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PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V.

May 10, 1993

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, REPRODUCTIVE HEALTH AND COUNSELING CENTER, WOMEN'S HEALTH SERVICES, INC., WOMEN'S SUBURBAN CLINIC, ALLENTOWN WOMEN'S CENTER, and THOMAS ALLEN, M.D., Plaintiffs,
v.
ROBERT P. CASEY, N. MARK RICHARDS, ERNEST D. PREATE, and MICHAEL D. MARINO, Defendants.



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 This constitutional challenge to numerous provisions of the 1988 and 1989 amendments to the Pennsylvania Abortion Control Act ("the amended Act"), 18 Pa. Cons. Stat. ยงยง 3201-3220, is back before this Court on remand from the Supreme Court of the United States and the Court of Appeals for the Third Circuit. Plaintiffs have moved to reopen the record so that they may introduce additional evidence to satisfy the burden of proof required by the new "undue burden" standard recently announced by the Supreme Court. *fn1" Plaintiffs also request that this Court continue the existing permanent injunction enjoining sections 3205, 3206, 3207(b), 3214(a)(1), 3214(a)(8), 3214(a)(10), 3214(a)(11) and 3214(f) of the amended Act. In addition, plaintiffs request an order permanently enjoining defendants from enforcing section 3210(a) in a manner inconsistent with this Court's opinion of August 24, 1990, and an order permanently enjoining defendants from enforcing the term "medical emergency" in a manner inconsistent with the court of appeals' broad interpretation of that term as set forth in its opinion of October 21, 1991.

 Defendants oppose each of plaintiffs' requests and contend that the existing permanent injunction should be lifted immediately, except in respect to sections 3209 and 3214(a)(12), the spousal notification provisions, which both parties agree should be permanently enjoined.

 For the reasons set forth in the accompanying memorandum, plaintiffs' motions to reopen the record and to continue the existing injunction shall be granted and plaintiffs' requests for further injunctive relief shall be denied.

 I. INTRODUCTION

 In Planned Parenthood v. Casey, 744 F. Supp. 1323 (E.D. Pa. 1990), many provisions of the amended Act were held unconstitutional and enforcement of those provisions was permanently enjoined. The Court of Appeals for the Third Circuit reversed in part and affirmed in part that judgment, holding all of the challenged provisions constitutional with the exception of the spousal notification provision. Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991).

 The United States Supreme Court in turn affirmed in part and reversed in part the judgment of the court of appeals, holding the challenged provisions constitutional on the record before it, with the exception of the spousal notification provision and its related reporting requirements. Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992). In its decision, the Supreme Court substantially altered the legal framework that this Court relied upon in judging the constitutionality of the amended Act by explicitly rejecting both the strict scrutiny standard of review and the trimester framework set forth in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). See Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791, 2820 (1992). In place of the established standards announced in Roe v. Wade, the Supreme Court adopted the new, less protective "undue burden" standard, under which a law regulating abortion is invalid if found to have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id.

 The case is now before this Court on remand for "such further proceedings as may be appropriate." Planned Parenthood v. Casey, 978 F.2d 74, 78 (3d Cir. 1992). Plaintiffs argue that pursuant to the remand orders and mandates of both the Supreme Court and the court of appeals, this Court should exercise its discretion to reopen the record to hear additional evidence so that they may have an opportunity to meet the more rigorous burden of proof imposed by the newly announced undue burden standard.

 Plaintiffs claim that reopening the record on remand is warranted "where additional testimony would be pertinent to [an intervening] change of law," Skehan v. Board of Trustees, 590 F.2d 470, 479 (3d Cir. 1978) (citing 6A James W. Moore et al., Moore's Federal Practice P 59.04[13] (2d ed. 1974)), cert. denied, 444 U.S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 61 (1972), or where the taking of additional testimony "would insure substantial justice." Rochez Bros., Inc. v. Rhoades, 527 F.2d 891, 895 (3d Cir. 1975), cert. denied, 425 U.S. 993, 48 L. Ed. 2d 817, 96 S. Ct. 2205 (1976). Plaintiffs urge this Court to exercise its discretion to take additional testimony, arguing that the Supreme Court's opinion and remand order clearly support reopening the record. According to plaintiffs, the Supreme Court carefully limited its conclusions regarding the constitutionality of the various provisions under the new standard to the record before it and issued a broad remand order directing further "proceedings consistent with this opinion." Id. at 2833. Further, plaintiffs claim that the court of appeals' actions support reopening the record in that it specifically rejected the Commonwealth's request to brief at the circuit level whether reopening the record was proper, holding that the issue "is not a matter for our court, at least at this time." Planned Parenthood v. Casey, 978 F.2d 74, 78 (3d Cir. 1992).

