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AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS

June 17, 1985

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


Huyett, J.


The opinion of the court was delivered by: HUYETT

HUYETT, J.

 Presently pending before me is the issue of whether or not to enjoin the Commonwealth of Pennsylvania from enforcing the public disclosure requirements of sections 3207(b) and 3214(f) of the Pennsylvania Abortion Control Act. In order to place the present issues in context, it is first necessary to review the history of this case, a case which has evolved into a procedural morass.

 The Pennsylvania Abortion Control Act was enacted on June 11, 1982 and was scheduled to become effective 180 days thereafter. In October, 1982, plaintiffs filed their complaint and on October 29, 1982, they filed a motion for preliminary injunction. After a hearing on December 2, 1982 and after considering the parties' extensive stipulation of facts, their proposed findings of facts and conclusions of law and memoranda of law, I issued an order on December 7, 1982 granting a preliminary injunction as to § 3205 of the Act and denying plaintiffs' motion for a preliminary injunction as to the remainder of the Act. 552 F. Supp. 791.

 Plaintiffs immediately filed a notice of appeal and the Commonwealth cross-appealed as to the twenty-four hour waiting period of section 3205. On December 9, 1982, the Third Circuit granted plaintiffs' request for a stay of enforcement of the Act pending the appeal. After briefing and oral argument, the Third Circuit ordered the case held pending Supreme Court decisions in three then-pending abortion cases. After the Supreme Court decisions were issued, the Third Circuit requested additional briefing, heard reargument, and on May 31, 1984 filed its opinion, 737 F.2d 283.

 Defendants thereafter filed an appeal to the Supreme Court pursuant to 28 U.S.C. § 1254(2), challenging the Third Circuits' holding certain sections of the Act unconstitutional. The Supreme Court has recently stated that it will hear oral arguments in this case next term although the Court did not note jurisdiction. 471 U.S. 1014, 105 S. Ct. 2015, 85 L. Ed. 2d 297, 53 U.S.L.W. 3739 (1985).

 In the meantime, defendants filed a motion on July 20, 1984 to stay proceedings in this court pending the outcome of the appeal before the Supreme Court. Plaintiffs stated that they would not object to the stay of proceedings if the reports required by sections 3207(b) and 3214(f) were maintained confidentially, i.e. if the enforcement of the disclosure provisions of §§ 3207(b) and 3214(f) were enjoined. By order dated September 13, 1984, I granted defendants' motion for a stay with the proviso that any reports filed pursuant to sections 3207(b) and 3214(f) would be maintained in confidence by the Commonwealth and would not be made available for public inspection pending an early hearing on these matters. On February 7, 1985, a hearing was held at which plaintiffs presented the testimony of several witnesses and documentary evidence; the defendants introduced several documents. After the hearing I requested additional briefing on several issues and then held oral argument on April 11, 1985.

 The following constitute my findings of fact, discussion, and conclusions of law for purposes of a preliminary injunction.

 FINDINGS OF FACT

 1. The total number of abortions performed in Pennsylvania from January 1 to December 31, 1983 and reported to the Pennsylvania Department of Health was 59,288.

 2. Of the 59,288, 70.3 percent (41,656) were performed in free-standing clinics; 25.6 percent (15,176) were performed in hospitals, and 4.1 percent (2,456) were performed in doctors' offices.

 3. In a letter dated March 12, 1979 and addressed to Senator Henry Messinger, Dr. Frank Weaver, D.O.F.A.C.O.O.G., stated that he felt harassed by having his name revealed pursuant to the Right-to-Know statute as that of a doctor who performed abortions. He suggested that one alternative for him might be to cease providing this service. Plaintiffs' Exhibit 2.

 4. Prior to the enactment of the Abortion Control Act of 1982, it was the policy of the Department of Health of the Commonwealth of Pennsylvania to separate abortion records submitted by each facility licensed in the Commonwealth from the cover sheet which identified the facility. This policy was "to avoid the possibility that certain facilities and physicians could be pressured and possibly harassed by members of the public objecting to the medical abortion practice." Plaintiffs' Exhibit 7. It was the position of the Department of Health "that patient care may suffer if physicians or abortions clinics are under harassment . . ." Id.

 5. The Pennsylvania Abortion Control Act became law on June 11, 1982 and was scheduled to go into effect 180 days thereafter.

 6. Section 3207(b) states

 Reports -- Within 30 days after the effective date of this chapter, every facility at which abortions are performed shall file, and update immediately upon any change, a report with the department, which shall be open to public inspection and copying, containing the following information:

 (1) Name and address of the facility.

 (2) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations.

