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AMERICAN COLLEGE OF OBSTETRICIANS & GYNECOLOGISTS

March 9, 1987

American College Of Obstetricians And Gynecologists, Pennsylvania Section, et al.
v.
Richard Thornburgh, et al.



The opinion of the court was delivered by: HUYETT

 The Pennsylvania Abortion Control Act (Act), 18 Pa. Cons. Stat. §§ 3201-3220 (1983), became law on June 11, 1982. Plaintiffs immediately filed suit challenging the constitutionality of a number of its provisions, and moved for a preliminary injunction. I granted a preliminary injunction as to section 3205 *fn1" and held the remainder of the Act constitutional. American College of Obstetricians and Gynecologists v. Thornburgh, 552 F. Supp. 791 (E.D. Pa. 1982).

 Cross-appeals were filed before the Third Circuit, which granted a stay of enforcement of the Act pending appeal. Following the initial briefing and argument, the Third Circuit ordered the matter held pending the Supreme Court's decisions in three cases then before it. *fn2" After those decisions were handed down, the court of appeals ordered additional briefing and heard reargument. American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 (3d Cir. 1984) (American College). Because of the unusual posture of the case and the completeness of the record before it, the Third Circuit exercised plenary review. The court found that a number of the provisions of the statute were unconstitutional, while upholding others. Id. The Supreme Court affirmed. American College of Obstetricians and Gynecologists v. Thornburgh, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779 (1986) (Thornburgh).

 Only one matter remains before this court. Section 3206 requires that a pregnant woman who is under eighteen years of age and is not emancipated, or who has been adjudged incompetent, obtain either parental consent *fn3" or judicial authorization for an abortion. The woman may elect to seek judicial authorization without notifying her parents. 18 Pa. Cons. Stat. § 3206(c). The court must authorize the abortion if it determines that the woman is mature and capable of giving informed consent to the abortion and has, in fact, given such consent. Id. The court must also authorize the abortion if it finds that the abortion is in the best interests of a woman who is not mature or not capable of giving informed consent. 18 Pa. Cons. Stat. § 3206(d).

 Initially, I upheld section 3206, finding that it met the requirements set forth in Justice Powell's plurality opinion in Bellotti v. Baird, 443 U.S. 622, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979) (Bellotti II). On appeal, the Third Circuit did not invalidate section 3206, but did find procedural deficiencies in the Act which must be remedied before it could constitutionally be enforced. American College, 737 F.2d at 297. Comparing section 3206 with the Missouri statute upheld by the Supreme Court in Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476, 76 L. Ed. 2d 733, 103 S. Ct. 2517 (1983), the court noted that the Pennsylvania Act lacked the "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" which were present in the Missouri statute. American College, 737 F.2d 283, 297. The Third Circuit held that "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." Id.

 The Pennsylvania Supreme Court has now promulgated rules governing proceedings pursuant to section 3206. Orphan's Court Rules 16.1-16.8, reprinted in 20 Pa. Cons. Stat. following § 794 (Supp. 1986). Defendants seek to vacate the injunction against the enforcement of section 3206. *fn4" Plaintiffs oppose enforcement of section 3206, arguing that the rules are unconstitutional in a number of respects. Plaintiffs ask this court to continue the injunction until such time as the Pennsylvania Supreme Court corrects the alleged defects in the rules. *fn5" I will address plaintiffs' specific challenges to the rules seriatim.

 I note at the outset that, whatever their shortcomings, it appears clear that the provisions of rule 16 represent a good faith effort by the Commonwealth to comply with the standards articulated in the plurality opinion in Bellotti II and other Supreme Court cases. However, the issue before me is whether the rules sufficiently ensure "confidentiality and dispatch" and establish a sufficiently "clear and simple procedure" to allow them to pass constitutional muster. I note further that the issue is not whether this court believes that the Commonwealth has chosen the best alternative before it, but whether the alternative chosen is constitutionally permissible. The fact that I feel another course would have been more prudent does not render a rule unconstitutional.

 RULE 16.4

 Rule 16.4 provides that:

 
All proceedings conducted in accordance with these rules and pursuant to 18 Pa. C.S. § 3206 shall be confidential. . . . All persons shall be excluded from the hearings except the applicant, her parent or persons standing in loco parentis, and such other persons whose presence is specifically requested by the applicant or her guardian.

 (emphasis added).

 Plaintiffs interpret this provision as giving the parents an absolute right to attend the hearing. They argue that such an absolute right is unconstitutional because the mere presence of the parents in the courtroom may interfere with the mature minor's right to make an independent decision. Plaintiffs would have no objection to the rule if the emphasized portion were deleted.