 In response, defendants contend that granting plaintiffs' motion to reopen the record would be wholly inappropriate because nothing in either appellate court's opinion or mandate directed such action on remand. In fact, defendants argue, to reopen the record would be flatly contrary to the mandates of the Supreme Court and the court of appeals, for those courts have held the challenged provisions constitutional and have entered judgment to that effect. Further, defendants claim that plaintiffs are judicially estopped from arguing that they need to reopen the record to offer additional evidence because until now they have taken the position that the evidence they had submitted proved that the challenged positions were unconstitutional under any standard. Similarly, defendants contend that plaintiffs have waived their opportunity to submit evidence to prove the challenged provisions unconstitutional under the undue burden standard because they chose not do so in prior proceedings.

 The decision of whether this Court should grant plaintiffs' motion and reopen the record, therefore, can be segregated into three separate inquiries: (1) whether a district court has the power to reopen the record of a case on remand without specific instructions from the appellate court to that effect; (2) if so, whether this Court may reopen the record in light of the appellate courts' mandates and the history of the case; and (3) if this Court can reopen the record, whether it should exercise its discretion to do so. I shall treat each of these inquiries in turn, and because I find that the answer to each is yes, I shall then address plaintiffs' requests for further injunctive relief.

 II. DISCUSSION

 A. The Power of a District Court to Reopen the Record

 The question of whether to reopen the record is a matter for the sound discretion of a trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Rochez Bros., Inc. v. Rhoades, 527 F.2d 891, 894 (3d Cir. 1975),cert. denied, 425 U.S. 993, 48 L. Ed. 2d 817, 96 S. Ct. 2205 (1976). A court may exercise this discretion to reopen the record when an intervening change of law has occurred while an action is pending, Skehan v. Board of Trustees, 590 F.2d 470, 479 (3d Cir. 1978), cert. denied, 444 U.S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 61 (1979), or in any other situation in which justice requires that additional proof be heard. Rochez, 527 F.2d at 895.

 Although defendants acknowledge that a district court has the power to reopen the record in the above situations, they claim that an exercise of this discretion is improper when an appellate court has not specifically remanded for reconsideration of the issue for which additional testimony is needed. Accordingly, defendants argue that plaintiffs' reliance on Skehan and Rochez is misplaced because, in both cases, the Third Circuit held that it was within the district court's discretion to decide whether to reopen the record on issues that it had specifically remanded for reconsideration.

 Defendants' reasoning leads to an anomalous conclusion: although a decision to reopen the record is left to the sound discretion of the trial court, the exercise of that discretion must be "pre-approved" by the remanding appellate court. This result is clearly incorrect in light of the well-settled principle that on remand, a trial court is free to make any order that is not inconsistent with the appellate decision as to any question not settled by that decision. Delgrosso v. Spang & Co., 903 F.2d 234, 240 (3d Cir.), cert. denied, 498 U.S. 967, 112 L. Ed. 2d 412, 111 S. Ct. 428 (1990). In fact, on remand a trial court "may consider, as a matter of first impression, those issues not expressly or implicitly disposed of by the appellate decision." Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 950 (3d Cir. 1985) (emphasis added).

 Hence, the failure of the court of appeals and the Supreme Court to specifically instruct the trial court to take further evidence or to reexamine the amended Act's constitutionality on a supplemented record does not preclude this Court from taking such action. Instead, the appellate courts' "failure to specify that further evidence should be taken on remand could, at most, be construed as leaving a decision on the need to reopen the record to the sound discretion of the trial court." Skehan, 590 F.2d at 478. Unless the appellate courts have definitively ruled, either explicitly or impliedly, on the issues plaintiffs wish to address with their new evidence, this Court has the power to reopen the record.

 B. The Appellate History of this Action

 Having answered the first inquiry -- whether a district court has the authority to reopen the record without specific direction from the appellate court -- in the affirmative, I shall now address whether anything in the history of this litigation precludes this court from exercising that authority. Defendants assert that the appellate courts' decisions and mandates preclude granting plaintiffs' motion because both courts have already ruled on the statute's constitutionality, and a lower court cannot reconsider matters already decided by a higher court. Further, defendants claim that plaintiffs should be judicially estopped from seeking to reopen the record and that they have waived the issue they now wish to address. Finally, defendants contend that because plaintiffs' challenge is a facial challenge to the amended Act, hearing more evidence would not be helpful because the Supreme Court has held that the challenged provisions, except for the spousal notification provisions, can be applied constitutionally. Barnes v. Moore, 970 F.2d 12 (5th Cir), cert. denied, 121 L. Ed. 2d 582, 113 S. Ct. 656 (1992).

 (1) Whether the Appellate Courts' Mandates Prohibit This Court From Reopening the Record

 As defendants correctly assert, it is patently clear that on remand a lower court may not review the decision of a higher court. Briggs v. Pennsylvania R.R., 334 U.S. 304, 306-07, 92 L. Ed. 1403, 68 S. Ct. 1039 (1948); Gaines v. Rugg, 148 U.S. 228, 37 L. Ed. 432, 13 S. Ct. 611 (1893). Accordingly, a lower court with jurisdiction over a case on remand under a Supreme Court mandate cannot reconsider matters decided by the Supreme Court. Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert. denied, 390 U.S. 956, 19 L. Ed. 2d ...


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