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decided: May 31, 1988.


Original Jurisdiction in the case of JoAnne Fischer, Susan Roe, suing on behalf of themselves and all others similarly situated, Women Organized Against Rape, Concern for Health Options, Information, Care and Education, suing on behalf of themselves and all others similarly situated, Dr. Kaighn Smith and Elizabeth Blackwell Health Center for Women v. Department of Public Welfare, John White, Eileen M. Schoen and Robert Casey.


Stefan Presser, American Civil Liberties Union of Pennsylvania, with him, Seth F. Kreimer, University of Pennsylvania School of Law, and Kathryn Kolbert, Woman's Law Project, for petitioners.

Gregory R. Neuhauser, Senior Deputy Attorney General, with him, Kate L. Mershimer, Deputy Attorney General, John G. Knorr, III, Senior Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 116 Pa. Commw. Page 438]

Petitioners*fn1 have filed a motion for preliminary injunction in our original jurisdiction, 42 Pa. C. S. § 761,

[ 116 Pa. Commw. Page 439]

    to enjoin the enforcement of provisions of Act 31 of 1988 which amend Sections 3215(c)(2), (3), and 3215(j)(1)-(3) (Act 31)*fn2 of the Commonwealth's Abortion Control Act, 18 Pa. C. S. §§ 3201 -- 3220.*fn3 These provisions prohibit

[ 116 Pa. Commw. Page 440]

    in part government subsidization of abortions except where pregnancy is caused by rape or incest and the victim personally reports the incident to a law enforcement or child protective agency prior to the medical procedure.

The ultimate legal issue in this litigation is whether Act 31's reporting requirements violate a woman's right to privacy pronounced in article I, section 1 of the Pennsylvania Constitution.*fn4

At hearing on May 5, 1988, counsel for petitioners and the Commonwealth entered into 151 stipulations of fact and agreed to enter as evidence the notes of testimony, pages 80 through 202, produced at the February 7 and 8, 1984 hearings in Fischer v. Department of Public Welfare, 85 Pa. Commonwealth Ct. 215, 482 A.2d 1137 (1984). That case involved constitutional challenges to the Public Welfare Code (Code)*fn5 and the 1982

[ 116 Pa. Commw. Page 441]

Abortion Control Act. Additionally, petitioners presented the testimony of Dr. Ellen Frank, Ph.D., who had also testified at this Court's 1984 proceeding. The Commonwealth did not present any evidence on its behalf but did file an answer to interrogatories.

Preliminary Injunction Standard

An injunction is properly granted only where petitioners establish a threat of immediate and irreparable harm and a clear right to relief. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982). Although a clear right need not be proved absolutely, Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 426 A.2d 1123 (1981), we must emphasize that it is petitioners' burden to overcome the presumption of constitutionality which attaches to legislative enactments. Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974).

The petitioners specifically contend that the requirements that women report they are victims of rape or incest and that the Department of Public Welfare verify such report prior to disbursing public funds for an abortion, are unconstitutional because they require disclosure of personal matters protected by the constitutional right to privacy.

Initially, it must be stressed that this case does not involve a woman's right to have an abortion. Rather, the issue is: Where the Commonwealth decides to offer public funds to women seeking to terminate pregnancies caused by criminal acts, may the Commonwealth require, as a condition precedent, vital information relating to those criminal acts?

Evidence and Argument

The constitutional right to privacy includes two classes of interests: (1) freedom from interference in the

[ 116 Pa. Commw. Page 442]

    making of certain important personal decisions; and (2) freedom from the disclosure of certain matters which an individual deems so personal that publication adversely affects one's right to the pursuit of life, liberty and happiness. In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980).

The first prong of this privacy right protects a woman from unduly burdensome state interference with the freedom to choose whether to terminate her pregnancy. Roe v. Wade, 410 U.S. 113, reh'g denied, 410 U.S. 959 (1973). However, in Harris v. McRae, 448 U.S. 297 (1980), the United States Supreme Court determined that a woman's freedom of choice during pregnancy does not carry with it a constitutional entitlement to federal or state monies necessary to avail herself of the full range of protected alternatives.

This Court has recognized that the second prong protects a woman's freedom to withhold certain information during pregnancy in the context of reporting requirements for subsidized abortions. Fischer, 85 Pa. Commonwealth Ct. 240, 482 A.2d 1148 (1984). This protection from disclosure is not absolute but is subject to limitation by countervailing state interests. Denoncourt v. State Ethics Commission, 504 Pa. 191, 470 A.2d 945 (1983).

It is this second prong which petitioners assert is to be protected here. Hence, to determine the extent of permissible governmental intrusion, the court must balance the individual's privacy right against the countervailing public interest. Id. In Denoncourt, ...

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