 (3) Name and address of any parent, subsidiary or affiliated organizations, corporations or associations having contemporaneous commonality of ownership, beneficial interest, directorship or officership with any other facility. Any facility failing to comply with the provisions of this subsection shall be assessed by the department a fine of $500 for each day it is in violation hereof. 18 Pa. Cons. Stat. Ann. § 3207(b).

 7. Section 3214(f) states

 Report by facility -- Every facility in which an abortion is performed within the Commonwealth during any quarter year shall file with the department a report showing the total number of abortions performed within the hospital or other facility during the quarter year. This report shall also show the total abortions performed in each trimester of pregnancy. These reports shall be available for public inspection and copying. 18 Pa. Cons. Stat. Ann. § 3214(f).

 8. Section 3202(d) states

 Right of conscience -- It is the further public policy of the Commonwealth of Pennsylvania to respect and protect the right of conscience of all persons who refuse to obtain, receive, subsidize, accept or provide abortions including those persons who are engaged in the delivery of medical services and medical care whether acting individually, corporately or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability or financial burden upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in refusing to obtain, receive, subsidize, accept or provide abortions. 18 Pa. Cons. Stat. Ann. § 3202(d).

 9. The Bureau of Alcohol, Firearms and Tobacco investigated 30 bombings of abortion clinics and counselling centers in the years 1982, 1983, and 1984, twenty-four of which occurred in 1984. Plaintiff's Exhibit 9.

 10. In a statement on January 3, 1985, President Reagan condemned the bombings of abortion clinics as violent, anarchist activities and directed the Justice Department to step-up its investigation of the attacks. Plaintiff's Exhibit 8.

 11. Margaret K. Ross, Director of Educational Programs at Hillcrest Women's Medical Centers testified at the hearing on February 7, 1985. Ms. Ross testified in a candid, forthright manner and I found her to be a credible witness.

 12. Hillcrest operates five medical facilities, two in the District of Columbia; one in Baltimore, Maryland; one in York, Pennsylvania, and one in Harrisburg, Pennsylvania. Tr. 12.

 13. In the past year, the frequency of demonstrations at the Harrisburg Hillcrest Center has escalated as has the telephone harassment of the clinic. Telephone harassment includes calls to schedule bogus appointments. Tr. 15-16.

 14. Security at the Harrisburg Hillcrest Center has been increased at the expense of the clinic. Tr. 17.

 15. The York Hillcrest clinic opened on August 29, 1984. Protests were held that date both in front and behind the facility by pro-life groups. A group of people numbering approximately 150 paraded up and down the sidewalk and at times remained stationary blocking the entrance to the clinic. Tr. 20-22.

 16. From nine to fourteen people were in the back of the building throughout the day on August 29 and would yell at cars entering and leaving the parking lot as well as try to prevent the cars from moving. Tr. 23-24.

 17. On September 8, 1984, the protest outside the York Hillcrest clinic was repeated. A cameraman with an instacamera from WGCB-TV Channel 49 filmed events throughout the day and in particular focused the camera on persons entering and leaving the clinic. Tr. 26.

 18. On September 8, 1984, a crowd at the back of the clinic harassed a young woman and two of her friends as they exited the clinic. The young woman had just had an abortion during which she had had an IV sedation. The crowd taunted the three women as they got into a car. The driver of the car hooked bumpers with another parked car which simply fueled the crowd to make comments such as "It looks pretty bad, but it's not as bad as what you just did in there." At this point, the patient got out of the car and tried manually to unhook the bumpers threatening physical injury to herself. Throughout this period, she was crying and becoming increasingly upset. Tr. 30-31.

 19. On that same day, Ms. Ross had to go to a shopping center and pick up a prospective patient and her parents because they did not want to be identified by any community members because they feared reprisal. Tr. 34.

 20. The York Hillcrest clinic has escalated its security by installing infrared eyes and on occasion hiring an armed private security guard. Tr. 35.

 21. On November 2, 1984, the Court of Common Pleas for York County granted a temporary injunction against the protestors at the request of the York Hillcrest Center limiting the number of protestors at the clinic to five known persons. Tr. 35-36.

 22. On November 3, 1984, the protestors violated the terms of the injunction by appearing in large numbers at the clinic and resuming their previous protest. The York Police, who were apprised of the situation told Ms. Ross that the temporary injunction was unenforceable. Tr. 37.

 23. On January 1, 1985, the Hillcrest clinic in southwest Washington, D.C. was bombed. Tr. 38.

 25. The Hillcrest Women's Medical Centers advertise their services through the yellow pages of the telephone directory, through mailings of brochures to schools, referral agencies, and physicians. Prior to the opening of the York clinic, press statements were released ...


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