 450 U.S. 398, 412-13, 67 L. Ed. 2d 388, 101 S. Ct. 1164 (1981) (distinction as to parental notice); Harris v. McRae, 448 U.S. 297, 325, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980) (abortion funding); Planned Parenthood v. Danforth, 428 U.S. at 66-67 (written consent to abortion).

Moreover, states are permitted to regulate a minor's exercise of her constitutional rights in a manner that would not be permissible in the case of an adult in light of the special consideration that minors need. The Court has held that consent or notice provisions are important protections for minors who, because of stress or ignorance of alternatives, may not be able intelligently to decide whether to have an abortion. Id.; Bellotti II, 443 U.S. at 640-41 (plurality opinion by Powell, J.); see also Akron, 103 S. Ct. at 2491 n.10.Therefore, we reject appellants' equal protection challenge.

Appellants also contend the section is void for vagueness because the term "emancipation" is not defined in the Act. The same defect was alleged in Ashcroft but was rejected by the Court on the ground that the term had a clear meaning in Missouri common law. 103 S. Ct. at 2525 n.18. Thus, the fact that in Pennsylvania, as in Missouri, "the question whether a minor is emancipated turns upon the facts and circumstances of each individual case" does not make it vague as a matter of law. Id.; see also Indiana Planned Parenthood Affiliates Association v. Pearson, 716 F.2d 1127, 1140 (7th Cir. 1983). We reject the vagueness challenge.

Appellants' challenge to the procedural inadequacies of this section causes us more concern. The state cannot impose a parental veto on the decision of a minor to undergo an abortion, Bellotti II, 443 U.S. at 649-50, and the state must provide an "alternative procedure whereby a pregnant mother may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests." Akron, 103 S. Ct. at 2498.This alternative is particularly important because "there are few [other] situations in which denying a minor the right to make an important decision will have consequences so grave and indelible." Bellotti II, 443 U.S. at 642.

The Missouri statute upheld in Ashcroft establishing alternative court proceedings for minor consent contained detailed provisions assuring confidentiality and dispatch, establishing a clear and simple procedure for the minor to follow in setting forth her petition, and directing court personnel to assist the minor in preparing the petition. Ashcroft, 103 S. Ct. at 2519-20 n.4, 2525-26. Comparable provisions are absent in the Pennsylvania statute.This difference is critical. To pass constitutional muster, the alternative judicial procedure must be an established and practical avenue and may not rely solely on generally stated principles of availability, confidentiality, and form.

However, in light of the Pennsylvania Act's provision requiring the Supreme Court of Pennsylvania to promulgate rules assuring confidentiality and promptness of disposition, we cannot hold that the provision is facially unconstitutional. We have been advised that the Pennsylvania Supreme Court has not yet enacted any rules to fill in the gaps of the Pennsylvania statute. In fact, it appears that the only county to establish rules on its own also included a provision for notification of the parents or alleged father, see Local R. No. 16.3(B), C.P. Chester County, 13 Pa. Admin. Bull. 2187, 219 (1983), an obligation that may obstruct, rather than implement, the requirement that an alternative decision-maker be available. See Indiana Planned Parenthood Affiliates Association v. Pearson, 716 F.2d at 1132, 1139.

We cannot agree with the Commonwealth's suggestion that we regard a letter written by the then Chief Justice to the Common Pleas courts suggesting that the courts apply adoption rules "if applicable", see Letter from Hon. Henry X. O'Brien, Chief Justice, to Hon. Anthony R. Appel, President Judge, C.P. Lancaster County (Nov. 16, 1982), included in Supplemental Brief for Appellees (Exhibit A) as a satisfactory substitute for written and explicit rules that fill the statutory gap. Consequently, although we do not invalidate section 3206, its operation should be enjoined until the state promulgates regulations, without prejudice to the right of these or other plaintiffs to attempt to demonstrate in this action, if still pending, or in some future action, that the regulations are unconstitutional.

§ 3207(b): Abortion Facilities, Reports

The challenged portion of this section requires abortion facilities to file reports that are subject to public disclosure containing information regarding abortion facilities and their affiliates. Appellants contend this forced disclosure is likely to subject them to threats, reprisals or harassment from segments of the public opposing abortion.

We agree with the district court that there is no evidence in the record that this section will appreciably affect a woman's abortion decision. Appellants have not as yet demonstrated a nexus between the disclosure of such information and the chilling of constitutional rights.Therefore we find inapposite Brown v. Socialist Workers '74 Campaign Committee, 103 S. Ct. 416 (1982), on which appellants rely, where the Court held that compelled disclosure of party contributor lists may reasonably lead to harassment based on associational ties. Since there has been no showing of any effect of the disclosure on the abortion decision, and the state has proffered the important justification that the provision will help insure that shoddy practitioners may not hide behind the corporate veil, we reject appellants' challenge.

§ 3208: Printed Information

This provision, discussed in connection with section 3205, fails for the reasons discussed there. We conclude it is inextricable intertwined with section 3205, and therefore cannot be severed. There is no certainty of any legislative intent that section 3208 should stand alone. We express no view as to whether the state may undertake an independent informational campaign relating to abortion, since it has not done so here.