 I agree with the plaintiffs that, in some cases, the minor *fn6" will be sensitive to the presence of her parents in the courtroom. However, the question is not whether there will be some influence exerted on the minor, but whether the parents' presence in the courtroom will have a legally significant impact on the minor's abortion decision. American College, 737 F.2d 283, 302.

 The statute clearly provides that the minor may seek judicial authorization without any prior parental notification. Thus, we are concerned here only with parents who have learned of the judicial process from the minor herself, or through some independent source. By definition, the parents or guardian of an unemancipated minor have access to her outside the courtroom. If the parents have learned of the minor's decision to seek an abortion, and wish to interfere with that decision, it must be assumed that they will attempt to do so outside the judicial proceeding. The state cannot prevent the parents from attempting to influence the minor's decision outside the judicial proceeding. There is no reason to think that the additional pressure exerted by the parents' mere presence in the courtroom will deter the minor from seeking judicial authorization for an abortion.

 In his plurality opinion in Bellotti II, Justice Powell recognized the important state interest in encouraging a family rather than a judicial resolution of a minor's abortion decision, and the parents' natural interest in the welfare of their children. The plurality held that parental consultation may be required where such consultation would be in the best interests of an immature minor. Id. at 648 (emphasis added). However, "this is the full extent to which parental involvement may be required." Id.

 Rule 16.4 merely permits parents who have already learned of the judicial proceeding to observe that proceeding. This is not inconsistent with Bellotti II. Justice Powell's holding that no further parental involvement could be required was made in the context of a notification requirement. Observation is not synonymous with consultation. *fn7" To allow concerned parents to observe judicial proceedings, without giving them an absolute right to further participation in those proceedings, falls far short of requiring a minor to notify her parents of the proceedings.

 Because the parents have access to the child outside the courtroom, and in recognition of the importance of the parents' role in raising the adolescent and their interest in her welfare, I do not believe that granting the parents an absolute right to observe the judicial proceeding can be said to unconstitutionally interfere with the child's right to obtain an abortion.

 Moreover, I note that Rule 16.4 is susceptible to a more narrow interpretation than the reading given it by the plaintiffs. Rule 16.4 is directed toward preserving the confidentiality of the proceedings. The Commonwealth's position is that Rule 16.4 merely exempts the parents from the blanket prohibition against members of the public observing the proceedings. Under this interpretation, the trial judge would still be able to exclude the parents if he determines that their exclusion is in the best interests of the child or is required by the relevant case law.

 The Missouri statute upheld in Ashcroft did not contain a requirement that parents be absolutely excluded from the judicial proceedings. Mo. Ann. Stat. § 188.028 (Supp. 1987). I conclude that a rule which neither absolutely excludes parents from the proceedings nor gives them an absolute right to attend does not infringe the constitutional rights of the minor.

 Where a rule is readily susceptible of two or more interpretations, at least one of which is constitutional, I must construe the rule in such a manner as to render it constitutional. American College, 737 F.2d 283, 300. I hold that a rule which does not require parental notification, but grants the parents of a minor an absolute right to observe the hearing if they learn of the judicial proceedings, is constitutional. In the alternative, I hold that rule 16.4 can be construed as simply exempting parents of the minor from its blanket prohibition against public observation of the hearing, leaving the trial judge the power to exclude the parents in an appropriate case, and that such a rule is constitutionally permissible.

 RULE 16.3 *fn8"

 Rule 16.3 concerns representation of the pregnant woman in the judicial proceedings, and provides:

 
The pregnant minor woman may participate in the court proceedings on her own behalf, and the court may appoint a guardian ad litem for her.
 
The court shall advise the pregnant minor woman that she has a right to court-appointed counsel and shall, upon her request, provide her with such counsel.
 
The court also shall advise her that she has a right to retain private counsel at her own expense.

 The plaintiffs' challenge to rule 16.3 is two-fold. They argue, first, that the rule is unconstitutional because it fails to mandate the appointment of counsel in all cases. In addition, they argue that the rule is unconstitutional because it fails to provide guidance to the court as to the appropriate circumstances for the appointment of a guardian ad litem or the role of the guardian once appointed.

 1. Appointment of Counsel.

 While I agree with plaintiffs that the Commonwealth might have made a more prudent choice by requiring the appointment of counsel in every case, I cannot say that the alternative selected by the Commonwealth is unconstitutional. Rule 16.3 requires the court to inform the minor of her right to court-appointed counsel, but does not require the appointment of counsel unless requested by the minor. Plaintiffs argue that the immature minor is not capable of understanding the importance of legal representation, and therefore the state should not impose upon her the affirmative burden of requesting counsel. Plaintiffs would require the court to ...


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