reasoning that it can support or foster one point of view when to do so will be to interfere with another group's constitutional rights.
Defendants also contend that the line of cases in which the Supreme Court has held that disclosure is permissible to further the government's interest in deterring illicit activities apply in this case. Relying on Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 6 L. Ed. 2d 625, 81 S. Ct. 1357 (1960), defendants argue that the Commonwealth has a compelling interest in exposing to public view associations which, by their concealment, risk the enlistment of unknowing support.
In Communist Party, the Court was concerned with people involuntarily assisting an organization involved in foreign-directed conspiracy which posed a potential threat to national security. A fundamental flaw with defendants' reliance on these cases is the implication that abortion itself is an illicit activity which of course it is not.
Defendants endeavor to overcome this flaw by arguing that the illicit activity is the activity of shoddy practitioners. While I am mindful that I must not substitute my judgment for that of the legislature, Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981) and I recognize the Commonwealth's concern about shoddy practitioners, I have been presented with no evidence to convince me that the disclosure of the information required by §§ 3207(b) and 3214(f) will deter or reveal shoddy practitioners. Moreover, that this disclosure will have the desired result does not follow so logically from the requirements that the Commonwealth is relieved of its obligation to provide supporting evidence.
Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812, 49 L. Ed. 2d 220, 96 S. Ct. 2488 (1976). The information required pertains only to parent, subsidiary and affiliated organizations and the number of abortions performed; it will reveal nothing about the quality of the service provided. If it becomes apparent that a particular facility or physician is providing services of below average quality, the Commonwealth will have available to it the name and address of any parent, subsidiary or affiliated organizations and will be able to track the "shoddy practitioner" behind the corporate veil. This should be sufficient to further the Commonwealth's interest in deterring shoddy practitioners. Moreover, the Commonwealth's interest is served by the enforcement of medical licensing statutes which do not require public disclosure of the names and addresses of abortion facilities.
The final interest the Commonwealth proffers to justify the disclosure requirements is the need for accurate detailed statistical information. While this interest is tangentially related to the identified interest in protecting maternal health and potential life, it does not rise to the level of a compelling interest sufficiently related to disclosure to justify disclosure.
If state policy-makers or courts need access to this information, the Commonwealth can provide it without making it generally available to the public. Moreover, the Department of Health has recognized that it has no need to match the identity of the facility with its statistical report. Plaintiffs' Exhibit 7. It follows, therefore, that there is no compelling state interest justifying disclosing the information in this form to the general public.
Once plaintiffs have shown a likelihood of success on the merits by showing the likelihood of an unconstitutional infringement on the right to obtain an abortion, the irreparable harm pendente lite requirement is satisfied. Because plaintiffs have established for purposes of a preliminary injunction that disclosure pursuant to §§ 3207(b) and 3214(f) will impose a legally significant burden on the right of a woman to obtain an abortion, they have met the irreparable injury requirement.
Another factor in considering whether to issue a preliminary injunction is the rights of the non-moving party. Because plaintiffs have demonstrated a likelihood of success on the merits, the rights of the non-moving party are overcome by the possibility of irreparable harm to a fundamental constitutional right. In addition to the rights of the non-moving party, I have considered the public interest. Because the public has an interest in both the fundamental individual rights and the legislative process, public interest favors a resolution consistent with my decision on the likelihood of success.
CONCLUSIONS OF LAW
Accordingly, I make the following conclusions of law:
1. The jurisdiction of this court is properly invoked.
2. Plaintiffs have established a reasonable probability that they will prevail on the merits.
3. Plaintiffs have established that they will suffer immediate irreparable injury if the preliminary injunction is not granted.
4. There is neither public interest nor a threat of irreparable injury to another interested party which is sufficient to defeat plaintiffs' request for preliminary relief.
NOW, June 17, 1985, for the reasons stated in the attached findings of fact, discussion and conclusions of law, IT IS ORDERED that:
Defendants are enjoined preliminarily and until final determination of this matter from enforcing the disclosure provisions of 18 Pa. Cons. Stat. Ann. §§ 3207(b) and 3214(f) and reports filed pursuant to §§ 3207(b) and 3214(f) will be maintained in confidence by the Commonwealth and will not be made available for public disclosure.