§ 3210: Abortion After Viability

Prohibition

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. A physician has two "complete defense[s]": that he had "concluded in good faith, in his best medical judgment," that (1) "the unborn child was not viable at the time the abortion was performed or induced," or that (2) "the abortion was necessary to preserve maternal life or health."

In Roe v. Wade, the Court decided that the "important and legitimate interest [of the state] in protecting the potentiality of human life" becomes so compelling at viability that at this stage the state may proscribe abortions altogether, "except when it is necessary to preserve the life or health of the mother." 410 U.S. at 162, 164. Apparently because of this language, and its reiteration in the decisions that followed, appellants have not challenged the state's use of "viability" as the determining time when abortions are proscribed. Indeed, a statute that established the limit for performance of abortions in terms of the weeks of pregnancy would have been invalid. As the Court stated in Danforth, "It is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation perid." 428 U.S. at 64.

On the other hand, because of the uncertainty of the viability determination itself, a statute that imposes strict criminal and civil liability upon a physician for performing or inducing an abortion after viability may create a profound chilling effect on the willingness of physicians to perform abortions near the point of viability. See Colautti v. Franklin, 439 U.S. at 396.Thus, we must be particularly cautious in scrutinizing these provisions to assure that they have not imposed or caused an impermissible restriction on acts that are constitutional. It is noteworthy that no Supreme Court case has upheld a criminal statute prohibiting abortion of a viable fetus. Each such statute considered either did not contain such a criminal provision effective at viability or was invalidated because there were fatal omissions in the statutory language or scheme. See Danforth, 428 U.S. at 81-84 (plurality); id. at 89 (Stewart J., concurring) (upholding definition of viability, but striking down criminal sanction as overboard); Colautti v. Franklin, 439 U.S. at 396 (striking down criminal sanction pertaining to viability as vague and potentially overbroad).*fn14 We therefore first consider whether this provision suffers from the same defects.

The declaration of the prohibited act, i.e. abortion of a viable fetus, must be construed to incorporate the statutory definition of "viability" in section 3203. Appellants mount no independent challenge to that definition, and it parallels the definition of "viability" upheld in Danforth, 428 U.S. at 63.*fn15 Instead, appellants challenge the adequacy of the defenses, claiming that they are too narrow and we are violative of due process. Appellants claim that section 3210(a) is unconstitutional because it places the burden on the defendant physician to prove his or her innocence. They argue that the Pennsylvania Act does not squarely place the burden of proving absence of medical necessity on the state.

In United States v. Vuitch, 402 U.S. 62, 28 L. Ed. 2d 601, 91 S. Ct. 1294 (1971), the Court construed the District of Columbia's abortion ordinance, which also did not explicitly place upon the state the burden of proving the abortion was unnecessary. The Court, however, in construing the statute to uphold its constitutionality, reasoned that Congress could not have intended that a physician be required to prove his or her innocence, and held that the ordinance placed the burden on the prosecution to plead and prove the abortion was unnecessary. Id. at 70-71. Thereafter, in Simopoulos v. Virginia, 103 S. Ct. at 2535, the Court held that it was permissible to place the burden on the defendant to invoke medical necessity as a defense, if the burden of proof of lack of medical necessity then shifted to the prosecution.

We recognize that the Pennsylvania Supreme Court, unlike the Virginia Supreme Court, has not yet issued an authoritative construction that the burden of proof as to lack of necessity rests with the prosecution. We are confident that the Supreme Court of Pennsylvania, if and when confronted with the issue, will also construe the statute in the manner adopted by the Supreme Court of the United States and the Supreme Court of Virginia. Because we believe the statute must be read as placing on the prosecution the burden of proving absence of medical necessity, we reject appellants' challenge on this ground.

The second defense in § 3210(a) specifies that a physician may perform an abortion even after viability when necessary "to preserve maternal life or health." It is clear from the Supreme Court cases that "health" is to be broadly defined. As the Court stated in Doe v. Bolton, the factors relating to health include those that are "physical, emotional, psychological, familial, [as well as] the woman's age." 410 U.S. at 192.

As appellants have noted in their challenge to section 3210(b), it is apparent that the Pennsylvania legislature was hostile to this definition. Section 3210(b) contains the statement, "The potential psychological or emotional impact on the mother of the unborn child's survival shall not be deemed a medical risk to the mother." Had the legislature imposed this qualification on the language "maternal . . . health" in section 3210(a), we would have no hesitation in declaring that provision unconstitutional. However, since it does not so state, and we are bound to construe it as constitutional, if possible, we again rely with confidence on the Supreme Court of Pennsylvania to construe "health" as does the Supreme Court of the United States.

We remain deeply concerned, however, because it is not improbable that imposition of criminal sanctions on physicians for the abortion of a viable fetus may deter conscientious physicians from undertaking the risk of error when the pregnancy approaches the end of the second trimester. However, the record is silent on this issue. At this stage of the proceeding, and in light of the Supreme Court's reiteration of the state's power to prohibit abortion of a viable fetus unless medically necessary, we are compelled to reject any challenge to the facial ...


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